Wakilii

Kasokoso Services Limited v Jinja School of Nursing Midwifery [2021] UGPPDPAAT 22

Tribunal · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of procurement decision before the Public Procurement and Disposal of Public Assets Appeals Tribunal
Decision
Contract cancelled and procurement remitted to Entity for re-evaluation

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that the Applicant had locus standi despite expired bid security where the Respondent failed to specify bid security expiry in the bidding document. The Respondent breached procurement regulations by failing to properly notify the Applicant of the best evaluated bidder notice via the correct email address. The contract awarded to Bulmak Associates Limited was cancelled because the company did not meet the five-year general experience requirement, having been incorporated only in 2016. The Tribunal rejected the argument that Bulmak Associates Limited could rely on the experience of a separate company with the same directors. The procurement was remitted for re-evaluation.

Outcome

Contract cancelled and procurement remitted to Entity for re-evaluation

Facts

Jinja School of Nursing and Midwifery advertised a procurement for construction of a three-storied classroom block in April 2021. Nine bidders submitted bids with validity until 26 September 2021. The evaluation concluded on 11 June 2021 and the Contracts Committee awarded the contract to Bulmak Associates Limited on 16 June 2021 at UGX 1,048,989,993. A best evaluated bidder notice was issued on 16 June 2021 with removal date of 30 June 2021. A construction agreement was executed on 23 July 2021 and ground breaking held on 3 August 2021. The Applicant learned of the award through a radio bulletin on 3 August 2021 and lodged a complaint on 9 August 2021, alleging it was never notified of the best evaluated bidder and that Bulmak Associates Limited lacked the required five years' general experience in construction. The Accounting Officer did not respond. The Applicant filed this application on 30 August 2021.

Issues

  1. Whether there was a valid application for administrative review upon which the Accounting Officer was mandated to act?
  2. Whether the Respondent erred in law and fact by not responding to the Applicant's complaint within the stipulated timeframe?
  3. Whether the Respondent erred in law and fact by not displaying the Best Evaluated Bidder Notice as guided by the PPDA Regulations?
  4. Whether the Best Evaluated Bidder, Bulmak Associates Ltd, met the eligibility requirements stipulated in the bidding document?
  5. What remedies are available to the Parties?

Orders

  • Application allowed.
  • Contract dated 23 July 2021 between the Entity and Bulmak Associates Limited cancelled and set aside.
  • Respondent's Accounting Officer directed to assess and communicate administrative review fees payable by Applicant within two working days.
  • Applicant ordered to pay assessed administrative review fees within two working days of communication.
  • Procurement process returned to Entity for re-evaluation of bids in manner consistent with Tribunal decision, PPDA Act as amended, and Regulations.
  • Tribunal's suspension order dated 30 August 2021 vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Public Procurement — Locus Standi — Bid Validity versus Bid Security
A bidder whose bid validity period has not expired but whose bid security has expired due to the procuring entity's failure to specify the bid security expiry date in the bidding document retains locus standi to apply for administrative review. Bid validity and bid security serve different purposes: bid validity ensures the bid remains legally binding for a specified period, while bid security protects against withdrawal or refusal to sign. Expiry of bid validity renders a bid non-existent and the bidder loses locus; expiry of bid security renders a bid non-responsive but does not extinguish the bidder's standing to seek review.
Public Procurement — Administrative Review — Validity of Complaint
A complaint for administrative review need not conform to a particular form or title. Where a letter sets out grounds of complaint, identifies the remedies sought, is addressed to the Accounting Officer, and is made within the statutory time limit, it constitutes a valid complaint under section 89 of the PPDA Act notwithstanding that it is titled 'Demand Notice cum Notice of Intention to Sue'. Non-conformity with a particular form does not render a document void where it does not affect the substance or mislead.
Public Procurement — Notice of Best Evaluated Bidder — Email Communication
Under Regulation 4(1) of the PPDA (Contracts) Regulations 2014, a procuring entity must deliver a copy of the notice of best evaluated bidder to all bidders and obtain proof of delivery. Where an entity sends an email to an incorrect email address that differs from the address consistently provided by the bidder in its bid documents, there is no valid delivery. An email must be dispatched to the actual email address of the intended recipient; dispatch to a wrong address means no email was sent to the intended recipient and none could be received.
Company Law — Separate Legal Personality — Experience Requirements in Procurement
A company becomes legally existent from its date of incorporation and can only legally commence business in its own name after that date. Separate legal personality is the basic tenet of company law. A bidding company cannot rely on the experience of another company with the same directors and shareholders in the absence of either a certificate of change of name issued by the Registrar of Companies or a formal joint venture, consortium, or association agreement. A statutory declaration by shareholders that two separately incorporated companies refer to the same entity is alien to law and does not suffice.
Public Procurement — Evaluation — Post-Qualification
Omission to conduct a post-qualification exercise as required by the bidding document and Regulation 34(1) of the PPDA (Evaluation) Regulations 2014 renders the award of contract irregular. Procurement processes are sequential; one cannot move to another stage without fulfilling the first. Non-compliance with mandatory provisions makes the proceedings fatal.
Public Procurement — Illegality — Contract Awarded to Non-Responsive Bidder
A contract awarded to a bidder whose bid was not substantially responsive to the minimum requirements of the detailed evaluation is a nullity. A court or tribunal cannot sanction what is illegal. An illegality once brought to the attention of the tribunal overrides all questions of pleading. Where a bidder fails to meet eligibility requirements such as minimum years of experience, the contract must be cancelled and the procurement remitted for re-evaluation.

Legislation cited (18)

Cases cited (20)

  • Sheema United Drivers Cooperative Society Ltd v PPDA (Application No. 1 of 2017)
  • Yaya v Obur & Ors (Civil Appeal No. 2018/81)
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Njau & Others v City Council of Nairobi [1976-1985] 1 EA 397
  • Acacia Place Ltd v PPDA & Electoral Commission (Application No. 10 of 2021)
  • Kazini Fredric v PPDA (Application No. 16 of 2015)
  • Twed Property Development Limited v PPDA (Application No. 9 of 2015)
  • Samanga Elcomplus JV v PPDA & Uganda Electricity Distribution Company Limited (Application No. 4 of 2021)
  • Obon Infrastructure Development JV v PPDA & Mbarara City (Application No. 5 of 2021)
  • Abasamia Hwolerane Association Ltd v Jinja City Council (Application No. 12 of 2021)
  • Globe World Engineering (U) Limited v Jinja City Council (Application No. 11 of 2021)
  • Entores Ltd v Miles Far East Corporation [1955] 2 ALL ER 493
  • Brinkibon Ltd v Stahag Stahl G.M.B.H. [1983] 2 AC 34
  • Bernuth Lines Limited v High Seas Shipping Ltd [2006] 1 Lloyds Rep 537
  • My Maka Group Limited v UNBS (Application No. 9 of 2021)
  • Old Kampala Students Association v Old Kampala Senior Secondary School & PPDA (Application No. 7 of 2017)
  • Galleria In Africa Ltd v Uganda Electricity Distribution Company Ltd (Civil Appeal No. 2017)
  • Roko Construction Limited v Public Procurement and Disposal of Public Assets Authority & Others [2018] UGHCCD 137
  • Makula International Ltd v His Eminence Emmanuel Cardinal Nsubuga & Rev. Fr. Dr. Kyeyune (CACA No. 4 of 1981)
  • Salomon v A Salomon and Co Ltd [1897] AC 22

Full judgment

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Kasokoso Services Limited v Jinja School of Nursing Midwifery 2021 UGPPDPAAT 22 (16 September 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.