Wakilii

KSolutions Limited v Ministry of Water and Enviroment (Application 30 of 2023)

Tribunal · [2023] UGPPDPAAT 31 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of procurement decision following unsuccessful bid and dismissal of administrative review
Decision
Contract award set aside and matter remitted to entity for re-evaluation of bids within ten working days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that the Ministry of Water and Environment erred in disqualifying K-Solutions Limited's bid without conducting a proper evaluation. The evaluation committee applied technical specifications mechanically without regard to the allowance for equivalent alternatives, contrary to procurement regulations requiring maximization of competition and value for money. The contract award to Wagtech Projects Ltd was set aside and the matter remitted for re-evaluation within ten working days.

Outcome

Contract award set aside and matter remitted to entity for re-evaluation of bids within ten working days

Facts

The Ministry of Water and Environment published a bid notice on 27 July 2023 for supply and installation of hydrological and meteorological weather stations under the SACRiAC Project using open international bidding. Four bidders submitted bids on 13 September 2023. Following evaluation, the contract was awarded to Wagtech Projects Ltd on 27 October 2023. K-Solutions Limited's bid was disqualified for alleged non-compliance with technical specifications. The applicant sought administrative review on 6 November 2023, which was dismissed on 16 November 2023. The applicant then filed this application with the Tribunal on 23 November 2023. The Tribunal found inconsistencies between the evaluation report, the notice of best evaluated bidder, and the administrative review decision regarding grounds for disqualification. The statement of requirements adopted ADCON/OTT brand specifications with allowance for equivalents, but the evaluation committee applied specifications mechanically without properly assessing equivalent alternatives.

Issues

  1. Whether the Respondent erred in law when it disqualified the Applicant's bid.
  2. What remedies are available to the parties.

Orders

  • Application allowed.
  • Award of contract to Wagtech Projects Ltd for Lot 1 and Lot 2 set aside.
  • Respondent directed to re-evaluate bids for both lots in manner consistent with this decision, bidding document, and law.
  • Re-evaluation to be completed within ten (10) working days from date of decision.
  • Tribunal's suspension order dated 24th November 2023 vacated.
  • Respondent to refund Applicant's administrative review fees.
  • Each party to bear its own costs of application.

Rules and key headnotes

Public Procurement — Technical Specifications — Use of Brand Names
Where a statement of requirements specifies a particular brand followed by the words 'or equivalent', a procuring entity errs in law if it uses that brand name without evidence that there is no other sufficiently precise or intelligible way of characterising the requirement.
Public Procurement — Evaluation of Bids — Duty to Consider Equivalents
An evaluation committee has a duty to evaluate documentation submitted by bidders to determine whether substitutions ensure substantial equivalence or are superior to specifications in the statement of requirements, and may only reject a submission if it amounts to a material deviation or non-material omission that is not rectifiable or waivable.
Public Procurement — Evaluation — Mechanical Application of Specifications
An evaluation committee errs when it applies technical specifications in a mechanical manner without regard to allowances for alternatives or equivalents, as such restrictive evaluation is contrary to the cardinal principle that all procurement shall be conducted to maximize competition and achieve value for money.
Public Procurement — Post-Qualification — Timing and Applicability
Post-qualification evaluation is applicable only to a best evaluated bidder under regulation 34 of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014, and cannot be undertaken at the administrative review stage.
Public Procurement — Administrative Review — Invention of New Grounds
A procuring entity commits a gross misdirection when it invents a new reason for disqualification of a bid during administrative review that was not part of the original evaluation, particularly where the bid was evaluated as compliant on that criterion.
Public Procurement — Evaluation — Completeness of Assessment
An evaluation committee fails to comply with evaluation requirements when it does not assess compliance with all stated detailed evaluation criteria, including requirements to submit recommendation letters or letters of satisfactory performance.
Public Procurement — Tribunal Review — Scope of Jurisdiction
It is the duty of an evaluation committee to properly evaluate bids, not the duty of the Tribunal to undertake an evaluation; the Tribunal may only review the conduct of an evaluation after it has been duly conducted, and where evaluation was not properly conducted, the matter must be remitted for proper evaluation.

Legislation cited (5)

  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 reg.19
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 reg.34
  • Public Procurement and Disposal of Public Assets (Rules and Methods for Procurement of Supplies, Works and Non-Consultancy Services) Regulations 2014 reg.24
  • Public Procurement and Disposal of Public Assets (Rules and Methods for Procurement of Supplies, Works and Non-Consultancy Services) Regulations 2014 reg.25
  • Public Procurement and Disposal of Public Assets (Rules and Methods for Procurement of Supplies, Works and Non-Consultancy Services) Regulations 2014 reg.28

Full judgment

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

KSolutions Limited v Ministry of Water and Enviroment (Application 30 of 2023) 2023 UGPPDPAAT 31 (14 December 2023)
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