Wakilii

Mulago Hill Diagnostics Limited v National Water and Sewarage Coperation (Application No 13 of 2022)

Tribunal · [2022] UGPPDPAAT 1 · 2022 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for administrative review of procurement decision before the Public Procurement and Disposal of Public Assets Appeals Tribunal
Decision
Procurement process cancelled by the Tribunal; Respondent may re-tender if it wishes

Observed later treatment

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Holding

The Tribunal held that the purported cancellation of the procurement process after contract award and without Contracts Committee approval was a nullity. The evaluation committee erred by accepting a Distributor's Authorisation instead of the required Manufacturer's Authorisation, constituting a material deviation from the bidding document. The best evaluated bidder's bid should have been disqualified at preliminary examination. The Tribunal substituted the invalid cancellation with its own cancellation of the procurement process.

Outcome

Procurement process cancelled by the Tribunal; Respondent may re-tender if it wishes

Facts

In December 2021, National Water and Sewerage Corporation published a bid notice for procurement of HACH chemicals and reagents. On 25 March 2022, Palin Corporation Limited was named Best Evaluated Bidder while the Applicant's bid was rejected for offering a higher price. On 31 March 2022, the Applicant filed an administrative review complaint alleging that the Best Evaluated Bidder submitted a Distributor's Authorisation instead of the required Manufacturer's Authorisation, and that the Evaluation Committee unlawfully waived this requirement. On 7 April 2022, the Managing Director informed the Applicant that the procurement had been cancelled. The Applicant then lodged this application with the Tribunal on 13 April 2022, challenging both the evaluation process and the cancellation decision.

Issues

  1. Whether the procurement process was lawfully cancelled by the Respondent?
  2. Whether the evaluation committee conducted the evaluation process in compliance with the law and the bidding document?
  3. Whether the bid of Palin Corporation Ltd (the best evaluated bidder) was complete without a Manufacturer's Authorisation as required in the Bidding Document?
  4. Whether the Procuring and Disposing Entity erred in law when it omitted to investigate and make a decision on the allegation of fraudulent practice by the Best Evaluated Bidder?
  5. Whether the Procuring and Disposing Entity erred in law when it omitted to investigate the substantive and factual grounds raised in the Complaint?
  6. Whether the provisions of ITB 3.1(c) of the bidding document do not apply to the Best Evaluated Bidder?
  7. Whether the Respondent should proceed under ITB Clause 38.3 to award the Contract to the next best evaluated bidder?

Orders

  • Application succeeds in part.
  • The decision of the Accounting Officer dated April 7, 2022 is set aside.
  • The procurement process under Procurement Ref No: NWSC-HQ/SUPLS/21-22/172693 is cancelled.
  • The Tribunal's suspension order dated April 13, 2022 is vacated.
  • The Respondent may re-tender the procurement if it so wishes.
  • Each party shall bear its costs of this Application.

Rules and key headnotes

Administrative Law — Procurement Appeals — Jurisdiction — Cancellation of Procurement — Validity of Cancellation
The Public Procurement and Disposal of Public Assets Appeals Tribunal has jurisdiction to inquire into the validity of a cancellation of a procurement process, including whether the cancellation was done prior to contract award and whether it was approved by the contracts committee, even though the Tribunal cannot inquire into the reasons for cancellation.
Administrative Law — Procurement — Cancellation — Timing and Approval Requirements
For a cancellation of a procurement process to be valid under section 75(1) of the Public Procurement and Disposal of Public Assets Act, it must be made prior to the award of a contract and must be approved by the contracts committee. A cancellation made after the contracts committee has awarded the contract and without obtaining the committee's approval is a nullity.
Administrative Law — Procurement — Evaluation — Material Deviation — Manufacturer's Authorisation
A Distributor's Authorisation is not equivalent to a Manufacturer's Authorisation where the bidding document specifically requires the latter. The failure to submit a Manufacturer's Authorisation as required by the bidding document constitutes a material deviation under Regulation 11(4)(c) of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014, as correcting it would unfairly affect the competitive position of other bidders who complied with the requirement.
Administrative Law — Procurement — Evaluation — Amendment of Evaluation Criteria
An evaluation committee shall not, during an evaluation, make an amendment or addition to the evaluation criteria stated in the bidding document, and shall not use any other criteria than those stated in the bidding document. Accepting a Distributor's Authorisation in place of a required Manufacturer's Authorisation constitutes an unlawful amendment to the evaluation criteria.
Administrative Law — Procurement — Clarification — Limits on Requesting Further Information
An evaluation committee may request clarification of information or submission of documentation only where there is a non-material deviation or an arithmetic error. The committee cannot request further information from a bidder whose bid contains a material deviation. A bid that should have been disqualified at the preliminary examination stage is not substantially compliant and responsive, and no clarification can cure the defect.
Administrative Law — Procurement Appeals — Mootness — Compulsion to Continue Procurement
Where a procuring entity has clearly indicated it is no longer interested in a procurement process, the Tribunal cannot compel the entity to continue with the process even if the purported cancellation was invalid. Such an order would be legally moot and academic, would cause unnecessary hardship, and would set an onerous and illogical precedent. The Tribunal may substitute an invalid cancellation with its own cancellation.

Legislation cited (23)

Cases cited (12)

Full judgment

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Mulago Hill Diagnostics Limited v National Water and Sewarage Coperation (Application No 13 of 2022) 2022 UGPPDPAAT 1 (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.