Wakilii

Gat Consults Limited v National Water and Sewerage Cooperation (Application No 30 of 2021)

Tribunal · [2021] UGPPDPAAT 10 · 2021 Application Partly Allowed — Procurement Cancelled AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of procurement decision following administrative review rejection
Decision
Procurement cancelled and entity advised to re-tender

Observed later treatment

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Holding

Held that the application for administrative review was filed within time and late payment of fees was not fatal. The Respondent violated the Applicant's right to a fair hearing by refusing to provide information required under Section 89(4) of the PPDA Act. The Applicant's bid was properly disqualified at technical evaluation for failing to demonstrate required experience. However, the best-evaluated bidder (Zhonghao Overseas Construction Engineering Co. Ltd and Plumb Base Uganda Ltd JV) was ineligible to participate under the reservation scheme as it did not qualify as a national or resident provider. Procurement cancelled and entity advised to re-tender.

Outcome

Procurement cancelled and entity advised to re-tender

Facts

National Water & Sewerage Corporation advertised a tender for construction works for the Bushenyi Water Supply augmentation project under a reservation scheme. Five bidders submitted bids by the deadline. GAT Consults Ltd's bid price after correction of errors was UGX 9,357,389,651. The evaluation committee recommended Zhonghao Overseas Construction Engineering Co. Ltd and Plumb Base Uganda Ltd JV as best-evaluated bidder at UGX 9,751,633,133. GAT Consults was declared non-responsive at technical evaluation for failing to present two required water supply projects and failing to demonstrate minimum experience in five key activities. GAT Consults applied for administrative review on November 4, 2021, attaching a cheque for fees. The Respondent rejected the cheque and the Applicant paid electronically on November 9, 2021. The Accounting Officer rejected the application on November 12, 2021. GAT Consults then applied to the Tribunal on November 22, 2021.

Issues

  1. Whether the application for administrative review to the Accounting Officer was made within time?
  2. Whether the Applicant is entitled to the evaluation report requested in accordance with Section 89(4) of the Public Procurement and Disposal of Public Assets Act?
  3. Whether the Applicant's bid which had reached the financial comparison stage could be rejected for reasons that should have been advanced at the technical evaluation stage?
  4. Whether the projects submitted by the Applicant were of similar nature in terms of either physical size, complexity, methods or technology?
  5. Whether the information provided by the Applicant in the documents submitted in support of its bid was sufficient in respect to Management Strategies and Implementation Plans (MSIP) and Environmental Social and Management Plans (ESMP)?
  6. Whether the decision of the Evaluation Committee to declare M/s Zhonghao Overseas Construction Engineering Co. Ltd and Plumb Base Uganda Ltd JV as the best-evaluated bidder was against the principles of procurement and specifically promotion of value for money?
  7. Whether M/s Zhonghao Overseas Construction Engineering Co. Ltd and Plumb Base Uganda Ltd JV qualifies to participate under a reservation scheme?
  8. Whether the Applicant presented the best bid in comparison with the best-evaluated bidder and should be declared so?

Orders

  • Application partially succeeds.
  • Decision of the Accounting Officer set aside.
  • Procurement process cancelled.
  • Entity advised to re-tender if it so wishes.
  • Tribunal's suspension order dated November 23, 2021 vacated.
  • Entity must refund the administrative review fees paid by the Applicant.
  • Each party to bear its own costs.

Rules and key headnotes

Administrative Review — Payment of Fees — Late Payment Not Fatal
Late payment of administrative review fees under Section 89(3)(a) of the Public Procurement and Disposal of Public Assets Act is not fatal to the competence of the application, provided the proper fees can be assessed and paid.
Fair Hearing — Right to Information — Section 89(4) PPDA Act
A procuring and disposing entity against which a complaint is made is duty bound under Section 89(4) of the PPDA Act to provide the bidder with a report indicating the reasons for rejection and the stage at which the bidder was rejected. Refusal to provide such information violates the principles of natural justice and the bidder's constitutional right to a fair hearing under Articles 28, 41 and 42 of the Constitution.
Procurement — Evaluation Criteria — Restriction of Competition
Evaluation criteria relating to experience as stipulated in bidding documents should not be interpreted or applied in a manner which restricts competition. However, allegedly restrictive evaluation criteria should ordinarily be challenged prior to bidding, not during the evaluation stage.
Procurement — Evaluation — No Amendment of Criteria During Evaluation
An evaluation committee shall not, during an 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. All bids should be considered on the basis of their compliance with the terms of the solicitation documents, and a bid should not be rejected for reasons other than those specifically stipulated in the solicitation document.
Procurement — Reservation Schemes — Eligibility of Joint Ventures
Under a reservation scheme to promote local content, where a bidder is a Joint Venture, the individual parties of the bidder must both be composed of either national providers (registered in Uganda and wholly owned and controlled by Ugandans) or resident providers (incorporated in Uganda for at least two years). A Joint Venture between a foreign company and a local company does not qualify for reservation schemes unless both parties meet the eligibility criteria.
Procurement — Value for Money — Lowest Price Not Sole Criterion
The tendered price alone is not an accurate indicator for comparison of either the potential contractor's ability to perform the required task or the total cost of performing the task over time. Value for money requires a comparison of costs, benefits and alternative outcomes, along with qualitative factors such as financial strength, past performance and capacity for customer service.
Procurement — Tribunal Powers — Cancellation of Procurement
A merits review tribunal has power to set aside the original decision and substitute a new decision of its own. Where both the applicant and the best-evaluated bidder are found not qualified for an award, the Tribunal may cancel the procurement and advise the entity to re-tender.

Legislation cited (19)

Cases cited (12)

  • De Souza v Tanga Town Council (Civil Appeal No. 89 of 1960)
  • Lawrence Muwanga v Stephen Kyeyune (Supreme Court Civil Appeal No. 12 of 2001)
  • Apvcon Construction Ltd v Uganda Development Bank (Application No. 22 of 2021)
  • Samanga Elcomplus JV v Uganda Electricity Distribution Company Limited (Application No. 17 of 2021)
  • Kasokoso Services Limited v Nojinja School of Nursing and Midwifery (Application No. 13 of 2021)
  • Vcon Construction (U) Ltd v Uganda Development Bank (Application No. 22 of 2021)
  • Arua Municipal Council v Arua United Transporters' SACCO (Civil Appeal No. 25 of 2017)
  • Samanga Elcomplus JV v PPDA & UEDCL (Application No. 4 of 2021)
  • GAT Consults and Lee Construction Ltd JV v PPDA and Ministry of Water and Environment (Application No. 6 of 2021)
  • Myaka Group Ltd v UNBS (Application No. 9 of 2021)
  • Smileplast Ltd v PPDA & NAADS (Application No. 13 of 2020)
  • Dott Services Limited & HES Infra Private Limited JV v Ministry of Water and Environment (Application No. 25 of 2021)

Full judgment

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Gat Consults Limited v National Water and Sewerage Cooperation (Application No 30 of 2021) 2021 UGPPDPAAT 10 (13 December 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.