Wakilii

Impiger Technologies Private Limited v Higher Education Students Financing Board (Application No 25 of 2022)

Tribunal · [2022] UGPPDPAAT 24 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of a procuring entity's decision to cancel a procurement process following administrative review
Decision
Matter remitted to the Contracts Committee for determination of a course of action in accordance with section 33 of the Public Procurement and Disposal of Public Assets Act

Observed later treatment

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Holding

The Tribunal held that the application was not time barred as it was filed within the statutory period following the Accounting Officer's refusal to determine the complaint. The Tribunal has jurisdiction to inquire into whether a cancellation decision was made in compliance with section 75 of the Public Procurement and Disposal of Public Assets Act. The purported cancellation was invalid because the Contracts Committee did not formally decide to cancel the procurement; it merely rejected the evaluation report. The law requires the Contracts Committee to either return the submission to the Procurement and Disposal Unit for review or request independent advice from the Authority, not to refer the matter to the Accounting Officer for a final decision.

Outcome

Matter remitted to the Contracts Committee for determination of a course of action in accordance with section 33 of the Public Procurement and Disposal of Public Assets Act

Facts

The Respondent published a notice inviting expressions of interest for consultancy services to upgrade an integrated loan management information system. Three bidders submitted expressions of interest and were shortlisted. Following technical evaluation, the Applicant and another bidder were found non-responsive, scoring below the 70% minimum. The Applicant applied for administrative review. The Accounting Officer constituted a new evaluation committee which re-evaluated the bids and found the Applicant's proposal scored 76%. The Contracts Committee rejected the re-evaluation report on 30 June 2022. On 9 August 2022, the Accounting Officer informed the Applicant that the Contracts Committee had cancelled the procurement with a recommendation to re-tender due to significant changes in the terms of reference. The Applicant applied for administrative review of the cancellation decision, which the Accounting Officer refused to determine, stating he had no mandate to handle the complaint again. The Applicant then filed this application with the Tribunal.

Issues

  1. Whether the Application is time barred.
  2. Whether the Tribunal has jurisdiction to entertain the Application.
  3. Whether the cancellation of the procurement was lawful.
  4. What reliefs are available to the parties.

Orders

  • Application allowed.
  • The Respondent's Contracts Committee is directed to determine a course of action subsequent to rejection of the technical re-evaluation report, within the confines of section 33 of the Public Procurement and Disposal of Public Assets Act, and in a manner consistent with the law and this decision.
  • The determination must be made within ten days from the date hereof.
  • The suspension order dated 26 August 2022 is vacated.
  • Each party shall bear its own costs.

Rules and key headnotes

Public Procurement — Time Limits for Administrative Review — Computation of Time
Under section 89(3)(b) of the Public Procurement and Disposal of Public Assets Act, a complaint to the Accounting Officer must be made within ten working days after the date the bidder first becomes aware or ought to have become aware of the circumstances giving rise to the complaint. In computing time, the day on which the event happens is excluded, and if the last day falls on a Sunday or public holiday, the period includes the next following day that is not an excluded day.
Public Procurement — Administrative Review — Time Limits for Accounting Officer's Decision
Under section 89(7) of the Public Procurement and Disposal of Public Assets Act, the Accounting Officer must make and communicate a decision within ten days of receipt of a complaint. A decision made and communicated after the statutory deadline is a nullity and no decision at all.
Public Procurement — Administrative Review — Function of Evaluation Committee
The function of an evaluation committee is to evaluate bids, not to conduct administrative review. The Accounting Officer is responsible for conducting administrative review under sections 89(3)(a), 89(7) and 26(1)(h) of the Public Procurement and Disposal of Public Assets Act. An evaluation committee does not conduct administrative review.
Public Procurement — New Grievance — Right to Fresh Administrative Review
The cancellation of a procurement founds a new grievance or complaint. A bidder has a statutory right under sections 89(1), (2) and (3)(b) of the Public Procurement and Disposal of Public Assets Act to make a new complaint to the Accounting Officer, provided it is made within ten days of becoming aware of the cancellation.
Public Procurement — Tribunal Jurisdiction — Review of Cancellation Decisions
The Tribunal has no jurisdiction to review a decision by a procuring and disposing entity to cancel a procurement in accordance with section 75 of the Public Procurement and Disposal of Public Assets Act. However, the Tribunal has jurisdiction to inquire into the decision-making process leading to the cancellation, in order to determine whether there is a valid cancellation within the meaning of section 75. If the Tribunal finds that there is no cancellation or that the cancellation was not effected in accordance with section 75, the Tribunal's jurisdiction is not ousted by section 911(3) of the Act.
Public Procurement — Contracts Committee — Procedure on Disagreement with Procurement Unit
Under section 33 of the Public Procurement and Disposal of Public Assets Act, where a Contracts Committee disagrees with the recommendations of a Procurement and Disposal Unit, it may either return the submission to the Procurement and Disposal Unit for review giving written reasons for its disagreement, or request independent advice from the Authority. The law does not permit the Contracts Committee to return the submission to the Accounting Officer for a final decision.
Public Procurement — Independence of Procurement Organs
Section 38 of the Public Procurement and Disposal of Public Assets Act requires the Accounting Officer, the Contracts Committee, the Procurement and Disposal Unit, the User Department and the Evaluation Committee to act independently in relation to their respective functions and powers.

Legislation cited (25)

Cases cited (9)

  • Super Taste Ltd v Bank of Uganda (Application No. 33 of 2021)
  • MBJ Technologies Limited v Mbarara City & 2 Others (Application No. 17 of 2022)
  • Meera Investments Limited v Uganda Revenue Authority & Numani Mubiakulamusa (Application No. 18 of 2022)
  • Samanga Elcomplus JV v Uganda Electricity Distribution Company Limited (Application No. 17 of 2021)
  • Kasokoso Services Limited v Jinja School of Nursing and Midwifery (Application No. 13 of 2021)
  • VCON Construction (U) Ltd v Uganda Development Bank (Application No. 22 of 2021)
  • Mulago Hill Diagnostics Ltd v National Water and Sewerage Corporation (Application No. 13 of 2022)
  • Preg Tech Communications v Uganda Police (Application No. 32 of 2021)
  • Mugerwa Fred v Sembabule District Local Government (Application No. 23 of 2022)

Full judgment

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

Impiger Technologies Private Limited v Higher Education Students Financing Board (Application No 25 of 2022) 2022 UGPPDPAAT 24 (16 September 2022)
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.