Wakilii

EAA Company Limited v Uganda National Bureau of Standards (Application 21 of 2023)

Tribunal · [2023] UGPPDPAAT 23 · 2023 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of decision not to extend contract for pre-export verification services
Decision
Contract extension to Quality Inspection Services Inc. Japan invalidated; Respondent directed to conduct emergency procurement for interim service providers within 30 days

Observed later treatment

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Holding

The Tribunal held it had jurisdiction to review contract management decisions under the Public Procurement Act. The Applicant had locus standi as a person adversely affected by the Accounting Officer's decision. The Respondent was entitled not to extend the Applicant's fixed-term contract as there was no legitimate expectation of extension, but the reasons given were legally untenable. The extension granted to Quality Inspection Services Inc. Japan was unlawful for failing to comply with mandatory contract amendment procedures requiring contracts committee and Attorney General approval. The Tribunal invalidated the extension and directed emergency procurement of interim service providers.

Outcome

Contract extension to Quality Inspection Services Inc. Japan invalidated; Respondent directed to conduct emergency procurement for interim service providers within 30 days

Facts

On May 26, 2020, UNBS executed a 3-year contract with EAA Company Ltd for provision of pre-export verification of conformity services for used motor vehicles, with commencement on June 1, 2020. A similar contract was executed with Quality Inspection Services Inc. Japan. Both contracts were due to expire on May 31, 2023. Pending completion of a new procurement process, UNBS extended both contracts: first for one month to June 30, 2023, then for two months to August 31, 2023. In August 2023, the Tribunal cancelled the new procurement process in Applications 15, 17 and 18 of 2023. On August 23, 2023, UNBS extended Quality Inspection Services Inc. Japan's contract for 12 months. On August 31, 2023, UNBS informed EAA Company Ltd it would not extend their contract beyond August 31, 2023, citing the Tribunal's findings and launching an investigation into procurement processes from 2018 to present. EAA Company Ltd filed this application on September 1, 2023.

Issues

  1. Whether the Tribunal has jurisdiction to entertain the Application?
  2. Whether the Applicant has locus standi before the Tribunal?
  3. Whether the Respondent's decision not to extend the Applicant's contract was lawful?
  4. Whether the extension of the contract of Quality Inspection Services Inc. Japan was lawful?
  5. What remedies are available to the parties?

Orders

  • Application allowed in part.
  • Respondent's decision dated August 23, 2023 to extend the contract of Quality Inspection Services Inc. Japan for 12 months effective September 1, 2023 is invalidated.
  • Respondent directed to procure interim service provider(s) within 30 days to provide pre-export verification of conformity for used motor vehicles pending substantive re-tendering.
  • Respondent may conduct procurement of interim service provider(s) as emergency procurement under applicable provisions of the Public Procurement and Disposal of Public Assets Act.
  • Tribunal's suspension order dated September 1, 2023 is vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Administrative Law — Jurisdiction of PPDA Appeals Tribunal — Contract Management Decisions
The Public Procurement and Disposal of Public Assets Appeals Tribunal has jurisdiction to review contract management decisions made by a Procuring and Disposing Entity, as the statutory definition of 'procurement process' includes contract management, and such decisions may be reviewed where they adversely affect a person's rights pursuant to section 91I(1)(b) of the Public Procurement and Disposal of Public Assets Act.
Administrative Law — Jurisdiction — Arbitration Clauses in Public Procurement Contracts
General provisions of the Arbitration and Conciliation Act and arbitration clauses in procurement contracts do not oust the specific statutory jurisdiction of the Public Procurement and Disposal of Public Assets Appeals Tribunal to review decisions of Accounting Officers, as the principle of generalia specialibus non derogant applies to exclude the general Arbitration Act in favour of the specific Public Procurement Act.
Administrative Law — Locus Standi — Non-Bidders Before PPDA Tribunal
Applications to the Public Procurement and Disposal of Public Assets Appeals Tribunal are not restricted to bidders only but extend to any person whose rights are adversely affected by a decision of the Accounting Officer as provided under section 91I(1)(b) of the Act, and an applicant need not be a bidder or have applied for administrative review before the Accounting Officer.
Contract Law — Legitimate Expectation — Fixed-Term Contracts
A fixed-term contract does not create a legitimate expectation of renewal or extension where there is no renewal or extension clause in the contract and no express, clear and unambiguous promise by the contracting party that the contract would be renewed or extended; a mere hope or expectation of extension does not constitute legitimate expectation.
Contract Law — Contract Extension vs Contract Renewal — Distinction
A contract renewal involves renewal of an existing contract on similar terms and creates a new contract, whereas a contract extension is the addition of extra duration to an existing contract and is a continuation of the existing contract, not a new contract.
Administrative Law — Public Procurement — Contract Amendment Procedures
Extension of the duration of a public procurement contract requires compliance with mandatory contract amendment procedures including issuance of a change order by the Contract Manager, approval by the contracts committee, and approval by the Attorney General as required by regulation 55(6) and (7) of the Public Procurement and Disposal of Public Assets (Contracts) Regulations 2014 and the General Conditions of Contract, regardless of whether there is an increase in contract price.
Administrative Law — Merits Review — Powers of PPDA Appeals Tribunal
The Public Procurement and Disposal of Public Assets Appeals Tribunal is a merits review body with wide powers to set aside the original decision and substitute it with a new decision of its own, including authority to consider both the lawfulness of the procurement decision and the facts going to the exercise of discretion, provided all interested parties are given an opportunity to present their case and procedural fairness is observed.

Legislation cited (19)

Cases cited (8)

  • China Civil Engineering and Construction Corporation v Uganda National Roads Authority (Application No. 11 of 2023)
  • Impiger Technologies Pvt Ltd v Higher Education Students Financing Board (Application No. 45 of 2022)
  • Central Investments Agency Ltd v Mbale City Council (Application No. 26 of 2021)
  • Globe World Engineering (U) Ltd v Mbarara City Council (Application No. 14 of 2023)
  • Application No. 21 of 2022
  • Andrew Kilama Lajul v Uganda Coffee Development Authority & Another (Miscellaneous Cause No. 270 of 2019)
  • Arua Municipal Council v Arua United Transporters' SACCO (Civil Appeal No. 25 of 2017)
  • Applications No. 15, 17 and 18 of 2023

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

EAA Company Limited v Uganda National Bureau of Standards (Application 21 of 2023) 2023 UGPPDPAAT 23 (22 September 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.