Wakilii

Samanga ELComplus JV v Uganda Electricity Distribution Company Limited (Application No 17 of 2021)

Tribunal · [2021] UGPPDPAAT 13 · 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 in a public procurement tender process, following a prior Tribunal order for re-evaluation
Decision
Application dismissed; procurement process to continue; suspension order vacated

Observed later treatment

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Holding

The Tribunal held that the Accounting Officer erred in dismissing the application for non-payment of administrative review fees without first guiding the applicant on payment modalities, as required by law and Authority circulars. However, the Tribunal upheld the Entity's finding that the applicant was non-responsive to the due diligence process, as none of the applicant's six project references responded to verification letters, and the evaluation committee properly exercised its discretion to reject virtual inspections and waive physical visits due to COVID-19 restrictions. The application was dismissed and the procurement process allowed to continue.

Outcome

Application dismissed; procurement process to continue; suspension order vacated

Facts

UEDCL initiated a tender for design, supply, installation and commissioning of a remote power monitoring and control system. Seven bids were received. Following an earlier Tribunal decision in Application No. 4 of 2021, UEDCL conducted a re-evaluation including due diligence on bidders' project references. The evaluation committee sent verification letters to all references provided by the three technically qualified bidders. None of the six references provided by Samanga Elcomplus JV responded to the verification letters. The committee also planned physical site visits but waived them due to COVID-19 travel restrictions, rejecting virtual inspections as insufficient for authentication. The committee found Samanga Elcomplus JV non-responsive and recommended award to NR-Orion JV. Samanga Elcomplus JV applied for administrative review to the Accounting Officer, who dismissed the application for non-payment of the prescribed fee. The applicant then brought this application to the Tribunal.

Issues

  1. Whether the Accounting Officer of the Respondent erred in law and fact when he dismissed the Applicant's complaint for non-payment of fees.
  2. Whether the decision by the Respondent that the Applicant was non-responsive to the due-diligence process was proper.

Orders

  • Application dismissed.
  • Respondent may continue with the procurement to its logical conclusion.
  • Tribunal's suspension order dated 16 September 2021 vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Administrative Review — Payment of Fees — Duty of Accounting Officer to Guide Applicant
Upon receipt of a complaint for administrative review, the Accounting Officer is duty bound to advise the applicant on the modalities for payment of administrative review fees before dismissing the application for non-payment.
Administrative Review — Late Payment of Fees — Not Necessarily Fatal
Late payment of filing fees is not necessarily fatal, and even actual non-payment of fees is not fatal so long as the proper fees can be accessed and paid.
Public Procurement — Evaluation Criteria — Prohibition on Amendment During Evaluation
An evaluation committee shall not, during an evaluation, make an amendment or addition to the evaluation criteria stated in the bidding document, and shall not use any other criteria other than the criteria stated in the bidding document.
Public Procurement — Due Diligence — Scope and Purpose
A procuring and disposing entity may at any time during a procurement process carry out a due diligence test on a bidder or a bid, covering any area of operation or any area of the bid that the entity determines requires verification or checking in exercising due care in the procurement process.
Public Procurement — Due Diligence — Evaluation Committee Discretion
The evaluation committee has wide latitude in the exercise of their discretion in conducting due diligence, subject to the law and the evaluation criteria stated in the bidding document, including the discretion to reject virtual system demonstrations and waive physical inspections where circumstances warrant.
Evidence — Electronic Communications — Burden of Proof
An email communication is a valid data message, and a person seeking to introduce a data message or electronic record in legal proceedings has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be.

Legislation cited (8)

Cases cited (3)

  • Obon Infrastructure Development JV v PPDA and Mbarara City (Application No. 5 of 2021)
  • Samanga Elcomplus JV v PPDA and Uganda Electricity Distribution Company Limited (Application No. 4 of 2021)
  • Lawrence Muwanga v Stephen Kyeyune (Supreme Court Civil Appeal No. 12 of 2001)

Full judgment

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

Samanga ELComplus JV v Uganda Electricity Distribution Company Limited (Application No 17 of 2021) 2021 UGPPDPAAT 13 (4 October 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.