Wakilii

Maxol Uganda Limited v Uganda Electricity Generation Company Limited (Application No 3 of 2023)

Tribunal · [2023] UGPPDPAAT 5 · 2023 Application Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of Accounting Officer's decision dismissing administrative review complaint regarding procurement disqualification
Decision
Application struck out for being filed out of time; procurement process may proceed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal struck out the application on the ground that it was filed out of time. The Accounting Officer's decision dated 27 January 2023 was made beyond the statutory ten-day period and was therefore of no legal consequence. The applicant was required to file with the Tribunal within ten days of the expiry of the period for the Accounting Officer to decide, which expired on 2 February 2023. The application filed on 6 February 2023 was therefore time-barred. Statutory time limits in procurement law are mandatory and not mere technicalities.

Outcome

Application struck out for being filed out of time; procurement process may proceed

Facts

On 11 October 2022, the Respondent invited bids for supply of Heavy Fuel Oil for Namanve Thermal Power Plant. Three bidders submitted bids by 23 November 2022. On 9 January 2023, Rubis Energy Uganda Limited was declared Best Evaluated Bidder at USD 17,296,320.4992. The Applicant's bid was rejected because its Net Calorific Value of 40,483 KJ/kg fell below the required minimum of 40,585 KJ/kg. The Applicant filed an administrative review complaint with the Accounting Officer on 12 January 2023. The Accounting Officer dismissed the complaint on 27 January 2023. The Applicant filed this application with the Tribunal on 6 February 2023.

Issues

  1. Whether there is a competent application before the Tribunal
  2. Whether the Applicant's bid which stated a Net Calorific Value of 40,483 Kj/Kg when the bid document required a minimum Net Calorific Value of 40,585 Kj/Kg was substantially responsive within the meaning of the bid document, the law and practice
  3. Whether the Respondent was in breach for failing to consider a bid that was substantially responsive
  4. Whether disqualifying a bid that was substantially responsive, which bid was the lowest quoted bid at USD 15,133,007.2320 as opposed to the best evaluated bid which was quoted at USD 17,296,322.69 was in breach of the requirement of considering the lowest priced bid

Orders

  • Application struck out.
  • Tribunal's suspension order dated 6 February 2023 vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Administrative Law — Public Procurement — Statutory Time Limits — Mandatory Nature
Time limits set by the Public Procurement and Disposal of Public Assets Act are matters of substantive law and not mere technicalities and must be strictly complied with.
Administrative Law — Public Procurement — Accounting Officer's Decision — Time Limit for Making and Communicating Decision
Under section 89(7) of the Public Procurement and Disposal of Public Assets Act, an Accounting Officer must make and communicate a decision on an administrative review complaint within ten days of receipt. A decision made and communicated outside this period is made out of time, in breach of the law, and is of no legal consequence.
Administrative Law — Public Procurement — Application to Tribunal — Time Limit Where Accounting Officer Fails to Decide
Where an Accounting Officer does not make or communicate a decision within ten days of receipt of a complaint, the complainant has a right to make an application to the Tribunal within ten days of the expiry of the period given for the Accounting Officer to make and communicate a decision.
Administrative Law — Public Procurement — Jurisdiction of Tribunal — Effect of Non-Compliance with Statutory Time Limits
There is no enabling provision within the Public Procurement and Disposal of Public Assets Act that accords the Tribunal power to enlarge or extend time. Once a party fails to move within the time set by law, the jurisdiction of the Tribunal is extinguished in so far as the matter is concerned.
Administrative Law — Public Procurement — Best Evaluated Bidder — Status as Interested Party
A Best Evaluated Bidder is an interested party in a procurement process and ought to be involved in the administrative review process before the Tribunal. The Best Evaluated Bidder has a right to raise a preliminary objection and attend the hearing even where not impleaded as a respondent.
Administrative Law — Public Procurement — Administrative Review Fees — Effect of Late Payment on Accounting Officer's Duty
An Accounting Officer should not abdicate his duty to make and communicate a decision within statutory timelines simply because the procuring and disposing entity has not yet received the prescribed fees. The duty still lies on the Accounting Officer to promptly guide an aggrieved bidder on the prescribed administrative review fees and the mode of payment thereof upon receipt of a complaint.

Legislation cited (7)

Cases cited (18)

  • China National Aero Technology International Engineering Corporation (CATIC) v Public Procurement and Disposal of Assets Authority (Application No. 1 of 2016)
  • Tororo Cement Co Ltd v Frokina International Limited (Supreme Court Civil Appeal No. 2 of 2001)
  • MBJ Technologies Ltd v Public Procurement and Disposal of Public Assets Authority and 2 Others (Miscellaneous Cause No. 171 of 2021)
  • Acacia Place v Zhang Hao & Liu Ming Shu, PPDA & Electoral Commission (Civil Appeal No. 58 of 2018)
  • Fara Gostar Bistoon v Uganda Electricity Transmission Company Limited (Application No. 2 of 2023)
  • Kafophan and SIAAP Consortium v Ministry of Agriculture Animal Industry and Fisheries & Youth Alive Uganda (Application No. 31 of 2022)
  • World Standardization Certification & Testing Group (Shenzen) Co Ltd v Uganda National Bureau of Standards (Application No. 46 of 2022)
  • Ateker Community Energy Cooperative Ltd v Katakwi District Local Government (Application No. 44 of 2022)
  • Frida B Kwikiriza v Buliisa District Local Government (Application No. 28 of 2022)
  • Galleria in Africa Ltd v Uganda Electricity Distribution Company Ltd (Civil Appeal No. 8 of 2017)
  • Uganda Revenue Authority v Uganda Consolidated Properties Ltd (Civil Appeal No. 31 of 2000)
  • Apple Properties Ltd v Uganda Human Rights Commission (Application No. 1 of 2023)
  • Mbarara University of Science & Technology v Public Procurement and Disposal of Public Assets Authority & Steam Investments (U) Ltd (Civil Appeal No. 93 of 2020)
  • VCon Construction Ltd v Uganda Development Bank (Application No. 22 of 2021)
  • Samanga Elcomplus JV v Uganda Electricity Distribution Company Limited (Application No. 17 of 2021)
  • Kasokoso Services Limited v Jinja School of Nursing And Midwifery (Application No. 13 of 2021)
  • Lawrence Muwanga v Stephen Kyeyune (Supreme Court Civil Appeal No. 12 of 2001)
  • Roko Construction Limited v Public Procurement and Disposal of Public Assets Authority & Ors (Civil Appeal No. 59 of 2017)

Full judgment

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Maxol Uganda Limited v Uganda Electricity Generation Company Limited (Application No 3 of 2023) 2023 UGPPDPAAT 5 (27 February 2023)
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.