Wakilii

Saba Engineering Private Limited Company v Hersun Consult Limited (Application No 28 of 2021)

Tribunal · [2021] UGPPDPAAT 14 · 2021 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of the Accounting Officer's decision dismissing administrative review complaint regarding procurement evaluation and disqualification
Decision
Application dismissed; procurement process may continue to conclusion

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that the Applicant's failure to include UGX 200,000,000 for training of employer's staff in reimbursable items was not an arithmetic error but an omission that should have been cured by automatic price adjustment for comparison purposes under Regulation 44 of the Consultancy Services Regulations and ITC 31.3. The Respondent erred in disqualifying the bid rather than adjusting the price. However, even with the adjustment, the Applicant's bid would remain higher than the best-evaluated bidder's, so no remedy was granted.

Outcome

Application dismissed; procurement process may continue to conclusion

Facts

The Respondent initiated procurement for consultancy services for road rehabilitation. The Applicant submitted a financial proposal of UGX 5,699,872,000 but omitted a required reimbursable item of UGX 200,000,000 for training of employer's staff specified in the RFP. The evaluation committee sought clarification and attempted to correct what it termed an arithmetic error by revising the total price to UGX 5,935,872,000. The Applicant responded that the training provision was included in its unit rate build-up and declined to accept the price revision. The evaluation committee disqualified the Applicant's bid for refusing to correct the alleged error and recommended award to Stadia Engineering Work Plc at UGX 4,820,388,500. The Applicant sought administrative review, which was rejected, then applied to the Tribunal.

Issues

  1. Whether the Applicant's bid had an arithmetic error?
  2. Whether the non-inclusion of a specific item of UGX 200,000,000 in the Applicant's financial proposal was an omission which required clarification?
  3. Whether the Respondent was right to disqualify the Applicant's bid?
  4. Whether it was procedurally proper for the Respondent to continue with the evaluation process yet its impartiality had been called into question?
  5. What is the role of the Accounting Officer when confronted with a whistleblower's report?
  6. What remedies are available to the Parties?

Orders

  • Application dismissed.
  • Tribunal's suspension order dated 18 November 2021 vacated.
  • Respondent may continue with the procurement process to its logical conclusion.
  • Each party to bear its own costs.

Rules and key headnotes

Public Procurement — Bid Evaluation — Arithmetic Errors versus Omissions
Non-inclusion of a specific required item in a financial proposal does not constitute an arithmetic error where the breakdown and addition of submitted fees and reimbursables is accurate; an arithmetic error refers to computational mistakes in calculation, not the omission of required items from the bid price.
Public Procurement — Clarification of Proposals — Limits on Permissible Clarification
Clarification of proposals under procurement regulations is not meant to introduce new information or documents in order to cure a material deviation in the bid; where an omission relates to an aspect of the price of the proposal, the procuring entity cannot proceed under clarification provisions to request documentation to rectify the omission.
Public Procurement — Non-Conformities and Omissions — Automatic Price Adjustment
Where a proposal is substantially compliant and responsive, the procuring entity shall rectify non-material omissions by adjusting the proposal price for comparison purposes only to reflect the price of the missing item or component, in accordance with Regulation 44 of the Consultancy Services Regulations 2014 and the Instructions to Consultants.
Public Procurement — Disqualification of Bids — Proper Grounds
A procuring entity errs when it disqualifies a bid for non-inclusion of a required item that constitutes a non-material omission; the proper course is to cure the omission by automatic adjustment for non-conformities rather than disqualification.
PPDA Appeals Tribunal — Merits Review — Powers and Scope
Merits review involves standing in the shoes of the original decision maker and reconsidering the facts, law and policy aspects of the original decision; the Tribunal is authorised to exercise all powers and discretions conferred on the person who made the decision under review, based on material that was before and that which ought to have been before that person.
Public Procurement — Remedies — No Remedy Where Outcome Unchanged
Where the Tribunal's findings do not change the outcome of the procurement process because the applicant's adjusted bid price would still be higher than the best-evaluated bidder's price, the applicant is not entitled to any remedy.

Legislation cited (14)

  • Public Procurement and Disposal of Public Assets Act s.71(3)
  • Public Procurement and Disposal of Public Assets Act s.89(2)
  • Public Procurement and Disposal of Public Assets Act s.91
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 reg.7(1)
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 reg.14
  • Public Procurement and Disposal of Public Assets (Consultancy Services) Regulations 2014 reg.42(1)
  • Public Procurement and Disposal of Public Assets (Consultancy Services) Regulations 2014 reg.44
  • Public Procurement and Disposal of Public Assets (Consultancy Services) Regulations 2014 reg.55(3)(c)
  • Public Procurement and Disposal of Public Assets (Consultancy Services) Regulations 2014 reg.55(3)(e)
  • Public Procurement and Disposal of Public Assets (Consultancy Services) Regulations 2014 reg.55(4)
  • Public Procurement and Disposal of Public Assets (Consultancy Services) Regulations 2014 reg.56(2)
  • Public Procurement and Disposal of Public Assets (Consultancy Services) Regulations 2014 reg.57
  • Public Procurement and Disposal of Public Assets (Consultancy Services) Regulations 2014 reg.57(1)
  • Public Procurement and Disposal of Public Assets (Consultancy Services) Regulations 2014 reg.57(2)

Cases cited (2)

  • Smileplast Ltd v Public Procurement and Disposal of Public Assets Authority & National Agricultural Advisory Services (Application No. 13 of 2020)
  • Public Procurement and Disposal of Public Assets Authority v Basaar Arua Bus Operators Cooperative Society Limited (Civil Appeal No. 0004 of 2016)

Full judgment

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Saba Engineering Private Limited Company v Hersun Consult Limited (Application No 28 of 2021) 2021 UGPPDPAAT 14 (8 December 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.