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Semwo Construction Company v Rukungiri District Local Government (Civil Appeal 68 of 2010)

Court of Appeal · [2015] UGCA 2022 · 2015 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from the High Court's dismissal of an application for prerogative orders of mandamus, prohibition and injunction
Decision
Appeal allowed in part; PPDA decision of 5 February 2010 remains in force; nominal damages of UGX 5,000,000 and one third of costs awarded to the appellant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the PPDA was not functus officio and could further review its procurement decision under Regulation 10(2) of the Local Government Procurement Regulations where a competent authority disagreed. It found the trial judge erred in treating the bid-validity extension as immaterial, since Regulation 49(5) placed a mandatory duty on the respondent to extend the bid validity to allow the appellant's challenge. The court also found the appellant's tax clearance certificate should not have been rejected as invalid. However, because the PPDA's letter of 5 February 2010 remained in force and the appellant had sought mandamus rather than to quash it, the appeal succeeded only in part, with nominal damages of UGX 5,000,000 awarded.

Outcome

Appeal allowed in part; PPDA decision of 5 February 2010 remains in force; nominal damages of UGX 5,000,000 and one third of costs awarded to the appellant

Facts

Rukungiri District Local Government invited bids in August 2008 for the Kagashe Town water supply and sanitation construction scheme. The appellant submitted a bid and the Evaluation Committee recommended award to it, but the respondent's Contracts Committee declined and instead named M/s Sualf Construction Limited as best evaluated bidder at a higher price. The appellant sought administrative review by the CAO, the Administrative Review Committee, and then the PPDA. The PPDA initially upheld the appellant's application on 23 December 2009, recommending award to it. The Contracts Committee disagreed. After a further meeting, the PPDA in a letter of 5 February 2010 agreed with the respondent that the bid validity period had expired unextended under Regulation 49(5) and that all bids were void. The respondent commenced re-tendering. The appellant obtained an interim order but its main application for mandamus, prohibition and injunction was dismissed by the High Court, prompting this appeal.

Issues

  1. Whether the PPDA could review its decision made under Regulation 140(7) of the Local Government (Public Procurement and Disposal of Public Assets) Regulations, or was functus officio.
  2. Whether the PPDA reversed or affirmed its earlier decision awarding the contract to the appellant.
  3. Whether the trial judge erred in upholding the PPDA finding that the bid validity period had expired requiring re-tendering.
  4. Whether the PPDA was a necessary party whose omission was fatal to the application.
  5. Whether the case was proper for granting mandamus and other reliefs sought.
  6. Whether Sualf was the best evaluated bidder and whether the appellant's tax clearance certificate was invalid.

Orders

  • Appeal succeeds in part.
  • The decision of the PPDA of 5th February 2010 remains in force as it has not been set aside.
  • Nominal damages of UGX 5,000,000 awarded to the appellant.
  • Appellant awarded one third of the costs here and in the court below.

Rules and key headnotes

Administrative Law — Functus Officio — Reopening of Procurement Review Decisions
The functus officio doctrine is not absolute; an administrative body such as the PPDA may reopen and further review a procurement decision under Regulation 10(2) where a competent authority disagrees with its findings, and is not rendered functus officio by its initial determination.
Public Procurement — Competent Authority — Meaning under Regulation 4 and 9(2)
A procuring and disposing authority is a competent authority within the meaning of Regulation 4 and Regulation 9(2) of the Local Government Procurement Regulations, and may therefore lawfully disagree with a PPDA decision and trigger a resolution meeting under Regulation 10(2).
Public Procurement — Bid Validity Period — Duty to Extend under Regulation 49(5)
Where a procurement challenge is likely to run close to the expiry of a bid validity period, the procuring entity bears a mandatory obligation under Regulation 49(5) to extend the bid validity to allow the challenge to be determined, and cannot rely on its own failure to extend to declare bids void.
Public Procurement — Tax Clearance Certificate — Substance over Form
Where a tax clearance certificate is signed and stamped and its genuineness is confirmed by the issuing authority, it is irrational to reject the bid as non-responsive solely for the absence of an embossed official seal.
Judicial Review — Mandamus — Requirement to First Quash Impugned Decision
Mandamus is neither a writ of course nor of right and will not issue to enforce an earlier decision that has been overtaken by a later valid decision; the applicant must first move to quash the impugned decision rather than seek to compel implementation of the superseded one.

Legislation cited (10)

  • Local Government (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.4
  • Local Government (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.5(1)
  • Local Government (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.9(2)
  • Local Government (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.10(1)
  • Local Government (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.10(2)
  • Local Government (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.49(3)
  • Local Government (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.49(5)
  • Local Government (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.80(1)(2)
  • Local Government (Public Procurement and Disposal of Public Assets) Regulations 2006 reg.140
  • Judicature Act (Judicial Review Rules)

Cases cited (4)

  • Retail Motor Industry Organisation v Minister of Water & Environmental Affairs (74517?) [2013] ZASCA 70
  • Chopra v Canada (Attorney General), 2013 FC 644
  • R. v. Dunsheath, ex parte Meredith, [1950] 2 All E.R. 741 at p. 743
  • Choteylar v State of Uttar Pradesh (1951), 38 A.I.R. Al.228

Full judgment

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Semwo Construction Company v Rukungiri District Local Government (Civil Appeal 68 of 2010) [2015] UGCA 2022 (21 September 2015)
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.