Wakilii

Nalu Tour and Travel Limited v Jinja City Council (Application No 30 of 2022)

Tribunal · [2022] UGPPDPAAT 29 · 2022 Application Partly Allowed — Procurement Cancelled AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of procurement decision under section 89(8) and 91(2)(b) of the PPDA Act 2003 following failure of Accounting Officer to decide administrative review within statutory timelines
Decision
Procurement cancelled; Respondent may retender

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 section 89(7) of the PPDA Act by failing to make and communicate an administrative review decision within the statutory ten-day period. The Tribunal found that the best evaluated bidder, Peshi Contractors Uganda Limited, did not submit adequate evidence of three years' experience in revenue collection as required by the bidding document. The Tribunal also found that the Respondent applied the requirement for a recommendation and indebtedness letter inconsistently across bidders, failing to subject all bidders to the same level of scrutiny. The procurement was cancelled.

Outcome

Procurement cancelled; Respondent may retender

Facts

The Applicant participated in a tender for revenue collection from day street parking in Jinja Central Division. On 27 September 2022, the Applicant received notice that Peshi Contractors Uganda Limited was declared the best evaluated bidder. The Applicant's bid was disqualified at the technical evaluation stage for lack of three years' experience, audited reports for the last two years, and a recommendation about indebtedness from Jinja City. On 8 September 2022, the Applicant applied for administrative review before the Accounting Officer of Jinja City Council. By 20 September 2022, the Applicant had received no communication or decision from the Accounting Officer and applied to the Tribunal under section 89(8) and 91(2)(b) of the PPDA Act 2003. The Applicant challenged the evaluation process, the declaration of the best evaluated bidder, and the authority of the Deputy Town Clerk to act as Accounting Officer.

Issues

  1. Whether the Accounting Officer erred in law and fact when he failed or omitted to make and communicate an administrative review decision within ten days of receipt of the Applicant's complaint?
  2. Whether the Respondent erred in law and fact when it declared Peshi Contractors Uganda Limited as the Best Evaluated Bidder?
  3. Whether the Respondent erred in law and fact when it initiated and undertook a procurement process under the authority of the Deputy Town Clerk, Mr. Mawerere Peter; not being an appointed Accounting Officer under the law?
  4. Whether the Respondent undertook a procurement process that had ambiguous and discriminatory requirements in as far as indebtedness to the Respondent and past performance of a bidder is concerned?
  5. Whether the Respondent erred in law and fact when it declared the Applicant's bid non-responsive on the ground that the Applicant lacked three years' experience, audited reports for the last two years, and a recommendation about its indebtedness from Jinja City?
  6. Whether the Respondent erred in fact and law when its officers and agents ignored or refused or delayed to issue the Applicant with a recommendation letter indicating that the Applicant had performed similar contracts with and is not indebted to Jinja City?

Orders

  • Application partially successful.
  • Procurement of non-consultancy services for revenue collection from day street parking - Jinja Central is cancelled.
  • Respondent is at liberty to retender the same if it so wishes.
  • Suspension order dated 20th September 2022 is vacated.
  • Each party to bear own costs.

Rules and key headnotes

Public Procurement — Administrative Review — Statutory Timelines — Failure to Decide Within Ten Days
Section 89(7) of the Public Procurement and Disposal of Public Assets Act 2003 requires the Accounting Officer to make and communicate an administrative review decision within ten days from the date of receipt of the application. Failure to do so is a continuing violation and contravention of the PPDA Act and constitutes a blatant breach of the law.
Public Procurement — Mandatory Statutory Provisions — Non-Compliance
The provisions of the procurement statute are for all purposes and intents mandatory and non-compliance with them makes the proceedings fatal.
Public Procurement — Evaluation Criteria — Experience Requirements — Proof of Experience
Where a bidding document requires bidders to have three years' experience in similar business and to attach evidence of performance in the form of reference letters or completion certificates, a bidder who submits letters that do not indicate the period of work or whether the work was actually done fails to meet the requirement.
Public Procurement — Evaluation — Consistency and Fairness — Unequal Treatment of Bidders
A procuring entity must subject all bidders to the same level of scrutiny regarding evaluation criteria. Where a requirement for a recommendation and indebtedness letter is applied inconsistently, with some bidders being disqualified for non-compliance while others who also failed to comply are not disqualified, the procurement process is unfair and contrary to the principles of transparency, accountability, and fairness.
Company Law — Ultra Vires — Memorandum of Association — Capacity to Contract
Under section 51(1) of the Companies Act 2012, the validity of an act done by a company shall not be called into question on the ground of lack of capacity by reason of anything contained in the company's memorandum. Any dispute exceeding the mandate of a company is an internal management matter for members of the company and its directors. A party dealing with the company is entitled to assume that there has been compliance with the objects clauses of the company.
Public Procurement — Delegation of Functions — Accounting Officer — Scope of Delegation
An accounting officer has the discretion to delegate procurement functions to a member of staff of the procuring and disposing unit under section 39(a)(ii) of the PPDA Act 2003. However, a delegation limited to confirming funding for a specific financial year does not extend to the performance of other duties of the Accounting Officer.

Legislation cited (12)

Cases cited (5)

  • Galleria in Africa Ltd v Uganda Electricity Distribution Company Ltd (Civil Appeal No. 08 of 2017)
  • Meera Investments Limited v URA & Numani Mubiakulamusa (Application No. 18 of 2022)
  • Technology Associates Ltd & COMVIVA Technologies Ltd v Postbank Uganda Ltd (Application No. 06 of 2022)
  • Vision Scientific & Engineering Limited v Makerere University (Applications No. 26 and 27 of 2022)
  • Mbarara City South Boda Boda Operators SACCO v Mbarara City Council (Application No. 22 of 2022)

Full judgment

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Nalu Tour and Travel Limited v Jinja City Council (Application No 30 of 2022) 2022 UGPPDPAAT 29 (11 October 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.