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Quality Inspection Services INC Japan v Uganda National Bureau of Standards and Others (18 of 2023 Application 15 of 2023)

Tribunal · [2023] UGPPDPAAT 17 · 2023 Application Partly Allowed; Procurement Cancelled AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Three consolidated applications for review of procurement decisions by Uganda National Bureau of Standards concerning provision of pre-export verification services for used motor vehicles
Decision
Procurement cancelled; entity 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 procurement by UNBS for provision of pre-export verification services was fundamentally flawed and must be cancelled. The Accounting Officer erred by relying on PPDA guidance obtained irregularly after the award decision had been made, and by issuing a second best evaluated bidder notice without authority. UNBS illegally departed from the technical compliance evaluation methodology stated in the bidding document by applying a quality and cost based method with a point system applicable only to consultancy services. The bids of both EAA and ATJ were non-responsive for failure to prove physical presence and ownership of facilities in UAE as required. Application No. 17 was struck out as incompetent.

Outcome

Procurement cancelled; entity may re-tender if it wishes

Facts

UNBS initiated a procurement for provision of pre-export verification services for used motor vehicles using open international bidding. On June 27, 2023, UNBS issued a best evaluated bidder notice naming Quality Inspection Services Inc. Japan (QISJ) as the successful bidder. The same day, the Contracts Committee Chairperson wrote to PPDA requesting guidance due to alleged disagreements. PPDA advised on July 3, 2023 that both QISJ and EAA should be awarded contracts to avoid monopoly. On July 5, 2023, EAA filed an administrative review complaint. On July 14, 2023, the Accounting Officer issued a new best evaluated bidder notice naming both QISJ and EAA as successful bidders. QISJ then filed Application No. 15 directly with the Tribunal on July 18, 2023. UNBS responded conceding the July 14 notice was issued in error. EAA filed Application No. 17 challenging UNBS's response. Auto Terminal Japan (ATJ), another unsuccessful bidder, filed Application No. 18 after its administrative review complaint was dismissed. The three applications were consolidated.

Issues

  1. Whether Application No. 15 of 2023 is competently before the Tribunal?
  2. Whether Application No. 17 of 2023 is competently before the Tribunal?
  3. Whether a judgement on admission should be entered against UNBS in Application No. 15 of 2023?
  4. Whether Mr. Nangalama Daniel Richard Makayi had authority to make the decision in the administrative review complaint filed by ATJ?
  5. Whether the Accounting Officer of UNBS erred in law and fact when he withdrew the Notice of Best Evaluated Bidder that was published on the EGP platform on June 27, 2023 and issued a new Notice of Best Evaluated Bidder on July 14, 2023?
  6. Whether QISJ and EAA had a conflict of interest in the impugned procurement?
  7. Whether UNBS departed from the Evaluation Methodology and Criteria prescribed in the bidding document while evaluating bids in the impugned procurement?
  8. Whether the bid of EAA was responsive to the requirements of the bidding document?
  9. Whether the bid of ATJ was responsive to the requirements of the bidding document?
  10. What remedies are available to the parties?

Orders

  • Application No. 17 of 2023 is struck out as incompetent.
  • Application No. 15 is allowed in part.
  • Application No. 18 is allowed in part.
  • The administrative review decision of the Accounting Officer of UNBS dated July 14, 2023, is set aside.
  • The procurement by UNBS for Provision of Pre-Export Verification of Conformity to Standards Service Providers for Used Motor Vehicles under Procurement Reference No. UNBS/NCONS/2022-2023 is cancelled.
  • The Entity may re-tender the procurement if it so wishes.
  • The Tribunal's suspension orders dated July 18, 2023 and July 31, 2023 are vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Public Procurement — Direct Application to Tribunal — Statutory Notice Requirement
Failure to serve statutory notice on the Accounting Officer prior to filing a direct application to the Tribunal under section 91I of the Public Procurement and Disposal of Public Assets Act does not vitiate the proceedings or the jurisdiction of the Tribunal, though it may be a relevant factor in deciding costs.
Public Procurement — Accounting Officer's Duty — Independent Investigation
An Accounting Officer is statutorily bound to independently investigate complaints by bidders and cannot discharge this duty by merely rubber-stamping guidance from the Public Procurement and Disposal of Public Assets Authority without conducting an independent investigation.
Public Procurement — Contracts Committee — Functus Officio
Once a Contracts Committee has exercised its duty to adjudicate recommendations from the Procurement and Disposal Unit and made an award decision, it becomes functus officio and cannot seek guidance from the Authority on the basis of disagreements that arose after the award decision was made and published.
Public Procurement — Evaluation Methodology — Departure from Bidding Document
No evaluation criteria other than those stated in the bidding documents shall be taken into account during evaluation. An evaluation committee shall not make amendments to or use any criteria other than those stated in the bidding document. The use of an evaluation methodology not specified in the bidding document is illegal and contrary to the principles of transparency, accountability and fairness.
Public Procurement — Non-Consultancy Services — Evaluation Method
Bids for procurement of supplies, works and non-consultancy services shall be evaluated using the technical compliance evaluation method. The merit point system is applicable only to procurement of consultancy services. It is illegal to apply a point system evaluation methodology to non-consultancy services without clearance from the Authority to deviate from the standard bidding document.
Public Procurement — Bid Responsiveness — Joint Ventures
The determination of a bid's compliance and responsiveness is based on the contents of the bid itself. A bidder cannot rely on documents of another separate and distinct legal entity as its own documentation, even if the shareholders are related, unless the entities are bidding as a joint venture, consortium or association in compliance with the bidding document requirements.
Public Procurement — Accounting Officer — Corrective Measures
The corrective measures an Accounting Officer may take under section 89(7) of the Public Procurement and Disposal of Public Assets Act cannot include usurping the powers of the Contracts Committee or other bodies in the procurement and disposal cycle. Only the Contracts Committee can make award decisions. If an Accounting Officer finds merit in a complaint about evaluation, the proper remedy is to order a re-evaluation.

Legislation cited (55)

Cases cited (13)

  • Mbarara City and MBJ Technologies v Obon Infrastructure Development JV (Civil Appeal No. 45 of 2021)
  • Galleria in Africa Ltd v Uganda Electricity Distribution Company Ltd, Civil Appeal No. of 2017
  • Kampala Capital City Authority v Kabandize and 20 Others (Supreme Court Civil Appeal No. 13 of 2014)
  • APA Insurance Uganda Ltd v Uganda National Roads Authority (Application No. 2 of 2022)
  • Elite Chemicals Ltd v Uganda Coffee Development Authority (Application No. 7 of 2021)
  • Abasamia Hwolerane Association Ltd v Jinja City Council (Application No. 18 of 2021)
  • SMS Construction Limited and Another v Ministry of Justice and Constitutional Affairs (Application No. 7 of 2022)
  • My Maka Group v Uganda National Bureau of Standards (Application No. 9 of 2021)
  • Kasokoso Services Limited v Jinja School of Nursing and Midwifery (Application No. 13 of 2021)
  • Arua Municipal Council v Arua United Transporters' SACCO (High Court at Arua Civil Appeal No. 25 of 2017)
  • Rhema Engineering Company Limited v Arua City (Application No. 13 of 2023)
  • Abasamia Hwolerane Association Ltd v Jinja City Council (Application No. 11 of 2021)
  • Jacob Mutabazi v The Seventh Day Adventist Church (Court of Appeal Civil Appeal No. 088 of 2011)

Full judgment

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

Quality Inspection Services INC Japan v Uganda National Bureau of Standards and Others (18 of 2023 Application 15 of 2023) 2023 UGPPDPAAT 17 (8 August 2023)
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