Wakilii

Engineering Solutions (U) Limited v Ministry of Water and Environment (Application No 24 of 2021)

Tribunal · [2021] UGPPDPAAT 21 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of procurement process before the Public Procurement and Disposal of Public Assets Appeals Tribunal
Decision
Application dismissed; procurement process allowed to continue

Observed later treatment

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Holding

The Tribunal held that the Accounting Officer erred by failing to make and communicate a decision within the statutory ten-day period. The Tribunal found that the Entity did not breach the law by not seeking advice from the Chief Mechanical Engineer before issuing the bidding document, as such advice is guidance rather than a binding requirement. The specifications were not restrictive merely because they did not suit the Applicant's preferences. The Respondent erred by identifying the Applicant as the author of a clarification request, breaching confidentiality requirements. The procurement was not suspended immediately upon receipt of the administrative review application, constituting dilatory conduct. The application was dismissed and the procurement allowed to proceed.

Outcome

Application dismissed; procurement process allowed to continue

Facts

The Ministry of Water and Environment published an invitation for bids for the procurement of five farm tractors and assorted tractor implements for five irrigation schemes. Engineering Solutions (U) Ltd, the Applicant, purchased the bidding document and requested clarifications on specifications on 27 August 2021. The Respondent responded on 13 August 2021, identifying the Applicant as the author of the request. The bid submission deadline was extended twice, with Addendum No. 1 issued on 21 September 2021 revising tractor specifications but sent to all bidders except the Applicant until 1 October 2021. On 13 October 2021, the Applicant filed an administrative review application with the Accounting Officer on four grounds, including that the Entity did not seek advice from the Chief Mechanical Engineer, that the bidding document contained restrictive specifications, that it lacked adequate after-sales service specifications, and that Addendum No. 1 significantly altered requirements. The Respondent suspended the procurement on 22 October 2021 and invited bidders to a hearing on 27 October 2021. The Accounting Officer did not make or communicate a decision within the statutory ten-day period, prompting the Applicant to file this application with the Tribunal on 27 October 2021.

Issues

  1. Whether the Accounting Officer of the Respondent erred in law and fact when he did not make and communicate the administrative review decision in respect to the Applicant's complaint within the prescribed time frame.
  2. Whether the Respondent erred in failing to seek advice from a competent authority (the Chief Mechanical Engineer, Ministry of Works and Transport) regarding the specifications of the requirements prior to issuing the bidding document.
  3. Whether the bidding document for the impugned procurement contains restrictive specifications in contravention of the Public Procurement and Disposal of Public Assets Act 2003.
  4. Whether the Respondent erred in law when it identified the Applicant as the author of the request for clarifications.
  5. Whether the bidding document for the impugned procurement lacks adequate specifications regarding requirements for after sales service centre / support and training of personnel in contravention of the Public Procurement and Disposal of Public Assets Act 2003 and the African Development Bank Guidelines.
  6. Whether Addendum No. 1 significantly altered the requirement's engine power specification and therefore there should have been an open notice to the public as opposed to the invitation of only the bidders that had purchased the bidding document.
  7. Whether the procurement process was immediately suspended upon receipt of the Applicant's administrative review application as prescribed in the law.
  8. What remedies are available to the parties.

Orders

  • The Application is dismissed.
  • The Respondent may continue with the procurement to its logical conclusion.
  • The Tribunal's suspension order dated 25th October 2021 is vacated.
  • Each party shall bear its own costs.

Rules and key headnotes

Public Procurement — Administrative Review — Accounting Officer's Duty to Decide Within Statutory Period
Under section 89(7) of the Public Procurement and Disposal of Public Assets Act as amended, an Accounting Officer must make and communicate a decision on an administrative review complaint within ten working days of receipt. The duty to investigate, make and communicate a decision is statutorily bestowed on the office of the Accounting Officer and no other entity. Where an Accounting Officer fails to make or communicate a decision within the prescribed period, a bidder may make an application to the Tribunal under section 89(8).
Public Procurement — Technical Specifications — Advice from Chief Mechanical Engineer
Advice from the Public Procurement and Disposal of Public Assets Authority to seek technical guidance from the Chief Mechanical Engineer on motor vehicle specifications is not a binding gazetted guideline under section 97 of the Act. The Chief Mechanical Engineer is required to guide and advise the Entity, not to approve technical specifications. It is not necessarily unlawful for an Entity to issue an invitation for bids without having first sought or received advice from the Chief Mechanical Engineer.
Public Procurement — Restrictive Specifications — Burden of Proof
A bidder alleging that specifications are restrictive must prove the restriction. Specifications that do not refer to any particular trademark, brand name, patent, design, type, specific origin, producer, manufacturer, catalogue or numbered item are not restrictive under regulation 28(1) of the Public Procurement and Disposal of Public Assets (Rules and Methods for Procurement of Supplies, Works and Non-Consultancy Services) Regulations. A bidder should bid for and provide supplies that suit the specifications of the Entity. A bidder should not cajole the Entity to issue specifications that suit that particular bidder by claiming that the original specifications are restrictive merely because the bidder is unable to compete with other bidders who are willing to comply with the specifications.
Public Procurement — Clarification Requests — Confidentiality of Source
Under regulation 49(3) of the Public Procurement and Disposal of Public Assets (Rules and Methods for Procurement of Supplies, Works and Non-Consultancy Services) Regulations, where a request for clarification is received, the procuring and disposing entity shall promptly provide a clarification in writing and the clarification shall be copied to all bidders to whom the bidding documents were issued, and shall include a description of the request without identifying the source of the request. A procuring entity errs in law when it identifies the author of a request for clarifications.
Public Procurement — Addenda — No Requirement for Public Notice
Under regulation 49(4) and (8) of the Public Procurement and Disposal of Public Assets (Rules and Methods for Procurement of Supplies, Works and Non-Consultancy Services) Regulations, at any time before the deadline for submission of bids, the procuring and disposing entity may amend the bidding documents by issuing an addendum. The addendum shall be issued in writing and the same information shall be provided to all the bidders. There is no legal requirement to issue an open notice to the public when issuing an addendum.
Public Procurement — Suspension of Procurement — Immediate Action Required
Under section 89(5) of the Public Procurement and Disposal of Public Assets Act as amended, on receiving a complaint, the Accounting Officer shall immediately suspend the procurement or disposal process. Action informing the Entity of a complaint and directing suspension of further proceedings should be issued no later than two working days after the authority has received a complaint from the decision of an Accounting Officer. Failure to suspend the procurement within two working days from receipt of the complaint amounts to dilatory conduct and inordinate delay on the part of the Accounting Officer.

Legislation cited (23)

Cases cited (6)

  • Galleria in Africa Limited v UEDCL (Civil Appeal No. 8 of 2017)
  • Globe World Engineering (U) Ltd v PPDA & Jinja Municipal Council (Application No. 1 of 2018)
  • Globe World Engineering (U) Ltd v Jinja City Council (Application No. 11 of 2021)
  • Globe World Engineering (U) Ltd v Mbale City Council (Application No. 21 of 2021)
  • Dott Services Ltd v Public Procurement and Disposal of Public Assets Authority (PPDA) and UNRA (Application No. 3 of 2017)
  • Engineering Solutions (U) Ltd v PPDA & Ministry of Water and Environment (Application No. 5 of 2020)

Full judgment

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

Engineering Solutions (U) Limited v Ministry of Water and Environment (Application No 24 of 2021) 2021 UGPPDPAAT 21 (17 November 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.