Wakilii

The Joint Ventures between China National Aero Technology International Engineering Corporation and Another v Uganda Heart Institute and Others r [2024] UGPPDPAAT 39

Tribunal · 2024 Applications Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Applications for review of procurement decisions by Uganda Heart Institute to disqualify bidders from a construction tender, following dismissal of administrative review complaints by the Entity's Accounting Officer.
Decision
Both applications dismissed; Entity permitted to continue procurement process; suspension order vacated

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that it had jurisdiction over the procurement despite international funding. The Joint Venture's bid was rightfully disqualified for non-compliance with power of attorney requirements, failure to submit a mandatory Declaration Form, and inadequate site engineer experience. China Civil Engineering Construction Corporation's bid was rightfully disqualified solely for failing to demonstrate sufficient specific construction and management experience in hospital projects valued at USD 40 million or more, but not for labour dispute history or prior suspension by funders. Both applications dismissed.

Outcome

Both applications dismissed; Entity permitted to continue procurement process; suspension order vacated

Facts

Uganda Heart Institute initiated international competitive bidding for construction and equipping of a hospital facility at Naguru, Kampala, with funding from OPEC Fund, BADEA, and Saudi Fund. Twelve bidders submitted bids. The Entity named Arab Contractors the Best Evaluated Bidder at USD 45,400,000 and disqualified two applicants. The Joint Venture was disqualified for defects in power of attorney documentation, missing Declaration Form on ILO Labour Standards, and inadequate site engineer experience. China Civil Engineering Construction Corporation was disqualified for insufficient hospital construction experience and labour dispute history. Both applicants filed administrative review complaints which were dismissed, then filed applications before the Tribunal seeking review of the Entity's disqualification decisions. The Tribunal consolidated the two applications arising from the same procurement.

Issues

  1. Whether the Tribunal has jurisdiction over the procurement.
  2. Whether the bid of The Joint Venture between China National Aero Technology International Engineering Corporation and China Xingxing Construction & Development Co. Ltd was rightfully disqualified by the Entity.
  3. Whether the bid of China Civil Engineering Construction Corporation was rightfully disqualified by the Entity.
  4. What remedies are available to the parties.

Orders

  • Application No. 38 of 2024 dismissed.
  • Application No. 41 of 2024 dismissed.
  • The Tribunal's suspension order dated September 4, 2024, vacated.
  • The Entity may continue with the procurement process to its logical conclusion.
  • Each party to bear its costs.

Rules and key headnotes

Administrative Law — Public Procurement — Tribunal Jurisdiction — International Funding — Conflict with Act
Where the Public Procurement and Disposal of Public Assets Act conflicts with an obligation arising from an agreement with international organisations, the agreement prevails, but the Act applies and the Tribunal has jurisdiction where there is nothing to the contrary in the funders' procurement rules or the funding agreement and no conflict is demonstrated.
Administrative Law — Public Procurement — Power of Attorney — Joint Venture — Authorised Representative
A bid signed by an individual whose authority derives from a power of attorney appointing a company (not the individual personally) as the joint venture's representative does not comply with bidding requirements for an authorised signature, where one joint venture partner subsequently appointed a different authorised representative, creating contradictory instructions on who may bind the joint venture.
Administrative Law — Public Procurement — Administrative Compliance — Waiver of Non-Conformities
A non-conformity or omission may be waived only where the bid is administratively compliant in the first place; waiver is meant to cure deficiencies in submitted documents but not to completely waive prescribed documents, and a bid missing a mandatory declaration form is not administratively compliant and cannot be cured by waiver.
Administrative Law — Public Procurement — Site Visit — Joint Venture — Substantial Responsiveness
Where a partner in a joint venture has carried out a mandatory site visit and obtained a certificate of site visit, the objective of the site visit requirement is fulfilled, and the non-submission of a site visit certificate in the name of the joint venture itself should be waived where the bid is substantially responsive and the entity has not demonstrated any prejudice.
Administrative Law — Public Procurement — Technical Evaluation — Methodology Assessment — Objective Criteria
Where bidding document criteria specify minimum content for a method statement but do not specify objective yardsticks for assessing whether a method statement is satisfactory or adequate, a subjective assessment that the method statement is 'deemed unsatisfactory' violates the principles of transparency and fairness in public procurement.
Administrative Law — Public Procurement — Qualification Criteria — Historical Non-Performance — Scope of 'Consistent History of Awards'
Qualification criteria on historical contract non-performance in a construction procurement must be read in context; where terminology throughout the criteria relates to construction contracts (contractor's default, bid securing declaration, civil work, etc.), the consistent history of awards criterion applies only to construction contracts and not to isolated labour disputes or non-construction matters, and four labour dispute awards over three years do not constitute a consistent history warranting disqualification.
Administrative Law — Public Procurement — Evaluation Criteria — Additional Criteria — Prohibition
No evaluation criteria other than stated in the bidding documents shall be taken into account, and an evaluation committee shall not use any criteria other than the criteria stated in the bidding document; where a bidder submits the required Environmental and Social Performance Declaration disclosing a prior suspension that was subsequently lifted, the entity errs in disqualifying the bidder on grounds that the prior suspension 'deemed a huge risk' where no such risk-based criterion exists in the bidding document.

Legislation cited (8)

Cases cited (7)

  • Rural Electrification Agency v CG Andjies and Another (Application No. 1 of 2019)
  • Dott Services Ltd v PPDA and Another (Application No. 3 of 2017)
  • K-Solutions Limited v Attorney General and PPDA (Application No. 9 of 2020)
  • Mumtaz Kassam and Another v Ebrahim Kassam and Another [2008] HCB 19
  • Samanga Elcomplus JV v Public Procurement and Disposal of Public Assets Authority and Another (Application No. 4 of 2021)
  • GAT Consults Ltd and Lee Construction Ltd (JV) v PPDA and Ministry of Water and Environment (Application No. 6 of 2021)
  • Vision Scientific & Engineering Ltd v Makerere University and Another (Application No. 37 of 2022)

Full judgment

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

The Joint Ventures between China National Aero Technology International Engineering Corporation and Another v Uganda Heart Institute and Others r 2024 UGPPDPAAT 39 (24 September 2024)
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.