Wakilii

Mbale United and Another v Mbale City Council (Application No 12 of 2022)

Tribunal · [2022] UGPPDPAAT 12 · 2022 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for administrative review of procurement process before the Public Procurement and Disposal of Public Assets Appeals Tribunal
Decision
Procurement process cancelled; entity may retender if it wishes; applicant's administrative review fees to be refunded

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Holding

The Tribunal held that the Accounting Officer breached the law by failing to communicate a decision within ten days of receiving the complaint and by failing to suspend the procurement process upon receipt of the complaint. The bidding document's exemption of new SACCOs from the experience requirement was discriminatory and contrary to sections 43(a), 44, and 80(2) of the PPDA Act. However, the disqualification of indebted providers was not discriminatory, though the criterion lacked sufficient detail. The procurement process was cancelled.

Outcome

Procurement process cancelled; entity may retender if it wishes; applicant's administrative review fees to be refunded

Facts

On 4 March 2022, Mbale City Council issued a call for bids for collection of revenue from vehicles/trucks loading and offloading in Mbale City. Two bidders purchased the bidding documents. On 21 March 2022, the Applicant applied to the Accounting Officer for administrative review, alleging that the bidding documents were discriminatory. On 24 March 2022, an ad hoc committee was appointed to handle the review. On 29 March 2022, bids were received and opened. On 5 April 2022, the Applicant applied to the Tribunal for administrative review. The ad hoc committee found paragraph 5.1(d) of the evaluation criteria discriminatory but found ITB 12.1(f) not discriminatory. The Accounting Officer failed to communicate a decision within the statutory ten-day period and failed to suspend the procurement process upon receipt of the complaint.

Issues

  1. Whether the Accounting Officer of the Respondent erred in law and fact when he failed to make and communicate a decision following receipt of a complaint.
  2. Whether the Respondent erred in law and fact when it failed to suspend the procurement process and proceeded to receive and open bids submitted.
  3. Whether the bidding document's exemption of new SACCOS from the requirement for experience is discriminatory.
  4. Whether the bidding document's disqualification of providers who are indebted to the Respondent or elsewhere is discriminatory.

Orders

  • Application partly allowed.
  • Procurement process cancelled.
  • Entity may retender the procurement if it so wishes.
  • Tribunal's suspension order dated April 5, 2022 vacated.
  • Respondent shall refund the Applicant's administrative review fees.
  • Each party to bear its own costs.

Rules and key headnotes

Public Procurement — Administrative Review — Timing of Application
An application for administrative review under section 89 of the Public Procurement and Disposal of Public Assets Act may be made by any bidder who is aggrieved by a decision, omission, or breach of a procuring entity at any time during the procurement process, and is not limited to the period after display of the best evaluated bidder notice.
Public Procurement — Accounting Officer's Duty — Decision Timeline
Under section 89(7) of the Public Procurement and Disposal of Public Assets Act, the Accounting Officer has ten days within which to make and communicate a decision on a complaint for administrative review, and failure to do so is a blatant breach of the law.
Public Procurement — Suspension of Procurement Process
Under section 89(5) of the Public Procurement and Disposal of Public Assets Act, on receipt of a complaint, the Accounting Officer shall immediately suspend the procurement and disposal process. This provision is mandatory and failure to suspend constitutes an error in law and fact.
Public Procurement — Non-Discrimination — Qualification Criteria
Once a procuring entity sets qualification criteria, they must apply to all bidders on equal terms without discrimination. An exemption of certain bidders from a qualification requirement applicable to others is discriminatory and contrary to sections 43(a), 44, and 80(2) of the Public Procurement and Disposal of Public Assets Act.
Public Procurement — Evaluation Criteria — Clarity Requirement
All solicitation documents must fully and comprehensively detail the evaluation methodology and criteria under section 71(2) of the PPDA Act. Evaluation criteria that do not clearly specify what amounts to disqualification and how bidders will be evaluated fail to meet this standard.

Legislation cited (14)

Cases cited (2)

  • Galleria in Africa Ltd v Uganda Electricity Distribution Company Ltd (Civil Appeal No. 2017 of 2017)
  • Engineering Solutions Uganda Ltd v Ministry of Water and Environment (Application No. 21 of 2022)

Full judgment

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

Mbale United and Another v Mbale City Council (Application No 12 of 2022) 2022 UGPPDPAAT 12 (4 May 2022)
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.