Wakilii

Mixjet Flight Support FZE v Uganda National Airlines Limited [2023] UGPPDPAAT 32

Tribunal · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of procurement decision following administrative review dismissal
Decision
Procurement cancelled; Respondent may re-tender if it wishes

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that the Applicant's complaint substantially complied with statutory requirements despite the Accounting Officer's dismissal on procedural grounds. The Accounting Officer's decision was a nullity for being made outside the mandatory ten-day statutory timeline. The Respondent erred in disqualifying the Applicant's bid by including non-eligibility criteria in the eligibility requirements and by treating bidders unequally. The procurement was cancelled.

Outcome

Procurement cancelled; Respondent may re-tender if it wishes

Facts

The Respondent invited bids for supply of aviation fuel and inflight support using open international bidding on November 8, 2022. Ten bidders received bidding documents; four responded for Lot 1 and four for Lot 2. The Applicant's bid was disqualified at the preliminary stage for alleged non-compliance with eligibility criteria including lack of evidence of payment of business taxes, non-submission of notarized power of attorney, absence of third-party aviation liability insurance, lack of HSE policy, no evidence of AFRAA participation, and no proof of authorization to supply fuel at Entebbe. The Applicant challenged the decision through administrative review on January 27, 2023. The Accounting Officer dismissed the complaint on February 9, 2023, citing non-compliance with procedural requirements including failure to pay prescribed fees, absence of date, and lack of addressee. The Applicant then filed this application with the Tribunal on February 13, 2023.

Issues

  1. Whether the format of the Application is competent
  2. Whether there was a valid complaint before the Accounting Officer of the Respondent
  3. Whether the decision of the Accounting Officer of the Respondent is valid
  4. Whether the Respondent erred when it disqualified the Applicant's bid

Orders

  • The Application is allowed.
  • The Decision of the Accounting Officer of the Respondent dated February 9, 2023, is a nullity and is set aside.
  • The procurement for supply of aviation fuel and inflight support under Procurement Reference Number UNACL/SUPLS/22-23/00020, is cancelled.
  • The Respondent may re-tender the procurement if it so wishes.
  • The Tribunal's suspension order dated February 14, 2023, is vacated.
  • Each party shall bear its own costs.

Rules and key headnotes

Administrative Review — Statutory Compliance — Electronic Communications
Under sections 2(1) and 95B of the Public Procurement and Disposal of Public Assets Act read together with section 5(4)(a) and (b) of the Electronic Transactions Act 2011, electronic messages are deemed to be 'writing' for purposes of administrative review complaints.
Administrative Review — Payment of Fees — Duty to Advise
An Accounting Officer is duty-bound to advise a complainant on the prescribed administrative review fees and where to pay the said fees upon receipt of a complaint. Late payment or non-payment of administrative review fees is not necessarily fatal where the proper fees can be assessed and paid.
Administrative Review — Statutory Timelines — Nullity
The provisions of section 89(7) of the Public Procurement and Disposal of Public Assets Act requiring an Accounting Officer to make and communicate an administrative review decision within ten days from the date of receipt of the application are mandatory. A decision made outside the statutory timeline is a nullity.
Procurement — Eligibility Criteria — Unlawful Inclusion
Requirements such as notarized powers of attorney, third-party aviation liability insurance, and evidence of participation in specific industry projects are not eligibility requirements under regulation 17(2) of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014. Including such requirements in eligibility criteria is unlawful and contrary to regulation 23(3)(d) of the Public Procurement and Disposal of Public Assets (Rules and Methods for Procurement of Supplies, Works and Non-Consultancy Services) Regulations 2014.
Procurement — Equal Treatment of Bidders — Discriminatory Evaluation
All public procurement must be conducted in accordance with the basic principles of non-discrimination, transparency, accountability and fairness under Part IV of the Public Procurement and Disposal of Public Assets Act. Discriminatory treatment of bidders and unfair favouring of certain bidders in the evaluation process violates these principles and renders the procurement process unlawful.
Procurement — Open International Bidding — Restrictive Criteria
An entity conducting a procurement process using the open international bidding method is precluded by section 81(1) of the Public Procurement and Disposal of Public Assets Act from using restrictive evaluation criteria that limit participation of providers, do not have equal terms for all providers, or specifically limit participation of foreign providers.
Procurement — Material Deviation — Request for Clarification
Where a bidder's submission contains an omission that does not constitute a material deviation, the procuring entity should request clarification and additional documentation from the bidder in accordance with Regulation 10 of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014, rather than disqualifying the bid.

Legislation cited (27)

Cases cited (13)

  • Public Procurement and Disposal of Public Assets Authority v Peace Gloria (High Court Civil Appeal No. 6 of 2016)
  • Public Procurement and Disposal of Public Assets v Pawor Park Operators and Market Vendors SACCO (High Court Civil Appeal No. 3 of 2016)
  • Apple Properties Limited v Uganda Human Rights Commission (Tribunal Application No. 1 of 2023)
  • Vision Scientific & Engineering Limited v Makerere University (Tribunal Application No. 27 of 2022)
  • Kasokosoko Services Ltd v Jinja School of Nursing and Midwifery (Tribunal Application No. 13 of 2021)
  • CATIC v Public Procurement and Disposal of Public Assets Authority (Tribunal Application No. 1 of 2016)
  • Frida B. Kwikiriza v Buliisa District Local Government (Tribunal Application No. 28 of 2022)
  • Mbarara University of Science & Technology v Public Procurement and Disposal of Public Assets Authority & Steam Investments (U) Ltd (High Court Civil Appeal No. 93 of 2020)
  • Samanga Elcomplus JV v Uganda Electricity Distribution Company Limited (Tribunal Application No. 17 of 2021)
  • Vcon Construction Ltd v Uganda Development Bank (Tribunal Application No. 22 of 2021)
  • Orungo Market Vendors Association v Amuria District Local Government (Tribunal Application No. 41 of 2022)
  • Vision Scientific & Engineering Limited v Makerere University (Tribunal Applications No. 26 and 27 of 2022)
  • CFAO Motors (U) Ltd v National Forestry Authority (Tribunal Application No. 16 of 2022)

Full judgment

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Mixjet Flight Support FZE v Uganda National Airlines Limited 2023 UGPPDPAAT 32 (7 March 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.