Wakilii

Rexco Limited v Katakwi District Local Government (Application 29 of 2023)

Tribunal · [2023] UGPPDPAAT 29 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of procurement decision following administrative review
Decision
Matter remitted to Respondent for re-evaluation of bids within ten working days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that the Accounting Officer failed to make a proper administrative review decision, merely communicating the committee's findings without applying his own mind. The Applicant had a valid trading license and PPDA registration certificate. While the administrative review committee could consider matters beyond the complaint, it erred by usurping the evaluation committee's powers to declare bids non-compliant. The Applicant's bid was compliant regarding nationality and dumper truck access. The request for consent to unspecified arithmetic corrections was illegal. The notice of best evaluated bidder was not delivered within the prescribed time. Application allowed; procurement remitted for re-evaluation.

Outcome

Matter remitted to Respondent for re-evaluation of bids within ten working days

Facts

Katakwi District Local Government invited bids for construction of a general ward at Aketa HC II Phase 1. Three bidders submitted bids. The contract was awarded to Ange & Cathy Enterprises Ltd at UGX 95,075,000 VAT exclusive. The Notice of Best Evaluated Bidder stated that Rexco Limited's bid failed because it lacked a valid trading license. Rexco applied for administrative review on October 27, 2023, complaining that its trading license was valid at bid submission, that the notice was received five days after display, 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?
  7. What remedies are available to the parties?

Orders

  • The Application is allowed.
  • The Respondent is directed to re-evaluate the bids for the procurement for the construction of a general ward at Aketa Health Centre II in a manner not inconsistent with this decision, the bidding document and the law.
  • The re-evaluation in no. 2 above must be completed within ten (10) working days from the date of this decision.
  • The Respondent shall refund the Applicant's administrative review fees.
  • The Tribunal's suspension order dated November 16, 2023, is vacated.
  • Each party shall bear its own costs.

Rules and key headnotes

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 complaint with reasons and corrective measures. The report of the administrative review committee is advisory only. An Accounting Officer who merely communicates the committee's findings without applying his own mind fails to make a decision within the meaning of the law.
Administrative Review — Jurisdiction Where Accounting Officer Fails to Decide
Where an Accounting Officer fails to make a decision within the meaning of section 89(7) of the Public Procurement and Disposal of Public Assets Act, the Tribunal retains jurisdiction to entertain an application as if filed under section 89(8), which allows an application where the Accounting Officer fails to make a decision within ten days of receipt of a complaint.
Administrative Review — Scope of Investigation
The scope of investigation under regulation 139 of the Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006 is expansive enough to consider all pertinent matters in the impugned procurement, whether raised by the complainant or not. An administrative review committee is entitled to look into compliance with all evaluation criteria.
Administrative Review — Limits on Powers of Accounting Officer
An Accounting Officer and administrative review committee 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 an Accounting Officer finds that the evaluation committee erred, the proper remedy is to set aside the contract award and remit the matter to the evaluation committee for proper re-evaluation.
Public Procurement — Eligibility Criteria — Alternative Requirements
Where a bidding document provides alternative eligibility requirements (such as PPDA registration certificate or trading license plus certificate of incorporation), submission of one alternative satisfies the eligibility criteria and renders the other alternative a surplus requirement. A bidder cannot be disqualified for failing to meet a surplus requirement when the primary alternative has been satisfied.
Public Procurement — Correction of Arithmetic Errors — Requirement for Specificity
A blanket request for consent to correction of arithmetic errors with no specific details on the errors, and purported open consent to unspecified corrections, are illegal under regulation 74 of the Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006 and the bidding document provisions permitting correction of arithmetic errors with bidder consent.
Public Procurement — Notice of Best Evaluated Bidder — Time for Delivery
Regulation 85(5) of the Local Governments (Public Procurement and Disposal of Public Assets) Regulations 2006 requires that a notice of best evaluated bidder shall, at the time it is displayed, be sent to all bidders who participated in the procurement. Delivery of the notice five days after display does not comply with the regulation, though absence of prejudice may affect the remedy.

Legislation cited (15)

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 29 of 2023) 2023 UGPPDPAAT 29 (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.