Juan Carlos Surace Limited v Masindi District Local Government (Application 12 of 2024)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Tribunal held that electronic submission of a valid Tax Clearance Certificate to the procuring entity's email address before the bid deadline satisfies the requirement to submit the certificate, even if not physically included in the bid or specifically addressed to the entity. A Tax Clearance Certificate is an eligibility document which the procuring entity is obligated to request if omitted, provided it was valid at the bid submission deadline. The Respondent erred in disqualifying the Applicant's bid and in introducing novel evaluation grounds not specified in the bidding document.

Outcome

Contract award set aside and matter remitted to Respondent for re-evaluation within 10 working days

Facts

The Government of Uganda received a World Bank loan for the UGIFT program to construct seed secondary schools. Masindi District Local Government tendered for construction of facilities at Kinumi community seed secondary school. Two bids were received on December 22, 2023. The evaluation committee recommended Semwo Construction Company Ltd as the best evaluated bidder. The Applicant's bid was disqualified for failing to submit a Current Income Tax Clearance Certificate addressed to Masindi District Local Government. The Applicant contended it had submitted the Tax Clearance Certificate electronically to the Respondent's email address ([email protected]) on December 19, 2023, before the bid deadline. The Respondent acknowledged receiving the email but argued the email address was for general purposes, not procurement, and that the certificate was not specifically addressed to Masindi District Local Government as required. The Applicant filed an administrative review which was dismissed, then appealed to the Tribunal.

Issues

1. Whether the Respondent erred in law and fact when it disqualified the Applicant's bid for omitting to submit a Tax Clearance Certificate as an eligibility document?
2. What remedies are available to the parties?

Orders

• Application allowed.
• Decision of the Accounting Officer dated February 22, 2024 set aside.
• Award of contract to Semwo Construction Company Ltd set aside.
• Respondent directed to re-evaluate the bids in a manner consistent with the Tribunal's decision, the bidding document and the law.
• Re-evaluation to be completed within 10 working days from the date of the Tribunal's decision.
• Tribunal's suspension order dated February 23, 2024 vacated.
• Respondent to refund the administrative review fees paid by the Applicant.
• Each party to bear its own costs.

Rules and key headnotes

Legislation cited (13)

• Public Procurement and Disposal of Public Assets Act 2003 s.31(a)
• Public Procurement and Disposal of Public Assets Act 2003 s.71(3)
• Public Procurement and Disposal of Public Assets Act 2003 s.95B
• Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2023 Reg.5(2)
• Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2023 Reg.6(1)
• Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2023 Reg.17(2)(d)
• Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2023 Reg.17(3)(d)
• Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2023 Reg.17(6)
• Electronic Transactions Act 2011 s.2(1)
• Electronic Transactions Act 2011 s.5(4)(a)
• Electronic Transactions Act 2011 s.5(4)(b)
• Tax Procedures Code Act 2014 s.43(3)
• Tax Procedures Code Act 2014 s.43(4)

Cases cited (1)

• Iron Investment and Construction Limited & 2 Others v Ministry of Water and Environment (Application No. 22 of 2023)

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