Wakilii

Nami Hardware Limited v Mbale District Local Government (Application 7 of 2024)

Tribunal · [2024] UGPPDPAAT 7 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of procurement decision before the Public Procurement and Disposal of Public Assets Appeals Tribunal
Decision
Contract award set aside and procurement remitted for re-evaluation

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that the Respondent erred in disqualifying the Applicant's bid on grounds that it did not attach the code of conduct in ESHS form and did not attach organisation qualification form. The Tribunal found that the Applicant had submitted the required ESHS documentation and qualification forms, though not in the exact format prescribed. Applying the principle that substance prevails over form, the Tribunal set aside the contract award and remitted the procurement for re-evaluation.

Outcome

Contract award set aside and procurement remitted for re-evaluation

Facts

Mbale District Local Government tendered for construction of a three-classroom block at Jewa Primary School. Five bidders submitted bids. The Evaluation Committee recommended Gebana Company Ltd, whose bid exceeded the reserve price. Following negotiation, Gebana Company Ltd was declared best evaluated bidder at UGX 157,190,152. Nami Hardware Ltd's bid was disqualified on grounds that it did not attach the code of conduct in ESHS form and did not attach organisation qualification form. Nami Hardware Ltd filed an administrative review complaint which was dismissed. The Applicant then filed this application before the Tribunal seeking review of the procurement decision.

Issues

  1. Whether the Applicant's bid was rightfully disqualified by the Respondent?
  2. What remedies are available to the parties?

Orders

  • Application allowed.
  • Award of contract to Gebana Company Ltd set aside.
  • Respondent directed to re-evaluate the bids in a manner not inconsistent with the decision of the Tribunal, the bidding document, and the law.
  • Re-evaluation to be completed within ten (10) working days from the date of this decision.
  • Respondent to refund the administrative review fees paid by the Applicant.
  • Tribunal's suspension order dated January 25, 2024, vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Public Procurement — Bid Evaluation — Substance Over Form
Non-conformity with the specific format of form provided for in the standard bidding document issued by a procuring and disposing entity does not render the format submitted by a bidder void where the substance of the required information has been provided. The focus is on the substance rather than the form.
Public Procurement — ESHS Documentation — Evaluation Criteria
Where a bidder submits ESHS code of conduct for contractor's personnel, environmental and social management strategies, and implementation plans including code of conduct as required by the bidding document, the bid cannot be disqualified for failure to attach ESHS documentation merely because the documents were not in the exact prescribed format.
Public Procurement — Environmental and Social Management Plan — Timing of Submission
The Environment and Social Management Plan (ESMP) is a futuristic document which is relevant to a bidder who has been awarded the contract and has become the contractor. It is not an evaluation criteria during the evaluation process.
Public Procurement — Qualification Forms — Sufficiency of Information
Where a bidder submits all the information sheets required by the bidding document for purpose of establishing qualifications and capacity to perform the contract, the bid cannot be disqualified for failure to attach organisation qualification forms. Whether the information submitted is correct and sufficient is a matter for the evaluation committee's discretion exercised through due diligence.

Legislation cited (2)

  • Interpretation Act s.43
  • Public Procurement and Disposal of Public Assets (Procuring and Disposing Entities) Regulations 2023 reg.26

Cases cited (5)

  • Samanga Elcomplus JU v PPDA & UEDCL (Application No. 4 of 2021)
  • Frida B. Kwikiriza v Buliisa District Local Government (Application No. 28 of 2022)
  • Kasokosoko Services Ltd v Jinja School of Nursing and Midwifery (Application No. 13 of 2021)
  • Orungo Market Vendors Association v Amuria District Local Government (Application No. 41 of 2022)
  • Gat Consults Limited v National Water and Sewerage Corporation (Application No. 30 of 2021)

Full judgment

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

Nami Hardware Limited v Mbale District Local Government (Application 7 of 2024) 2024 UGPPDPAAT 7 (19 February 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.