Libra Court Bailiffsamp Auctioneers v National Water and Sewerage Corporation (Application No 5 of 2022)

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 dismissed the application challenging the procurement decision. The Accounting Officer validly delegated authority to handle the administrative review. The bidding document was properly approved by the Contracts Committee. The evaluation committee reasonably waived the requirement for an auctioneer's licence under the Auctioneers Act and accepted trading licences instead, as the licensing authority no longer issued auctioneer's licences and trading licences were basic eligibility documents. The evaluation process properly considered technical and legal criteria before financial comparison. Post-qualification was not required as the bidding document contained no post-qualification criteria.

Outcome

Application dismissed; procurement may proceed to conclusion

Facts

NWSC issued a call for bids for disposal of grounded motor vehicles, motorcycles and old tyres using the quotation method. Six firms were shortlisted and three submitted bids. During evaluation, the committee noted that no bidder had attached a valid Auctioneer's Licence as required by the bidding document. The committee sought clarification and the applicant claimed the licence was nullified and no longer issued by City Authorities. Kiwa Associates claimed the trading licence was equivalent. The evaluation committee waived the auctioneer's licence requirement and accepted trading licences instead. Kiwa Associates was declared best evaluated bidder at UGX 200,000 plus 0.0001% commission. The applicant was disqualified at the financial stage for offering a higher price. The applicant sought administrative review, which was rejected by the Accounting Officer's delegate. The applicant then applied to the Tribunal.

Issues

1. Whether the decision by the Entity dated February 2, 2022, was made by the Accounting Officer of the Entity.
2. Whether the bidding document relied upon by the Entity was approved by the Contracts Committee.
3. Whether the procurement process at the Entity is run as a family business.
4. Whether an NSSF clearance certificate was a requirement which the best evaluated bidder did not provide.
5. Whether the criteria used to invite bidders was proper.
6. Whether the best evaluated bidder should have been disqualified during evaluation process for not having an Auctioneer's licence.
7. Whether the evaluation process was based on the lowest price offered without taking into consideration the technical and legal criteria.
8. Whether the Respondent erred when it did not conduct post-qualification on the best evaluated bidder.
9. What remedies are available to the parties.

Orders

• The Application is dismissed.
• The Tribunal's suspension order dated 11th February 2022 is vacated.
• The Respondent may continue with the procurement to its logical conclusion.
• Each party bear its own costs.

Rules and key headnotes

Legislation cited (29)

• Public Procurement and Disposal of Public Assets Act 2003 s.26
• Public Procurement and Disposal of Public Assets Act 2003 s.28(c)
• Public Procurement and Disposal of Public Assets Act 2003 s.29
• Public Procurement and Disposal of Public Assets Act 2003 s.29(a)(ii)
• Public Procurement and Disposal of Public Assets Act 2003 s.45
• Public Procurement and Disposal of Public Assets Act 2003 s.46
• Public Procurement and Disposal of Public Assets Act 2003 s.48
• Public Procurement and Disposal of Public Assets Act 2003 s.62
• Public Procurement and Disposal of Public Assets Act 2003 s.70(c)
• Public Procurement and Disposal of Public Assets Act 2003 s.71(3)
• Public Procurement and Disposal of Public Assets Act 2003 s.89(4)
• Public Procurement and Disposal of Public Assets Act 2003 s.91K(2)
• Public Procurement and Disposal of Public Assets (Procuring & Disposing Entities) Regulations 2014 Reg.21(1)
• Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 Reg.6(3)
• Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 Reg.6(3)(b)
• Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 Reg.11(3)(a)
• Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 Reg.17(2)(e)
• Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 Reg.17(3)
• Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 Reg.17(3)(a)
• Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 Reg.34
• Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 Reg.34(3)
• Public Procurement and Disposal of Public Assets (Rules and Methods for Procurement of Supplies, Works and Non-consultancy Services) Regulations 2014 Reg.43(1)
• Public Procurement and Disposal of Public Assets (Rules and Methods for Procurement of Supplies, Works and Non-consultancy Services) Regulations 2014 Reg.43(3)(c)
• Public Procurement and Disposal of Public Assets (Contracts) Regulations 2014 Reg.5
• Public Procurement and Disposal of Public Assets (Tribunal) (Procedure) Regulations 2016 Reg.20(3)
• Auctioneers Act Cap. 270
• Trade (Licensing) Act
• Trade Licensing (Amendment of Schedule) Instrument S.I No. 2 of 2017
• Judicature (Court Bailiffs) Rules 1987

Cases cited (4)

• Desouza v Tanga Town Council (1961) E.A. 337
• Annebrit Aslund v Attorney General (Misc Cause No. 441 of 2004)
• R v Secretary of State for Environment, Ex parte Hammersmith & Anor (1991) 1 AC 521
• Finishing Touches v Attorney General (Civil Suit No. 144 of 2010)

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