Wakilii

Obon Infrastructure Development J V v Mbarara City and Another (Application No 20 of 2021)

Tribunal · [2021] UGPPDPAAT 16 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to the Public Procurement and Disposal of Public Assets Appeals Tribunal challenging procurement process and contract award
Decision
Contract cancelled and set aside

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that it had jurisdiction under section 91I(1)(b) to review decisions affecting persons' rights. The application was not barred by res judicata as the impugned notice and contract did not exist during prior proceedings. The 1st Respondent failed to display and serve the best evaluated bidder notice as required by law and the bidding document. The bids expired on 4 August 2021 and no valid extension was obtained before expiry. The contract executed on 25 August 2021 was therefore void. The contract was cancelled and set aside.

Outcome

Contract cancelled and set aside

Facts

Mbarara City advertised a tender for consultancy services for supervision of roadworks. Three bidders passed technical evaluation. The Applicant lodged an administrative review on 5 March 2021 with a post-dated cheque for fees. The Accounting Officer dismissed the complaint on 12 March 2021. The Tribunal allowed the application on 17 May 2021 and cancelled the procurement. MBJ Technologies Ltd obtained judicial review in the High Court which quashed the Tribunal's decision on 29 July 2021. On 30 July 2021, the Contracts Committee awarded the tender to MBJ Technologies Ltd at UGX 1,754,680,000. The contract was signed on 25 August 2021. The Applicant filed this application on 27 September 2021 alleging failure to display best evaluated bidder notice and illegal resumption of a cancelled procurement.

Issues

  1. Whether the Tribunal has jurisdiction to hear this application.
  2. Whether this application is barred by res judicata.
  3. Whether the 1st Respondent's failure to deliver and display the Best Evaluated Bidder notice violated the procurement laws.
  4. Whether the 1st Respondent erred in conducting a procurement process that had been cancelled.

Orders

  • Application allowed.
  • Contract between Mbarara City Council and MBJ Technologies Ltd in association with Hersun Consults Ltd dated 25 August 2021 cancelled and set aside.
  • 1st Respondent to pay the Applicant's taxed costs for this application.

Rules and key headnotes

Public Procurement — Tribunal Jurisdiction — Section 91I(1)(b) — Person Adversely Affected
Section 91I(1)(b) of the Public Procurement and Disposal of Public Assets Act creates a wide path for persons who are not necessarily bidders but are aggrieved by a decision made by an Accounting Officer to apply to the Tribunal for review. The Tribunal has jurisdiction to handle applications from any person whose rights are adversely affected by a decision of the Accounting Officer.
Public Procurement — Res Judicata — Subsequent Events — Matters Not in Existence
Res judicata does not apply where the impugned notice and contract were not in existence at the time of filing and adjudication of prior proceedings. Complaints about documents that did not exist during earlier litigation cannot be said to be matters which were raised or ought to have been raised in the previous litigation.
Public Procurement — Best Evaluated Bidder Notice — Display and Service Requirements
Where a bidding document requires the procuring entity to copy and deliver the notice of best evaluated bidder to all bidders, the entity must prove compliance with that requirement. Failure to display and serve the notice of best evaluated bidder in accordance with the law and bidding document renders the procurement process non-compliant.
Public Procurement — Bid Validity — Extension Requirements — Prospective Not Retrospective
Extension of bid validity must be requested in writing from all bidders before the expiry of the validity period. The law assumes a prospective but not retrospective extension of bid validity. Once bid validity expires, the procurement process comes to an end and no valid contract can be executed.
Public Procurement — Merits Review — Tribunal Powers — Scope of Inquiry
As a merits review body, the Tribunal's inquiry is not limited to the issues raised by the parties. The Tribunal has jurisdiction to review decisions of a procuring and disposing entity and may frame the case differently from how it has been framed by the parties, standing in the shoes of the original decision maker and reconsidering the facts, law and policy aspects of the original decision.
Public Procurement — Illegality — Contract Validity — Non-Compliance with Statutory Requirements
A court of law cannot sanction that which is illegal. Procurement cannot be valid if the provisions of the law are not complied with. Breach of mandatory provisions goes to the core of the Act and leads to fatality. A contract executed in breach of procurement law is void and must be cancelled.
Public Procurement — Accounting Officer Responsibilities — Overall Responsibility for Procurement Process
The Accounting Officer of a procuring and disposing entity has overall responsibility for the execution of the procurement and disposal process and must ensure that duties are properly and professionally performed in accordance with legal requirements to eliminate corrupt or fraudulent practices.

Legislation cited (21)

Cases cited (14)

  • Makula International v Cardinal Nsubuga (Civil Appeal No. 4 of 1981)
  • Galleria in Africa v UEDCL (Supreme Court Civil Appeal No. 08 of 2017)
  • Roko Construction Ltd v PPDA, National Drug Authority and Seyani Brothers Ltd (Civil Appeal No. 59 of 2017)
  • PPDA v Peace Gloria (Civil Appeal No. 06 of 2016)
  • General Industries (U) Ltd v Non Performing Assets Recovery Trust & Ors (Civil Appeal No. 51 of 2007)
  • Boutique Shazim Ltd v Norattam Bhatia & Anor (Civil Appeal No. 36 of 2007)
  • Old Kampala Students Association v Old Kampala Senior Secondary School & PPDA (Application No. 7 of 2017)
  • Public Procurement and Disposal of Public Assets Authority v Basaar Arua Bus Operators Cooperative Society Limited (Civil Appeal No. 0004 of 2016)
  • Kasokoso Services Limited v Jinja School of Nursing and Midwifery (Application No. 13 of 2021)
  • Abasamia Hwolerane Association Ltd v Jinja City Council (Application No. 12 of 2021)
  • Acacia Place Ltd v PPDA & Electoral Commission (Application No. 10 of 2021)
  • Kazini Fredric v PPDA (Application No. 16 of 2015)
  • Twed Property Development Limited v PPDA (Application No. 9 of 2015)
  • Hoima Taxi/Bus Owners & Drivers Saving & Credit Cooperative Society v PPDA (Application No. 5 of 2014)

Full judgment

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Obon Infrastructure Development J V v Mbarara City and Another (Application No 20 of 2021) 2021 UGPPDPAAT 16 (18 October 2021)
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.