Wakilii

Semanga Solutions Limited v Uganda National Roads Authority (Application 25 of 2023)

Tribunal · [2023] UGPPDPAAT 27 · 2023 Application Granted — Award Set Aside AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of procurement decision following administrative review dismissal
Decision
Award set aside and matter remitted to UNRA for re-evaluation of all bids within 10 working days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that the omission of the word 'Limited' from Green Power International Limited's name was a non-fatal misnomer. However, the bid was not substantially compliant because the bidder failed to demonstrate the required five years of general experience with activity in at least nine months of each year, and failed to submit required documentation for specific experience. The Tribunal further held that requesting a completion certificate as a clarification was improper because the omission constituted a material deviation that would unfairly affect other bidders' competitive positions. The award was set aside and the matter remitted for re-evaluation.

Outcome

Award set aside and matter remitted to UNRA for re-evaluation of all bids within 10 working days

Facts

UNRA initiated a restricted bidding procurement for installation of street lighting along Entebbe Road - Zana - Mpala Section (19 KM) on July 25, 2023. Six firms submitted bids by August 9, 2023. Green Power International Limited was recommended as the Best Evaluated Bidder at UGX 23,238,276,192. The Applicant's bid was disqualified for having a higher price than the best evaluated bidder. During evaluation, the Evaluation Committee requested clarification from Green Power International regarding a certificate of completion for a contract submitted as specific experience. The Applicant filed for administrative review on October 5, 2023, challenging Green Power International Limited's compliance and the propriety of the clarification request. The Accounting Officer dismissed the complaint on October 13, 2023. The Applicant then filed this application with the Tribunal on October 23, 2023.

Issues

  1. Whether Green Power International Limited is different from Green Power International.
  2. Whether the bid of Green Power International Limited was substantially compliant with the requirements of the bidding document.
  3. Whether the Respondent erred when it requested Green Power International Ltd to submit a copy of a certificate of completion as a clarification.
  4. Whether the Respondent erred when it found that Excel Construction Ltd's bid was responsive to the technical evaluation criteria.

Orders

  • Application allowed.
  • Award of contract to Green Power International Ltd for installation of street lighting along Entebbe Road - Zana - Mpala Section (19 KM) set aside.
  • Respondent directed to re-evaluate the bids in a manner not inconsistent with this decision, the bidding document and the law.
  • Re-evaluation to be completed within 10 working days from the date of this decision.
  • Tribunal's suspension order dated October 23, 2023 vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Public Procurement — Misnomer — Effect on Bidder Identity
The omission of the word 'Limited' from a company's registered name in bidding documents and correspondence is a non-fatal misnomer where all other documentation clearly identifies the bidder and there is no manifest bad faith or intention to mislead.
Public Procurement — Evaluation Criteria — General Experience Requirements
Where bidding documents require experience for at least five years with activity in at least nine months of each year, a bidder who demonstrates experience starting only in October 2018 when the bid submission deadline is August 9, 2023 fails to meet the minimum five-year duration requirement.
Public Procurement — Specific Experience — Required Documentation
A bid is not substantially compliant with specific experience requirements where the bidder fails to submit required documentation including certificates of completion, payment certificates, or reference letters from past clients for contracts relied upon as proof of specific experience.
Public Procurement — Clarification of Bids — Material Deviation
An evaluation committee may only request clarification from a bidder whose bid is substantially compliant and responsive. The failure to submit a completion certificate or reference letter as proof of specific experience constitutes a material deviation that cannot be cured through clarification, as correcting it would unfairly affect the competitive position of other compliant bidders.
Public Procurement — Clarification versus New Documentation
Clarification under section 73 of the Public Procurement and Disposal of Public Assets Act and regulation 10 of the Evaluation Regulations is meant to provide missing details in submitted information or documents, not to introduce new information or documents to cure a material deviation in a bid.
Public Procurement — Commercial Criteria versus Eligibility Documents
Completion certificates and reference letters are commercial criteria, not mere eligibility or historical public documents. Their omission constitutes a material deviation that cannot be waived or clarified after bid submission.
Public Procurement — Failure to Apply Mandatory Criteria — Effect on Evaluation
Failure or omission to apply a mandatory evaluation criterion across all bids vitiates the entire evaluation process and requires remittal for re-evaluation.

Legislation cited (12)

  • Public Procurement and Disposal of Public Assets Act s.52
  • Public Procurement and Disposal of Public Assets Act s.71(3)
  • Public Procurement and Disposal of Public Assets Act s.73
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 reg.10
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 reg.10(2)
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 reg.11
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 reg.11(3)(a)
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 reg.11(4)
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 reg.11(4)(c)
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 reg.17(3)
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 reg.17(6)
  • Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 reg.19

Cases cited (8)

  • Abasamia Hwolerane Association Limited v Jinja City Council (Application No. 12 of 2021)
  • Globe World Engineering (U) Ltd v Jinja City Council (Application No. 11 of 2021)
  • China Aero-Tech International Engineering Corporation (CATIC) v PPDA (Application No. 1 of 2016)
  • Roko Construction Ltd & Roko Construction (Rwanda) Ltd JV v PPDA (Application No. 6 of 2019)
  • Smileplast Ltd v Public Procurement and Disposal of Public Assets Authority & National Agricultural Advisory Services (Application No. 13 of 2020)
  • My Maka Group Limited v Uganda National Bureau of Standards (Application No. 9 of 2021)
  • Transtrac Limited v PPDA & Ministry of Works and Transport (Application No. 10 of 2017)
  • Mbarara City United Bikadde Market Vendors Association Ltd v Mbarara City Council (Application No. 23 of 2023)

Full judgment

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Semanga Solutions Limited v Uganda National Roads Authority (Application 25 of 2023) 2023 UGPPDPAAT 27 (13 November 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.