Wakilii

Roko Construction Limited V Public Procurement And Disposal of Public Assets Authority & Others (CIVIL APPEAL NO. 59 OF 2017)

High Court · [2018] UGHCCD 137 · 2018 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of the Public Procurement and Disposal of Public Assets Appeals Tribunal (PPDA Tribunal Application No. 4 of 2017)
Decision
Illegal contract set aside; contract awarded to the Appellant as the successful bidder.

Observed later treatment

Treatment recorded in citing cases followed in 1 Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Good law Followed in 1 case and applied in 0 cases, with no adverse treatment recorded. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

Held that where a public procurement contract is awarded in material deviation from the solicitation document evaluation criteria, and the contract is signed during the prohibited administrative review period contrary to section 90(7) of the PPDA Act, the contract is a nullity and must be set aside. An illegal procurement process cannot be sustained on technical grounds. Where the true best bidder met all requirements but was overlooked in favour of a non-compliant bidder, the contract must be awarded to the proper party without need for fresh tendering. Appeal allowed.

Outcome

Illegal contract set aside; contract awarded to the Appellant as the successful bidder.

Facts

National Drug Authority (NDA) invited tenders for construction of NDA Tower Phase One Block A and basement for Phase 2 Block B. The Appellant and six other bidders submitted bids. On 23 January 2017, the second Respondent was named best evaluated bidder. The Appellant sought administrative review, which NDA rejected on 6 February 2017. The first Respondent (PPDA Authority) refused review on 21 March 2017. On 29 March 2017, NDA entered into a contract with the second Respondent. The Appellant appealed to the PPDA Tribunal on 3 April 2017. On 7 June 2017, the Tribunal set aside the first Respondent's decision and found that the Evaluation Committee deviated from evaluation criteria; that the second Respondent did not meet the specific experience requirement of three successfully completed similar buildings; and that the contract was signed during the administrative review period contrary to section 90(7). However, the Tribunal did not set aside the procurement process or the contract. The Appellant appealed to the High Court.

Issues

  1. Whether the Tribunal erred in law and fact when it did not set aside the procurement process and contract awarded to the second Respondent despite finding material deviations from evaluation criteria.
  2. Whether, having found that the contract was signed during the administrative review period contrary to section 90(7) of the PPDA Act, the Tribunal erred when it failed to set aside the contract.
  3. Whether the appeal was competent notwithstanding preliminary objections relating to filing time and form of the memorandum of appeal.
  4. Whether the Tribunal proceedings were a nullity for failure to hear the second Respondent.

Orders

  • Appeal allowed.
  • The illegal contract awarded to the second Respondent by NDA declared a nullity and cancelled/set aside.
  • Tribunal decision of 7th June 2017 varied to halt implementation of the illegal contract between NDA and the second Respondent.
  • Appellant declared the successful and best bidder and the contract awarded to it.
  • No fresh bidding required as it would be wasteful of public funds.
  • Costs awarded to the Appellant, to be paid by NDA.

Rules and key headnotes

Public Procurement — Nullity of Contract — Deviations from Evaluation Criteria
Awarding a contract through a procurement process that materially deviates from the solicitation bid document evaluation criteria is an illegality which renders the contract a nullity, requiring no court order to set it aside though a declaration may be convenient.
Public Procurement — Administrative Review — Prohibition on Contracting During Review Period
Section 90(7) of the Public Procurement and Disposal of Public Assets Act is mandatory and prohibits an accounting officer from entering into a contract during administrative review or before the Authority or Tribunal makes a final decision. Non-observance is a fatality and any contract entered in contravention is a nullity.
Public Procurement — PPDA Tribunal Jurisdiction — Application of PPDA Act Provisions
The PPDA Tribunal, being a creature of the PPDA Act, may properly apply any section of that Act including section 90(7). The administrative review process under section 90(7) applies throughout the appeal process including proceedings before the Tribunal; it does not stop at the PPDA Authority level.
Public Procurement — Statutory Interpretation — Mandatory vs Directory Provisions
The provisions of the PPDA Act regulating procurement practices must be adhered to strictly to the letter. They are mandatory, not merely directory. Non-compliance makes the proceedings fatal, as the objective of achieving fairness, transparency and value for money in procurement cannot be met without strict compliance.
Illegality — Court's Duty to Address Illegality
A court of law cannot sanction that which is illegal. Illegality once brought to the attention of the court overrides all questions of pleading. No court ought to enforce an illegal contract or allow itself to be made an instrument of enforcing obligations arising from an illegal contract or transaction, and no provision in regulations can bar a court from addressing an illegality under the parent statute.
Appeals — Technicalities vs Substantive Justice
Where an appeal raises substantive issues of illegality, to use filing time restrictions to dismiss the appeal on a preliminary objection without addressing the substantive merits would amount to a miscarriage of justice and defeat substantive justice contrary to article 126(2)(e) of the Constitution.
Public Procurement — Award of Contract — Best Bidder Meets All Requirements
Where an illegally awarded contract is set aside and the record shows a bidder who met all requirements and was rated as the best or properly qualifies as such, the contract must be awarded to that bidder without the need for a fresh procurement process, as re-tendering would be wasteful of public funds.

Legislation cited (25)

  • Public Procurement and Disposal of Public Assets Act Act 1 of 2003 s.5
  • Public Procurement and Disposal of Public Assets Act Act 1 of 2003 s.90
  • Public Procurement and Disposal of Public Assets Act Act 1 of 2003 s.90(7)
  • Public Procurement and Disposal of Public Assets Act Act 1 of 2003 s.90(7)(a)
  • Public Procurement and Disposal of Public Assets Act Act 1 of 2003 s.90(7)(b)
  • Public Procurement and Disposal of Public Assets Act Act 1 of 2003 s.91(4)
  • Public Procurement and Disposal of Public Assets Act Act 1 of 2003 s.91(5)
  • Public Procurement and Disposal of Public Assets Act Act 1 of 2003 s.91B
  • Public Procurement and Disposal of Public Assets Act Act 1 of 2003 s.91I(1)
  • Public Procurement and Disposal of Public Assets Act Act 1 of 2003 s.91I(5)
  • Public Procurement and Disposal of Public Assets Act Act 1 of 2003 s.91I(5)(a)
  • Public Procurement and Disposal of Public Assets Act Act 1 of 2003 s.91I(5)(c)
  • Public Procurement and Disposal of Public Assets Act Act 1 of 2003 s.91I(7)
  • Public Procurement and Disposal of Public Assets Act Act 1 of 2003 s.91N
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 S.I 9 of 2016 reg.19(4)
  • Public Procurement and Disposal of Public Assets (Administrative Review) Regulations 2014 reg.2
  • Public Procurement and Disposal of Public Assets (Tribunal) (Procedure) Regulations 2016 reg.8(1)
  • Civil Procedure Act s.79(1)(a)
  • Civil Procedure Rules Order 43 rule 1
  • Civil Procedure Rules Order 43 rule 17
  • Civil Procedure Act s.98
  • Judicature Act s.33
  • Constitution of Uganda article 28
  • Constitution of Uganda article 44
  • Constitution of Uganda article 126(2)(e)

Cases cited (5)

  • Father Nanensio Begumisa and 3 Others v Eric Tiberaga (Supreme Court Civil Appeal No. 17 of 2004)
  • FK Zabwe v Orient Bank and Others (Supreme Court Civil Appeal No. 4 of 2006)
  • Clear Channel Independent Uganda Ltd v Public Procurement and Disposal of Public Assets Authority (Miscellaneous Application No. 380 of 2008)
  • Galleria in Africa Ltd v Uganda Electricity Distribution Company Ltd (Supreme Court Civil Appeal No. 8 of 2017)
  • Makula International Ltd v Cardinal Nsubuga (Civil Appeal No. 4 of 1981)

Cases citing this judgment (2)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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Roko Construction Limited V Public Procurement And Disposal of Public Assets Authority & Others (CIVIL APPEAL NO. 59 OF 2017) [2018] UGHCCD 137 (13 March 2018)
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.