Wakilii

Technology Associates Limited in Consortium with Comviva Technology Limited v Post Bank Uganda Limited (Application No 6 of 2022)

Tribunal · [2022] UGPPDPAAT 6 · 2022 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for administrative review of procurement decision following dismissal of complaint by Accounting Officer
Decision
Application dismissed; procurement process may proceed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal dismissed the application challenging the procurement process for an e-wallet solution. While the Accounting Officer breached statutory timelines by communicating his decision one day late, the Tribunal found the application was filed within time and had jurisdiction. On the merits, the Tribunal held that the post-qualification evaluation was properly conducted according to the criteria stated in the bidding document, and the applicant could not challenge the bidding document criteria after bid submission, having failed to appeal an earlier adverse decision on the same grounds.

Outcome

Application dismissed; procurement process may proceed

Facts

Post Bank Uganda Limited issued a call for bids for supply, installation and commissioning of an e-wallet solution on 30 March 2021. Eight bidders submitted proposals by 17 May 2021. On 5 August 2021, the Respondent published a notice that the Applicant had been eliminated at the technical stage for scoring below the minimum 75 points. The Applicant filed an administrative review on 16 August 2021, which was dismissed on 27 August 2021. The Applicant did not appeal. On 1 February 2022, the Respondent published a Best Evaluated Bidder Notice naming Sybyl Limited. The Applicant filed a second administrative review on 11 February 2022, challenging Sybyl Limited's qualifications. The Accounting Officer's decision was made on 18 February 2022 but communicated on 22 February 2022. The Applicant then applied to the Tribunal on 3 March 2022.

Issues

  1. Whether the Accounting Officer erred in law when he did not communicate the administrative review decision dated 18th February 2022 within the prescribed statutory timeframe?
  2. Whether the Respondent Entity erred in law when it did not disqualify the Best Evaluated Bidder's bid at the post qualification stage of evaluation on account that the Best Evaluated Bidder does not have any experience in the supply, installation and commissioning of an e-wallet solution?
  3. Whether the Respondent Entity erred in law by not providing for any evaluation criteria in the bidding document for the experience and qualifications of the key personnel and by not appropriately evaluating the key personnel of the Best Evaluated Bidder?
  4. Whether the Respondent Entity erred in law by making unlawful modifications to the standard bidding document issued by PPDA for the procurement of non-consultancy services?
  5. What remedies are available to the Parties?

Orders

  • Application dismissed.
  • Procurement may proceed to its logical conclusion.
  • Tribunal's suspension order dated 4th March 2022 vacated.
  • Each party to bear its own costs in this procurement process.

Rules and key headnotes

Public Procurement — Administrative Review — Statutory Timelines for Accounting Officer's Decision
Under section 89(7) of the Public Procurement and Disposal of Public Assets Act as amended, an Accounting Officer must make and communicate a decision within ten days of receipt of a complaint, and these are calendar days, not working days. A decision made within time but communicated late is time-barred, constitutes a blatant breach of the law, and is null and void.
Public Procurement — Administrative Review — Communication of Decision
Section 89(8) of the Public Procurement and Disposal of Public Assets Act requires the Accounting Officer not only to make a decision within the statutory timeline but to simultaneously communicate it by way of service, transmission or delivery to the applicant. The date of communication is deemed to be the date when the decision was delivered to the applicant. Procuring and disposing entities should secure proof of delivery.
Public Procurement — Standing — Definition of Bidder
A person remains a bidder until the successive stages in the procurement cycle including examination and evaluation of bids, award of contract, and contract management are completed, except where the validity of the bid has expired without extension. The fact that a bid was found non-responsive to technical requirements does not mean the bidder ceases to be a bidder in the procurement process and loses standing to challenge subsequent decisions.
Public Procurement — Time Limits for Appeal to Tribunal
Under section 91I(2)(b) of the Public Procurement and Disposal of Public Assets Act as amended, where an Accounting Officer does not make a decision within the specified period, a bidder may apply to the Tribunal within ten days from the date of expiry of the period within which the Accounting Officer should have communicated the decision.
Public Procurement — Post-Qualification Evaluation — Evaluation Criteria
An evaluation committee shall not, during evaluation, make an amendment or addition to the evaluation criteria stated in the bidding document, and shall not use any criteria other than those stated in the bidding document. What is not expressly provided for in evaluation criteria stated in the bidding document cannot be imported and should not be imported by the evaluation committee, even if it is stated in the law.
Public Procurement — Challenge to Bidding Document — Time for Objection
A bidder who submits a bid using a bidding document cannot challenge the criteria in the bidding document after bid submission. Litigation and administrative review in respect of any cause of action cannot be conducted in instalments. A bidder cannot raise new complaints with respect to the propriety of the bidding document at a later stage if the same cause of action was the subject of a previous complaint that was not appealed.
Public Procurement — Due Diligence — Discretion of Procuring Entity
The conduct of due diligence is not part of post-qualification evaluation criteria but a discretion of the procuring and disposing entity to carry out a due diligence test on a bidder or bid at any time during a procurement process for the purpose of exercising due care, pursuant to Regulation 31(1) and 31(2) of the Public Procurement and Disposal of Public Assets (Procuring and Disposing Entities) Regulations 2014.

Legislation cited (19)

Cases cited (8)

  • VCON Construction (U) Ltd v Uganda Development Bank (Application No. 22 of 2021)
  • Elite Chemicals Limited v Uganda Coffee Development Authority (Application No. 1 of 2022)
  • VCON Construction (U) Limited v Makerere University (Application No. 3 of 2022)
  • JV Kadac-Globaltec v Uganda Prisons Service (Application No. 4 of 2022)
  • Arua Municipal Council v Arua United Transporters' SACCO (Civil Appeal No. 25 of 2017)
  • Roko Construction Ltd v PPDA & National Drug Authority (Application No. 4 of 2017)
  • Engineering Solutions (U) Ltd v Ministry of Water and Environment (Application No. 24 of 2021)
  • Libra Court Bailiffs & Auctioneers v NWSC (Application No. 5 of 2022)

Full judgment

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

Technology Associates Limited in Consortium with Comviva Technology Limited v Post Bank Uganda Limited (Application No 6 of 2022) 2022 UGPPDPAAT 6 (24 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.