Wakilii

Globe World Engineering Uganda Limited v Mbale City Council (Application No 21 of 2021)

Tribunal · [2021] UGPPDPAAT 12 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of procurement decision following unsuccessful bid for street parking revenue collection tender
Decision
Application dismissed; procurement process may continue

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal dismissed the application. The best evaluated bidder (Nalu Tour and Travel Ltd) had properly submitted a specific power of attorney and demonstrated sufficient experience in revenue collection. The applicant's bid was correctly disqualified at the detailed technical evaluation stage for failure to submit the manager's CV as required by the bidding document, not at post-qualification as erroneously stated in the notice. The omission of the CV was a material deviation that could not be cured through clarification. The Tribunal held that the accounting officer's failure to decide within 10 days did not deprive it of jurisdiction under section 89(8) of the PPDA Act.

Outcome

Application dismissed; procurement process may continue

Facts

Mbale City Council invited bids for management of street parking revenue collection. Six bidders submitted bids. During evaluation, two bidders were disqualified at preliminary examination. At detailed technical evaluation, Globe World Engineering (U) Ltd and Central Investment Agencies Ltd were eliminated for failure to submit managers' resumes and academic certificates. Nalu Tour and Travel Ltd was ranked first with a bid price of UGX 17,700,000 per month and recommended for award. The best evaluated bidder notice displayed on October 4, 2021 erroneously stated that Globe World Engineering was disqualified at post-qualification for being hostile and uncooperative in previous projects. Globe World Engineering applied for administrative review on October 7, 2021. The accounting officer did not respond within the statutory 10-day period. Globe World Engineering then filed this application with the Tribunal on October 19, 2021, challenging the disqualification and the award to Nalu Tour and Travel Ltd.

Issues

  1. Whether the procuring and disposing entity erred in law and fact not to reject the bid submitted by Nalu Tour and Travel Ltd at the preliminary and technical stages respectively, since it did not have a specific power of attorney specific to this procurement and experience in street parking tender.
  2. Whether the procedure for alleged post qualification carried out on the applicant was lawfully conducted by the procuring and disposing entity.
  3. Whether the procuring and disposing entity acted unlawfully not to display the Applicant when he passed all stages of evaluation.
  4. Whether the applicant is entitled to award of tender by the entity since it quoted 22,050,000/= VAT inclusive and its bid fulfilled all requirements of the bid document dated 02/08/2021.
  5. Whether the applicant is entitled to general damages and costs in the tribunal.

Orders

  • Application dismissed.
  • Respondent may continue with the procurement to its logical conclusion.
  • Tribunal's suspension order dated October 19, 2021 is vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Public Procurement — Statutory Timelines — Accounting Officer's Duty to Decide Administrative Review
Under section 89(7) of the Public Procurement and Disposal of Public Assets Act 2003 as amended by Act 15 of 2021, an accounting officer must mandatorily make a decision or communicate a decision within 10 days of receipt of an applicant's complaint. Where Regulation 139(5) of the Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006 provides for 15 working days, it is void to the extent of inconsistency with the Act pursuant to section 18(4) of the Interpretation Act.
Public Procurement — Tribunal Jurisdiction — Failure to Decide
Where an accounting officer fails to make a decision within ten days of receipt of a complaint, the Tribunal has jurisdiction under section 89(8) of the Public Procurement and Disposal of Public Assets Act 2003 as amended by Act 15 of 2021 to entertain an application by an aggrieved bidder as if filed against the indecision or failure to decide.
Public Procurement — Bid Evaluation — Substantial Compliance and Material Deviation
A substantially compliant and responsive bid is one that conforms to all the instructions, requirements, terms and conditions of the bid documents without material deviation or omission. Where a bid is not substantially compliant and responsive, it shall be rejected and may not subsequently be made compliant or responsive by the bidder by correction of the material deviation or omission.
Public Procurement — Evaluation Criteria — Similar Experience
In determining whether a bidder has experience of a similar nature, similarity means evidence which is similar but not necessarily identical or the same. Care should be taken not to interpret or apply evaluation criteria in a manner which restricts competition. The evaluation committee must make an objective assessment to determine similarity.
Public Procurement — Clarification — Limits on Requesting Additional Information
An entity may not seek clarification to request further information from a bidder whose bid has a material deviation, as doing so would substantially alter anything which forms a crucial or deciding factor in the evaluation of the bid. Clarification is not meant to introduce new information or documents in order to cure a material deviation in the bid.
Public Procurement — Due Diligence — Timing and Scope
Regulation 59 of the Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006 gives the procuring and disposing entity discretion to carry out due diligence on a bidder or bid in any operations that a contracts committee determines as requiring verification or checking in exercising an obligation of due care. Such an exercise is not confined to the pre or post-qualification stage or the procedure or content relating to those stages.
Public Procurement — Right to Be Heard — Timing
A bidder who is not yet a best evaluated bidder and has not yet acquired that legal status is not entitled to be granted a right to be heard before its bid fails at an earlier evaluation stage.

Legislation cited (12)

  • Public Procurement and Disposal of Public Assets Act 2003 s.89(7)
  • Public Procurement and Disposal of Public Assets Act 2003 s.89(8)
  • Public Procurement and Disposal of Public Assets Act 2003 as amended by Act 15 of 2021
  • Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.73(1)
  • Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.73(2)
  • Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.73(3)
  • Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.74(1)(a)
  • Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.74(2)(c)
  • Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.82
  • Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.59
  • Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.139(5)
  • Interpretation Act Cap 3 s.18(4)

Cases cited (10)

  • Abasamia Hwolerane Association Ltd v Jinja City Council (Application No. 12 of 2021)
  • Globe World Engineering (U) Ltd v Jinja City Council (Application No. 11 of 2021)
  • Trust Ventures Ltd v Powerfoam (U) Ltd [2019] UGCommC 25
  • Kyaninga Royal Cottages Ltd v Kyaninga Lodge Ltd [2018] UGCommC 34
  • Attorney General v Sanyu Television (Civil Suit No. 614 of 1998)
  • Samanga Elcomplus UV v PPDA & UEDCL (Application No. 4 of 2021)
  • GAT Consults Ltd and Lee Construction Ltd JV v Ministry of Water and Environment & PPDA (Application No. 6 of 2021)
  • China Aero-Tech International Engineering Corporation (CATIC) v PPDA (Application No. 1 of 2016)
  • Roko Construction Ltd & Roko Construction (Rwanda) Ltd JV v PPDA (Application No. 6 of 2019)
  • Smileplast Ltd v Public Procurement and Disposal of Public Assets Authority & National Agricultural Advisory Services (Application No. 13 of 2020)

Full judgment

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

Globe World Engineering Uganda Limited v Mbale City Council (Application No 21 of 2021) 2021 UGPPDPAAT 12 (3 November 2021)
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