Wakilii

Mbarara City United Bikadde Market Vendors Association v Mbarara City Council (Application 23 of 2023)

Tribunal · [2023] UGPPDPAAT 26 · 2023 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of procurement decision following unsuccessful administrative review before the Accounting Officer
Decision
Contract award set aside and matter remitted to the Entity for re-evaluation in accordance with the bidding document, Government policy, and applicable law

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that the Accounting Officer breached statutory timelines by failing to respond to the administrative review complaint within 10 days. The Respondent erred by failing to apply the Government policy and evaluation criteria requiring priority for vendors' cooperatives and associations in markets with reserve prices above UGX 4,000,000, and by failing to assess whether bid prices were unrealistic. The contract award was set aside and the matter remitted for re-evaluation in accordance with the bidding document and applicable law.

Outcome

Contract award set aside and matter remitted to the Entity for re-evaluation in accordance with the bidding document, Government policy, and applicable law

Facts

Mbarara City Council initiated a procurement for collection of revenue from Nyamityobora Bikadde weekly market with a reserve price of UGX 8,712,000. Five bidders submitted bids. The Applicant, a registered vendors' association, bid UGX 9,250,000. Lubega Derick was awarded the contract at UGX 11,242,400 per month. The bidding document stated that cooperatives and associations would be given priority for markets with reserve prices above UGX 4,000,000. The Applicant filed an administrative review complaint on October 2, 2023, but the Accounting Officer did not respond within the statutory 10-day period. The Applicant then filed this application with the Tribunal on October 17, 2023.

Issues

  1. Whether the Respondent's Accounting Officer failed to communicate his decision on administrative review within the statutory timelines?
  2. Whether the Respondent erred when it did not apply the Government policy and evaluation criteria to give priority to vendors' co-operatives and associations?
  3. Whether the bid prices of the bidders were evaluated according to the bidding document?
  4. What remedies are available to the parties?

Orders

  • Application allowed in part.
  • Award of contract to Lubega Derick for collection of revenue from Nyamityobora Bikadde weekly market set aside.
  • Respondent directed to re-evaluate the bids for collection of revenue from Nyamityobora Bikadde weekly market in a manner not inconsistent with this decision, the bidding document and the law.
  • Re-evaluation to be completed within 10 working days from the date of this decision.
  • Tribunal's suspension order dated October 17, 2023 vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Administrative Review — Statutory Timelines — Accounting Officer's Duty to Respond
An Accounting Officer is duty bound to make and communicate a decision within 10 days upon receipt of a complaint from a bidder under section 89(7) of the Public Procurement and Disposal of Public Assets Act. Failure or omission to make and communicate an administrative review decision within statutory timelines is a blatant breach of the law.
Government Policy — Ministerial Directives — Legal Status and Binding Effect
Government policy directives issued by the Minister of Local Government under section 95 of the Local Governments Act and regulation 11(1) of the Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006 are valid and binding on local government entities, even if not issued as statutory instruments. Administrative review tribunals must apply ministerial policy unless the policy is unlawful or there are cogent reasons to the contrary.
Public Procurement — Market Management — Priority for Vendors' Associations
Where a bidding document incorporates Government policy requiring priority for vendors' cooperatives and associations in markets with reserve prices above a specified threshold, the procuring entity is under an obligation to apply that criterion during evaluation. Priority means that vendors' cooperatives and associations must be given preference, subject to their bids being substantially compliant and meeting the reserve price. Bid price is not the only determining factor.
Public Procurement — Evaluation Criteria — Mandatory Application
Under section 52 and section 71(3) of the Public Procurement and Disposal of Public Assets Act, a contract must be awarded to the best evaluated bidder ascertained based on the methodology and criteria stated in the bidding documents. No evaluation criteria other than those stated in the bidding documents shall be taken into account. Where evaluation criteria are set, the procuring entity is duty bound to apply those criteria unless waived.
Public Procurement — Tribunal Powers — Remittal for Re-evaluation
It is not the function of the Public Procurement and Disposal of Public Assets Appeals Tribunal to evaluate bids or award tenders. Where the Tribunal finds that evaluation criteria were not properly applied, the appropriate remedy is to remit the procurement back to the entity for re-evaluation in accordance with the bidding document and the law.

Legislation cited (10)

Cases cited (8)

Full judgment

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Mbarara City United Bikadde Market Vendors Association v Mbarara City Council (Application 23 of 2023) 2023 UGPPDPAAT 26 (6 November 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.