Wakilii

MBJ Technologies Limited v Mbarara City Council [2024] UGPPDPAAT 38

Tribunal · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of procurement process under section 106(9) of the Public Procurement and Disposal of Public Assets Act Cap 205, alleging lack of impartiality by the procuring entity
Decision
Application struck out for lack of jurisdiction; procurement process to continue

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that the application was incompetent for lack of jurisdiction. The applicant failed to adduce cogent and reasonable evidence to demonstrate that the Accounting Officer had a conflict of interest or that the matter could not be handled impartially by the procuring entity, as required under section 106(9) of the Public Procurement and Disposal of Public Assets Act. Mere allegations of procedural breaches do not establish conflict of interest or partiality. The application was struck out.

Outcome

Application struck out for lack of jurisdiction; procurement process to continue

Facts

Mbarara City Council invited bids for consultancy services for road supervision under the USMID-AF programme. Two firms submitted proposals: Athwax Consultants Limited and MBJ Technologies Limited. MBJ Technologies complained that the Respondent failed to display technical scores on its noticeboard as required by regulation 27(4) of the Evaluation Regulations 2023. MBJ filed an administrative review complaint on August 15, 2024, but the Respondent proceeded to open financial bids on August 17, 2024, and displayed the best evaluated bidder notice on August 21, 2024, before responding to the complaint on August 23, 2024. The Accounting Officer dismissed the complaint. MBJ then applied directly to the Tribunal under section 106(9), alleging lack of impartiality by the Respondent and challenging the evaluation of Athwax Consultants' bid on grounds including alleged deregistration, lack of specific experience, and non-objective scoring.

Issues

  1. Whether the Application before the Tribunal is competent?
  2. Whether the Respondent erred in law when it did not display the scores for technical bids before the opening of financial proposals or omitted to avail the Applicant with scores for technical bids before the opening of financial proposals?
  3. Whether Athwax Consultants Limited's bid was lawfully determined to be the best-evaluated bid by the Respondent?
  4. What remedies are available to the parties?

Orders

  • Application struck out.
  • Respondent may continue with the procurement to its logical conclusion.
  • Tribunal's suspension order dated August 28, 2024, vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Administrative Law — Jurisdiction — Locus Standi — Burden of Proof
A tribunal is duty-bound to inquire into the existence of facts to decide whether it has jurisdiction, and jurisdiction must be acquired before judgment is given. Locus standi means a right to appear in court, and a person with no locus standi has no right to appear or be heard in a specified proceeding.
Administrative Law — Public Procurement — Direct Access to Tribunal — Section 106(9) PPDA Act
Under section 106(9) of the Public Procurement and Disposal of Public Assets Act Cap 205, a bidder may apply directly to the Tribunal without first filing a complaint before the Accounting Officer only where the bidder believes that the Accounting Officer has a conflict of interest or that the matter cannot be handled impartially by the procuring entity. The applicant bears the onus to demonstrate this belief with cogent and reasonable evidence.
Administrative Law — Conflict of Interest — Definition and Standard of Proof
Conflict of interest is a real or seeming incompatibility between one's private interests and one's public or fiduciary duties. To establish conflict of interest or partiality, an applicant must adduce cogent and reasonable evidence showing that there was in fact such bias or real likelihood of bias. Mere vague suspicion or whimsical allegations are insufficient. The occurrence of conflict of interest must be clear and manifest, and there must be evidence that the person actually acted in favour of self-interest as opposed to public interest.
Administrative Law — Public Procurement — Allegations of Procedural Breach Distinguished from Conflict of Interest
Allegations of omission or breach by a procuring entity of the Act, regulations, guidelines, or bidding documents are not evidence of conflict of interest. The Public Procurement and Disposal of Public Assets Act prescribes a remedy for such breaches by making a complaint to the Accounting Officer. The mere making of an allegedly wrong decision does not of itself imply conflict of interest or partiality.

Legislation cited (11)

Cases cited (19)

  • Technology Associates Limited in consortium with Comviva Technologies Limited v Post Bank Uganda Limited (Application No. 6 of 2022)
  • JILK Construction Limited v Kira Municipal Council (Application No. 31 of 2024)
  • Njau & Others v City Council of Nairobi [1976-1985] 1 EA 397
  • Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd (1989) KLR 1
  • Magobe Badiru v Sironko District Local Government (Application No. 22 of 2024)
  • Kacyber Security Technologies Ltd v Mbarara City Council (Application No. 18 of 2024)
  • Baryaruha v Attorney General (Miscellaneous Cause No. 149 of 2016)
  • Uganda v Patricia Ojangole (Criminal Case No. 1 of 2014)
  • Belvin Wanjiru Namu v National Police Service Commission & another [2019] eKLR
  • Metropolitan Properties Ltd v Lannon [1968] 3 All ER 304
  • Mohammed Oladapo Ojengbede v M. O. Esan (Loja-Oke) (S.C. 132/1991) [2001] NGSC 58
  • R. v Sussex Justices, Ex parte McCarthy (1924) 1 K.B. 259
  • R. v Camborne Justices & Anor Ex parte Pearce (1955) 1 Q.B. 41
  • Federation of Railway Officers Association v Union of India (2003) 4 SCC 289
  • Rhino Engineering Works Limited v Otuke District Local Government (Application No. 24 of 2024)
  • Consortium of EAA Company LTD and East Africa Auto Technical Testing v UNBS (Application No. 31 of 2023)
  • Auto Terminal Japan Limited, Pal Auto Garage Ltd, Africa Automotive Analysis Ltd JV (Application No. 32 of 2023)
  • Abasamia Hwolerane Association Ltd v Jinja City Council (Application No. 18 of 2021)
  • SMS Construction Ltd, Farrin YYISVT Ltd & STI Joint Venture v Ministry of Justice and Constitution Affairs (Application No. 7 of 2022)

Full judgment

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

MBJ Technologies Limited v Mbarara City Council 2024 UGPPDPAAT 38 (16 September 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.