Wakilii

SMS Construction Limited and Another v Ministry of Justice and Constitutional Affairs (Application No 7 of 2022)

Tribunal · [2022] UGPPDPAAT 7 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for administrative review of procurement decision made directly to the Tribunal under section 89(9) of the Public Procurement and Disposal of Public Assets Act
Decision
Application struck out as time barred; procurement may proceed

Observed later treatment

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Holding

The Tribunal held that the application was competent as the Applicant had demonstrated a belief that the Accounting Officer could not handle the matter impartially, entitling it to apply directly to the Tribunal under section 89(9). However, the application was time barred. The Notice of Best Evaluated Bidder was received on 24 February 2022, and the ten-day limitation period under section 91I(2)(c) expired on 7 March 2022 (extended from 6 March due to it being a Sunday). The application filed on 10 March 2022 was therefore out of time. Statutory time limits are mandatory and the Tribunal has no jurisdiction to extend them. The application was struck out.

Outcome

Application struck out as time barred; procurement may proceed

Facts

The Ministry of Justice and Constitutional Affairs undertook procurement for the construction of JLOS House using open international bidding. The Evaluation Committee recommended Seyani Brothers & Co. (U) Limited as the best evaluated bidder at UGX 256,438,726,974. The Contracts Committee rejected the evaluation report twice, citing procedural irregularities. The Accounting Officer sought advice from the Public Procurement and Disposal of Public Assets Authority, which advised delegation of the Contracts Committee's function. The Accounting Officer delegated the function to a select committee, which approved the evaluation report and awarded the contract. The Notice of Best Evaluated Bidder was issued on 24 February 2022 and delivered electronically to all bidders including the Applicant. The Applicant, an unsuccessful bidder, filed an application directly to the Tribunal on 10 March 2022 challenging the award.

Issues

  1. Whether the instant application made directly to the Tribunal is competent under section 89(9) of the Public Procurement and Disposal of Public Assets Act.
  2. Whether the application is time barred under section 91I(2)(c) of the Public Procurement and Disposal of Public Assets Act.
  3. Whether the Respondent erred in law when it issued the Notice of Best Evaluated Bidder without a decision by the Contracts Committee to award the contract.
  4. Whether the Respondent erred in law by issuing Addendum No. 2 without approval by the Contracts Committee.
  5. Whether the Respondent erred in law when it did not deliver a copy of the Notice of Best Evaluated Bidder to the Applicant.

Orders

  • The Application is struck out.
  • The Tribunal's suspension order dated 11 March 2022 is vacated.
  • The Respondent may continue with the procurement to its logical conclusion.
  • Each party to bear its own costs.

Rules and key headnotes

Administrative Law — Public Procurement — Direct Application to Tribunal — Conflict of Interest and Impartiality
A bidder may apply directly to the Public Procurement and Disposal of Public Assets Appeals Tribunal under section 89(9) where the bidder has a sincere belief, supported by reasonable grounds, that the Accounting Officer has a conflict of interest or that the matter cannot be handled impartially by the procuring entity. The bidder need not prove actual bias but must demonstrate the basis for the belief. Where an Accounting Officer has formed an opinion in support of decisions under challenge and would be required to sit in judgment of his own decisions, a reasonable person would have an apprehension of bias or partiality.
Administrative Law — Procedural Fairness — Bias — Nemo Judex in Sua Causa
Procedural fairness requires that a decision maker should not be biased or prejudiced in a way that precludes fair and genuine consideration of the arguments advanced by the parties. The principle nemo judex in sua causa means that no one should adjudicate in a matter in which he has a conflicting interest. Even though a decision-maker may in fact be scrupulously impartial, the appearance of bias can itself call into question the legitimacy of the decision-making process.
Administrative Law — Public Procurement — Limitation Periods — Computation of Time
Under section 91I(2)(c) of the Public Procurement and Disposal of Public Assets Act as amended, an application made directly to the Tribunal under section 89(9) must be lodged within ten days from the date when the omission or breach is alleged to have taken place. The reference to 'days' means calendar days, not working days. Where the last day of the period falls on a Sunday or public holiday, section 34(1)(b) of the Interpretation Act provides that the period shall include the next following day not being an excluded day.
Statutory Interpretation — Legislative Errors — Power to Correct
Only Parliament has constitutional authority to amend the law. Where a statute contains an alleged error, the mandate to clarify or correct such errors is vested only in the Legislature under Articles 79 and 91 of the Constitution and cannot be exercised by courts or other bodies. It is only Parliament which can revoke, amend, or correct mistakes in any law which has become an Act of Parliament.
Administrative Law — Limitation Periods — Mandatory Nature — Jurisdiction
Time limits set by statutes are matters of substantive law and not mere technicalities and must be strictly complied with. Timelines within procurement statutes are couched in mandatory terms. There is no enabling provision within the Public Procurement and Disposal of Public Assets Act that accords the Tribunal power to enlarge or extend time. Once a party fails to move within the time set by law, the jurisdiction of the Tribunal is extinguished as far as the matter is concerned. A court has no residual or inherent jurisdiction to enlarge a period of time laid down by statute.

Legislation cited (24)

Cases cited (10)

  • Abasamia Hwolerane Association Ltd v Jinja City Council (Application No. 18 of 2021)
  • Dr. Arthur Ahimbisibwe v The Appointments Board of Makerere University Business School (Miscellaneous Cause No. 34 of 2020)
  • Sanlam General Insurance (U) Limited v Uganda National Roads Authority (Application No. 29 of 2021)
  • JV Kadac-Lobaltec v Uganda Prisons Service (Application No. 4 of 2022)
  • Super Taste Ltd v Bank of Uganda (Application No. 33 of 2021)
  • Apa Insurance Uganda Limited v Uganda National Roads Authority (Application No. 2 of 2022)
  • Rock Petroleum (U) Ltd v Uganda Revenue Authority (C.S OS-0009-2009)
  • Uganda Revenue Authority v Uganda Consolidated Properties Ltd (Civil Appeal No. 31 of 2000)
  • Makula International Ltd v Cardinal Nsubuga & Another (Civil Appeal No. 4 of 1981)
  • Sitenda Sebalu v Sam K. Njuba & Another (Election Petition Appeal No. 5 of 2007)

Full judgment

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

SMS Construction Limited and Another v Ministry of Justice and Constitutional Affairs (Application No 7 of 2022) 2022 UGPPDPAAT 7 (29 March 2022)
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.