Wakilii

Gat Consults Limited and Lee Construction Limited v Public Procurement and Disposal of Public Assets Authority and Another (Application No 6 of 2021)

Tribunal · [2021] UGPPDPAAT 19 · 2021 Application Partly Allowed — Matter Remitted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of PPDA decision rejecting administrative review of tender evaluation and award
Decision
Matter remitted to the Ministry of Water and Environment for re-evaluation of bids in accordance with the Tribunal's decision, the PPDA Act and regulations, and the bidding document

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that the Ministry of Water and Environment failed to comply with its statutory duty under section 89(2) of the PPDA Act 2003 to provide the applicant with a summary of the evaluation process and a comparison of tenders including evaluation criteria used. The Tribunal further held that the evaluation and elimination of the applicant's bid was unlawful because the evaluation criteria relating to similarity of previous projects was not properly and uniformly applied to all bidders, and the stage and reasons for elimination remained unclear. The matter was remitted for re-evaluation.

Outcome

Matter remitted to the Ministry of Water and Environment for re-evaluation of bids in accordance with the Tribunal's decision, the PPDA Act and regulations, and the bidding document

Facts

On 27 November 2020, the Ministry of Water and Environment initiated procurement for construction of Kapchorwa water supply and sanitation system. The applicant submitted a bid of UGX 13,941,914,948. Six firms submitted bids. According to the evaluation report dated 9 March 2021, the applicant was eliminated at the technical evaluation stage for five stated reasons. However, the applicant's bid had reached the financial comparison stage and was issued a notice of correction of errors. Techno Three (U) Limited JV PS Construction, who submitted a bid of UGX 17,504,906,693, was recommended as best evaluated bidder at UGX 17,018,759,492 and awarded the contract on 15 March 2021. The applicant applied for administrative review to the Accounting Officer on 25 March 2021, which was rejected on 20 April 2021. The applicant then applied to PPDA on 27 April 2021, which rejected the application on 31 May 2021. The applicant then lodged this application before the Tribunal.

Issues

  1. Whether the delay or omission or refusal to provide documents requested for by the Applicant from the 1st Respondent was lawful.
  2. Whether the Applicant's bid was lawfully eliminated.

Orders

  • Application allowed in part.
  • Administrative review decisions of the 1st Respondent and the Accounting Officer of the 2nd Respondent set aside.
  • 2nd Respondent/Entity to conduct a re-evaluation in accordance with applicable legal provisions.
  • Entity to refund administrative review fees paid by the Applicant.
  • Tribunal's suspension order dated June 10, 2021 vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Public Procurement — Administrative Review — Right to Information
A procurement and disposal entity has a continuous statutory duty under section 89(2) of the PPDA Act 2003 to provide a bidder seeking administrative review with a summary of the evaluation process, a comparison of tenders including evaluation criteria used, and reasons for rejecting the concerned bids, at all three levels of administrative review (Accounting Officer, PPDA Authority, and Appeals Tribunal).
Public Procurement — Administrative Review — Fair Hearing
Failure to provide a bidder with information listed under section 89(2)(a-c) of the PPDA Act 2003 violates the bidder's right to a fair hearing by restraining or curtailing the bidder in making adequate preparations for its administrative review process, and offends the basic principles of public procurement namely transparency, accountability and fairness as stated in section 43 of the PPDA Act 2003.
Public Procurement — Confidentiality — Competing Bidders' Information
Section 47(2)(iv)(C) of the PPDA Act 2003, which prohibits disclosure of confidential information, only applies to information supplied in confidence by a bidder, and there must be sufficient evidence to show that disclosure would put the affected bidder at a disadvantage in commercial negotiations or prejudice the bidder in commercial competitions. A competing bidder's bid is not one of the documents a bidder is entitled to receive as of right under section 89(2) of the PPDA Act 2003.
Public Procurement — Evaluation — Post-Qualification Stage
Post-qualification under regulation 34 of the PPDA (Evaluation) Regulations 2014 presupposes that a bidder has passed the preliminary examination, detailed evaluation, and financial comparison stages, and involves only scrutiny of the bidder's forms to determine whether the best evaluated bidder has the capacity and resources to effectively execute the contract. It is contradictory for an entity to contend that a bidder reached post-qualification stage but then reject the bid for reasons belonging to the preliminary examination stage.
Public Procurement — Evaluation Criteria — Similarity of Previous Projects
Where evaluation criteria require similarity of previous projects based on physical size, complexity, methods/technology or other characteristics, a bidder may demonstrate similarity by showing that previous projects were similarly complex, used the same methods/technology, or had other similar characteristics. It is not mandatory to prove specific sizes of previous projects if a bidder chooses to rely on complexity, methods/technology or other characteristics. Physical size is just one element of similarity.
Public Procurement — Evaluation — Uniform Application of Criteria
Evaluation criteria must be properly and uniformly applied to all bidders. An evaluation committee shall not, during evaluation, make an amendment or addition to the evaluation criteria stated in the bidding document, and shall not use any other criteria other than the criteria stated in the bidding document. Applying different levels of scrutiny to different bidders is contrary to law.
Public Procurement — Donor-Funded Projects — Applicable Law
Where a party alleges that a condition imposed by a donor of funds or in a bilateral loan agreement conflicts with the PPDA Act 2003 and regulations, the party must cite to the satisfaction of the Tribunal the relevant sections of the financing agreement or condition that ousts the provisions of the Act. In the absence of such citation, the entity is bound to conduct evaluation in accordance with the PPDA Act 2003 and regulations, the bidding document, and any applicable donor guidelines.

Legislation cited (27)

Cases cited (11)

Full judgment

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Gat Consults Limited and Lee Construction Limited v Public Procurement and Disposal of Public Assets Authority and Another (Application No 6 of 2021) 2021 UGPPDPAAT 19 (30 June 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.