Wakilii

Ksolutions Limited v Ministry of Water and Environment (Application 8 of 2024)

Tribunal · [2024] UGPPDPAAT 9 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of procurement decision following Tribunal-ordered re-evaluation
Decision
Application dismissed; procurement decision upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that it had jurisdiction to entertain a direct application where the Accounting Officer had already decided the same complaint, establishing a basis for belief of partiality. On the merits, the Tribunal found that the Applicant failed to demonstrate at least three similar contracts of similar nature and value as required by the bidding document. Only one of the Applicant's cited contracts met both the nature and value criteria. The Tribunal dismissed the application, finding no error in the Respondent's disqualification of the Applicant's bid.

Outcome

Application dismissed; procurement decision upheld

Facts

The Ministry of Water and Environment initiated a procurement for the supply and installation of hydrological and meteorological weather stations. Following an initial Tribunal decision in December 2023 that set aside the contract award and directed re-evaluation, the Respondent conducted a re-evaluation and again awarded the contract to Wagtech Projects Ltd. The Applicant's bid was eliminated for failing to submit evidence of at least three previous contracts of similar nature and value as required by the commercial criteria. The Applicant filed a direct application to the Tribunal on January 19, 2024, contending it had submitted three assignments of the same nature. The Respondent opposed, arguing the contracts were not similar in nature or value and that the Tribunal lacked jurisdiction because the Applicant had not first sought administrative review from the Accounting Officer.

Issues

  1. Whether the Tribunal has jurisdiction to entertain the Application?
  2. Whether the Respondent erred when it disqualified the Applicant's bid?
  3. What remedies are available to the parties?

Orders

  • The Application is dismissed.
  • The Tribunal's suspension order dated January 29, 2024, is vacated.
  • Each party shall bear its own costs.

Rules and key headnotes

Public Procurement — Locus Standi — Direct Application to Tribunal
A bidder may file a direct application to the Tribunal without first applying for administrative review to the Accounting Officer where the Accounting Officer has already made a decision on the same complaint, establishing a basis for belief that the Accounting Officer cannot impartially handle the complaint.
Public Procurement — Amendment of Pleadings — Discretion of Tribunal
The Tribunal may exercise discretion to allow an amendment to an application where the amendment does not work injustice to the other side, is intended to avoid multiplicity of suits, is not made in bad faith, and is not prohibited by law, even where the amendment is filed after the respondent has filed its response.
Public Procurement — Evaluation Criteria — Similarity of Contracts
The interpretation of evaluation criteria relating to experience should not be applied in a manner which restricts competition. It is not a requirement that previous projects must be identical to the procurement in issue; it is sufficient that the bidder has experience in projects with some aspects which are similar but not necessarily identical.
Public Procurement — Evaluation Criteria — Similarity of Value
Where a bidding document requires evidence of contracts of similar value but does not specify a benchmark for similarity, a bidder's own bid price is a fair yardstick of what that bidder considers to be the value of the procurement. A bidder would reasonably be expected to show experience in performing similar contracts whose value is in the range of its bid price.
Public Procurement — Clarification of Bidding Documents — Estoppel
It is disingenuous for a bidder who had an option to seek clarification or challenge the bidding document to fail to do so, proceed to submit a bid, and then complain after the outcome of the procurement is not in its favour based on a matter not clarified or complained about before the deadline for submission of bids.
Public Procurement — Merits Review — Tribunal's Role
The Tribunal is a merits review body whose decision involves consideration of whether, on the available facts, the decision made was correct, includes reconsideration of the facts, law and policy aspects of the original decision, and is directed to ensuring fair treatment of all persons affected by a decision and improving the quality and consistency of primary decision making.
Public Procurement — Evidence of Contracts — Documentary Proof
Where a bidder lists contracts as specific experience but does not submit documentary evidence of those contracts in its bid, those contracts cannot be considered in evaluating whether the bidder meets the requirement for evidence of similar contracts.

Legislation cited (15)

Cases cited (14)

  • Tijos Investment Ltd v Lira City Council (Application No. 5 of 2024)
  • Pynet Technologies SMC Ltd v Ministry of Lands, Housing and Urban Development (Applications 1 & 2 of 2024)
  • Njau & Others v City Council of Nairobi [1976-1985] 1 EA 397
  • Abasamia Hwolerane Association Ltd v Jinja City Council (Application No. 18 of 2021)
  • Gaso Transport Services Ltd v Martin Adala Obene (SCCA No. 4 of 1994)
  • Samanga Elcomplus J v PPDA & UEDCL (Application No. 4 of 2021)
  • GAT Consults Limited v National Water and Sewerage Corporation (Application No. 30 of 2021)
  • GAT Consults Limited v PPDA and Ministry of Water and Environment (Application No. 6 of 2021)
  • Engineering Solutions (U) Ltd v Ministry of Water and Environment (Application No. 24 of 2021)
  • Technology Associates Limited in Consortium with Comviva Technology Limited v Post Bank Uganda Limited (Application No. 6 of 2022)
  • EAA Company Ltd & Others v Uganda National Bureau of Standards (Consolidated Applications No. 31 and 32 of 2023)
  • Public Procurement and Disposal of Public Assets Authority v Basaar Arua Bus Operators Cooperative Society Ltd (Civil Appeal No. 4 of 2016)
  • Gold Star Insurance Company Ltd v Uganda National Roads Authority (Application No. 4 of 2024)
  • Registry Application No. 30 of 2023

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 Environment (Application 8 of 2024) 2024 UGPPDPAAT 9 (12 February 2024)
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.