Wakilii

Elite Chemicals Limited v Uganda Coffee Development Authority (Application No 8 of 2021)

Tribunal · [2021] UGPPDPAAT 5 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of the decision of the Accounting Officer of Uganda Coffee Development Authority following dismissal of administrative review application
Decision
Application allowed; administrative review decision set aside; procurement remitted for fresh evaluation

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that the Accounting Officer and Contracts Committee erred in cancelling the contract award to Elite Chemicals Limited. The due diligence process violated natural justice principles by failing to notify the Applicant of the inquiry, not sharing adverse findings before making a decision, and exceeding evaluation criteria by investigating historical compliance with the Agricultural Chemicals Act. The Contracts Committee acted without jurisdiction by cancelling the award and making a fresh award without a fresh evaluation from the procurement unit. The procurement was remitted for fresh evaluation in accordance with the PPDA Act.

Outcome

Application allowed; administrative review decision set aside; procurement remitted for fresh evaluation

Facts

Uganda Coffee Development Authority invited bids for supply of Imidacloprid pesticides. Two bidders submitted bids: Trust Chemicals Ltd and Elite Chemicals Limited. The Evaluation Committee recommended Elite Chemicals as the best evaluated bidder and the Contracts Committee approved the award on 9 April 2021. However, the Accounting Officer conducted a due diligence and on 14 May 2021 shared findings alleging Elite Chemicals lacked required experience, submitted forged documents, and breached the Agricultural Chemicals Act by trading without certificates in 2018-2019. The Contracts Committee on 25 May 2021 cancelled the award to Elite Chemicals and awarded the contract to Trust Chemicals. Elite Chemicals applied for administrative review which was dismissed on 21 June 2021, leading to this application to the Tribunal.

Issues

  1. Whether the Accounting Officer erred in law and fact when he dismissed the Applicant's application for administrative review on the ground that the Applicant submitted documents with irregularities.
  2. What remedies are available to the parties.

Orders

  • The Application is allowed.
  • The administrative review decision of the accounting officer of the Respondent is set aside.
  • The procurement is remitted back to the Entity, with directions to conduct a fresh evaluation, post qualification and due diligence (if necessary), in a manner consistent with this decision, the PPDA Act and regulations and the bidding document.
  • The Entity must refund the administrative review fees paid by the Applicant.
  • The Tribunal's suspension order dated July 12, 2021 is hereby vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Public Procurement — Natural Justice — Audi Alteram Partem Rule — Due Diligence
Where an administrative authority conducts a due diligence and makes adverse findings against a bidder, natural justice demands that the affected bidder must be given notice of the inquiry, informed of the adverse findings, and given a chance to make representations before any adverse decision is taken.
Public Procurement — Evaluation Criteria — Scope of Due Diligence
A due diligence test should be relevant to the bid and should not extend to extraneous or remote matters which have no proximity to the evaluation criteria. Extending post-qualification or due diligence to historical compliance with various laws would amount to an unlawful departure from the evaluation criteria.
Public Procurement — Contracts Committee — Jurisdiction to Award Contracts
A Contracts Committee has exclusive jurisdiction to award contracts and must act on recommendations from the procurement and disposal unit. A Contracts Committee cannot cancel a contract award and make a fresh award in the absence of any fresh evaluation or submission by the procurement and disposal unit.
Public Procurement — Accounting Officer — Disagreement with Contracts Committee
Where an Accounting Officer does not agree with a decision of the Contracts Committee, the law provides only two options: return the decision with reasons for rejection to the Contracts Committee for review, or refer the decision with reasons to the Authority for independent review. The Accounting Officer cannot simply return the matter to the Contracts Committee with a due diligence report without making a determination as required by law.
Natural Justice — Breach of Audi Alteram Partem Rule — Effect
A decision arrived at in breach of the audi alteram partem rule is of no consequence in the same way as a decision made without jurisdiction is a nullity and void ab initio. Where an administrative agency acts contrary to the rule of natural justice, it exceeds powers conferred upon it by Parliament.
Public Procurement — Preliminary Objections — Wrong Citation of Sections
The jurisdiction of the Public Procurement and Disposal of Public Assets Appeal Tribunal is conferred by statute and is not affected by the non-citation or wrong citation of the applicable sections.
Public Procurement — Statutory Notice — Effect of Failure to Serve
Failure to serve statutory notice does not vitiate proceedings before the Public Procurement and Disposal of Public Assets Appeal Tribunal.

Legislation cited (21)

Cases cited (8)

  • Kampala Capital City Authority v Kabandize and 20 Others (Supreme Court Civil Appeal No. 13 of 2014)
  • Mpungu & Sons Transporters Ltd v Attorney General & Kambe Coffee Factory (Coach) Ltd (Supreme Court Civil Appeal No. 17 of 2001)
  • Asobasi Daniel Okumu v Uganda Law Council & Law Development Centre (High Court Miscellaneous Cause No. 317 of 2017)
  • Simon Gakuo v Kenyatta University and 2 others Miscellaneous Civil Application No. 34 of 2009
  • Coil Limited v PPDA & UNRA (PPDA Appeal Tribunal Application No. 3 of 2021)
  • Ojangole Patricia & 4 Others v Attorney General (High Court Miscellaneous Cause No. 303 of 2013)
  • Onyango Oloo Vs Attorney General [1986 -1989] EA 456
  • Matovu & 2 Others v Sseviri & Another [1979] HCB 174

Full judgment

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

Elite Chemicals Limited v Uganda Coffee Development Authority (Application No 8 of 2021) 2021 UGPPDPAAT 5 (29 July 2021)
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.