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Maleka Engineering and Construction Company Limited and Another v Kira Municpal Council (Application 30 of 2024)

Tribunal · [2024] UGPPDPAAT 32 · 2024 Application Dismissed 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
Application dismissed; procurement process may proceed

Observed later treatment

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Holding

The Tribunal dismissed the application. The Applicant's joint venture partner submitted a tax clearance certificate that had expired before the bid submission deadline and could not be cured by a request for resubmission. The Applicant's bid was also non-responsive to technical requirements on personnel and equipment. Further, the Tribunal found that Teskon Muhendislik Limited STI was not the same entity as Teskon Proses Degerli Madenler Finansal Danismanlik Ticaret Limited Sirketi, whose documents were submitted in the bid.

Outcome

Application dismissed; procurement process may proceed

Facts

Kira Municipal Council advertised a procurement for construction of selected roads under the Greater Kampala Metropolitan Area-Urban Development Program. Eight bidders submitted bids. The Respondent displayed a Notice of Best Evaluated Bidder indicating Chongqing International Construction Co. Ltd as the best evaluated bidder at UGX 59,004,911,926.82. The Applicant, a joint venture between a Ugandan company and a Turkish company, was disqualified at the preliminary stage. The Applicant's bid price was UGX 51,155,344,855 with a 5% discount. The Applicant challenged the disqualification, arguing its bid was the lowest and that the Respondent should have requested a valid tax clearance certificate. The Respondent maintained that the tax clearance certificate submitted by the Turkish partner was invalid as it covered 2018-2020 and was in a different commercial name.

Issues

  1. Whether the Respondent erred when it disqualified the Applicant's bid for submitting an invalid tax clearance certificate.
  2. Whether the Applicant's bid was responsive to the detailed evaluation criteria on personnel and equipment.
  3. Whether Teskon Muhendislik Limited STI is the same entity as Teskon Proses Degerli Madenler Finansal Danismanlik Ticaret Limited Sirketi.
  4. What remedies are available to the parties.

Orders

  • Application dismissed.
  • Respondent may continue with the procurement process to its logical conclusion.
  • Tribunal's suspension order dated May 31, 2024, vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Public Procurement — Tax Clearance Certificate — Validity Requirement
A tax clearance certificate submitted by a bidder must be valid at the date of the deadline for bid submission. Where an invalid or expired tax clearance certificate is submitted, the procuring entity is not obligated under Regulation 17(6) of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2023 to request the bidder to submit a valid certificate, as that provision applies only where no certificate was submitted at all.
Public Procurement — Clarification and Request for Documents — Limits
The evaluation committee's discretion to seek clarification or request additional documents under Regulation 6 of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2023 should only be exercised where there is a nonconformity or omission that is not a material deviation. A clarification is not meant to aid the submission of a correct document when the wrong one was earlier submitted by a bidder.
Public Procurement — Joint Ventures — Eligibility Requirements
For joint ventures or consortiums, each member or partner must present the documentation required under the eligibility criteria, including a valid tax clearance certificate. Where a partner is a foreign firm, it must submit an equivalent tax clearance certificate from its country of domicile.
Public Procurement — Corporate Identity — Reliance on Documents of Another Entity
It is grossly irregular for a bidding entity to rely on and submit documents in a procurement whose commercial title is different from its own name or title, in the absence of documentation detailing any agreement or arrangement between the two entities or proof of a change of name.
Public Procurement — Merits Review — Tribunal's Role
The Public Procurement and Disposal of Public Assets Appeals Tribunal is a merits review body whose decision involves consideration of whether, on the available facts, the decision made was correct. This includes reconsidering the facts, law and policy aspects of the original decision, determining the correct decision, and ensuring fair treatment of all persons affected by a decision.
Public Procurement — Evaluation — Responsiveness to Technical Requirements
A bid that fails to meet the technical requirements on personnel and equipment as specified in the bidding document is non-responsive and must be rejected in accordance with the Instructions to Bidders, even if it is the lowest priced bid.

Legislation cited (9)

  • Public Procurement and Disposal of Public Assets Act 2003 s.43(c)
  • Public Procurement and Disposal of Public Assets Act 2003 s.46
  • Public Procurement and Disposal of Public Assets (Contracts) Regulations 2023 reg.3(1)(d)
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2023 reg.6(1)
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2023 reg.6(2)
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2023 reg.7(4)
  • 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)
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2023 reg.17(7)

Cases cited (3)

Full judgment

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Maleka Engineering and Construction Company Limited and Another v Kira Municpal Council (Application 30 of 2024) 2024 UGPPDPAAT 32 (24 June 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.