Wakilii

Rexco Limited v Katakwi District Local Government (Application 28 of 2023)

Tribunal · [2023] UGPPDPAAT 30 · 2023 Application Granted — Matter Remitted 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 following unsuccessful administrative review
Decision
Matter remitted to Respondent for re-evaluation of bids within ten working days; Applicant's administrative review fees to be refunded

Observed later treatment

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Holding

The Tribunal held that the Accounting Officer failed to make a proper administrative review decision by merely communicating the administrative review committee's findings without applying his own mind. The Applicant's bid was compliant regarding the trading license and access to equipment. The Accounting Officer erred by adopting findings that the bid was non-compliant rather than remitting the matter to the evaluation committee. The request for consent to unspecified arithmetic corrections was illegal. The procurement was remitted for re-evaluation.

Outcome

Matter remitted to Respondent for re-evaluation of bids within ten working days; Applicant's administrative review fees to be refunded

Facts

Katakwi District Local Government invited bids for construction of a staff house at Koritok HC II. Seven bidders submitted bids. The contract was awarded to Jererwe Construction Suppliers (U) Ltd. The Notice of Best Evaluated Bidder stated that Rexco Limited's bid failed because the bidder did not have a valid trading license. Rexco applied for administrative review on October 27, 2023, complaining that its trading license was valid, that the notice was received late, and that the best evaluated bidder had been asked to consent to unspecified arithmetic errors. The Administrative Review Committee found merit in the first ground but introduced new reasons for rejecting Rexco's bid: failure to declare nationality and an expired lease agreement for a dumper truck. The Accounting Officer communicated the committee's findings on November 6, 2023. Rexco then filed this application with the Tribunal on November 16, 2023.

Issues

  1. Whether the Respondent's Accounting Officer made an administrative review decision
  2. Whether the Respondent erred when it found that the Applicant did not have a valid Trading License
  3. Whether the Respondent erred in law when it introduced new reasons for failure of the Applicant's bid in the administrative review decision
  4. Whether the Applicant's bid was compliant with respect to nationality and access to a dumper truck
  5. Whether the Respondent erred when it asked the bidders to consent to correction of unspecified arithmetic errors during evaluation
  6. Whether the Respondent failed to communicate the notice of best evaluated bidder to the Applicant within the prescribed time

Orders

  • Application allowed.
  • Respondent directed to re-evaluate the bids for the construction of a staff house at Koritok Health Centre II in a manner not inconsistent with this decision, the bidding document and the law.
  • Re-evaluation must be completed within ten (10) working days from the date of this decision.
  • Respondent shall refund the Applicant's administrative review fees.
  • Tribunal's suspension order dated November 16, 2023, is vacated.
  • Each party shall bear its own costs.

Rules and key headnotes

Administrative Law — Public Procurement — Administrative Review — Duty of Accounting Officer to Make Decision
Under section 89(7) of the Public Procurement and Disposal of Public Assets Act and regulation 139 of the Local Governments Regulations 2006, the Accounting Officer must make a decision on a procurement complaint with reasons and corrective measures. The report of the administrative review committee is advisory only. Where the Accounting Officer merely communicates the committee's findings without applying his own mind, there is no valid administrative review decision.
Administrative Law — Public Procurement — Jurisdiction of Tribunal — Failure to Make Decision
Where an Accounting Officer fails to make a decision on an administrative review complaint, the Tribunal has jurisdiction to entertain an application under section 89(8) of the Public Procurement and Disposal of Public Assets Act as if the Accounting Officer failed to make a decision within ten days of receipt of the complaint.
Administrative Law — Public Procurement — Eligibility Criteria — Alternative Requirements
Where bidding documents provide alternative eligibility requirements (PPDA registration certificate or trading license plus certificate of incorporation), submission of one alternative satisfies the eligibility criteria and the other documents become surplus requirements. A bidder holding a valid PPDA Register of Providers Certificate need not also submit a trading license.
Administrative Law — Public Procurement — Administrative Review — Scope of Investigation — Limits on Decision-Making Power
While regulation 139 of the Local Governments Regulations 2006 permits an administrative review committee to consider all pertinent matters in a procurement whether raised by the complainant or not, the committee and Accounting Officer may not usurp the powers of the evaluation committee under sections 37 and 38 of the Public Procurement and Disposal of Public Assets Act. The declaration that a bid is compliant or non-compliant is the preserve of the evaluation committee. Where the Accounting Officer finds the evaluation committee erred, the proper remedy is to set aside the contract award and remit the matter to the evaluation committee for re-evaluation, not to make a final determination of compliance.
Administrative Law — Public Procurement — Evaluation — Correction of Arithmetic Errors — Consent Requirements
Regulation 74 of the Local Governments Regulations 2006 permits an evaluation committee to request clarification from a bidder for correction of arithmetic errors. However, a blanket request to multiple bidders for consent to correction of unspecified arithmetic errors, without stating the specific errors for each bidder or the effect of corrections on bid prices, is illegal. Open consent to unspecified corrections is similarly illegal.
Administrative Law — Public Procurement — Notice of Best Evaluated Bidder — Time for Communication
Regulation 85(1) and (5) of the Local Governments Regulations 2006 require a procuring entity to display a notice of best evaluated bidder within five days of the contracts committee decision and to send the notice to all bidders at the time of display. Where a bidding document provides for five working days instead of five days, the regulation takes precedence. Failure to deliver the notice immediately upon display breaches the regulations, though no prejudice results if the complainant files within the prescribed period.

Legislation cited (16)

Cases cited (1)

  • Abasamia Hwolerane Association Ltd v Jinja City Council (Application No. 12 of 2021)

Full judgment

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

Rexco Limited v Katakwi District Local Government (Application 28 of 2023) 2023 UGPPDPAAT 30 (7 December 2023)
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.