Wakilii

VCon Construction (U) Limited v Makerere University (Application No 3 of 2022)

Tribunal · [2022] UGPPDPAAT 3 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for administrative review of procurement decision before the Public Procurement and Disposal of Public Assets Appeals Tribunal
Decision
Procurement process declared terminated; entity may re-tender if it wishes

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Tribunal held that an applicant who filed for administrative review while bids were valid has locus standi under section 91I(1)(b) even after bids expired due to the Accounting Officer's failure to request bid validity extension as mandated by section 89(6). The Accounting Officer's omission to request bid extension was a breach of mandatory statutory duty. The procurement process ended when bids expired on 31 December 2021. The Accounting Officer's decision issued on 4 January 2022 was invalid as it was communicated outside the statutory 10-day period. No valid contract can be entered into on the basis of an expired procurement process.

Outcome

Procurement process declared terminated; entity may re-tender if it wishes

Facts

On 17 September 2021, Makerere University published a bid notice for construction and restoration of its Main Building. Nine bidders submitted bids. On 9 December 2021, Excel Construction Ltd was displayed as the Best Evaluated Bidder, and VCon Construction (U) Limited was disqualified. On 23 December 2021, VCon applied to the Accounting Officer for administrative review. The Accounting Officer did not request bidders to extend bid validity as required by statute. The bids and bid securities expired on 31 December 2021. On 4 January 2022, the Accounting Officer communicated his decision rejecting VCon's application. On 17 January 2022, VCon applied to the Tribunal. The Respondent raised a preliminary objection that VCon had no locus standi since bids had expired and VCon was no longer a bidder.

Issues

  1. Whether there is a competent application for administrative review before the Tribunal.
  2. Whether the Accounting Officer erred in fact and in law when he decided not to or omitted to request the bidders to extend the bid validity and the bid security.
  3. Whether the procurement process came to an end on the 31st day of December 2021.
  4. Whether the decision of the Accounting Officer dated 4th January 2022 was valid and lawful.
  5. Whether the consequential contract can be legally entered into and executed by the Best Evaluated Bidder and the Respondent.
  6. What reliefs are available to the Applicant.

Orders

  • The procurement process of works for the construction and restoration of Makerere University Main Building under Ref No. MAK/WRKS/2021-2022/00009 came to an end upon expiry of the bids on 31st December 2021.
  • The Entity may re-tender the procurement if it so wishes.
  • The Tribunal's suspension order dated 17th January 2022 is vacated.
  • Each party to bear its own costs.

Rules and key headnotes

Public Procurement — Locus Standi — Aggrieved Party — Section 91I(1)(b)
An applicant who participated in a procurement process and filed for administrative review while bids were valid has locus standi under section 91I(1)(b) of the Public Procurement and Disposal of Public Assets Act 2003 as a person whose rights were adversely affected by the Accounting Officer's failure to comply with mandatory statutory duties, even if the applicant ceased to be a bidder after bids expired.
Public Procurement — Bid Validity Extension — Mandatory Duty — Section 89(6)
Under section 89(6) of the Public Procurement and Disposal of Public Assets Act 2003, an Accounting Officer must, on receipt of an application for administrative review, request bidders to extend their bid validity and bid security. This provision is mandatory and non-compliance makes the proceedings fatal.
Public Procurement — Expiry of Bids — Termination of Procurement Process
Once bids and bid securities expire, the procurement process comes to an end. No valid contract can be entered into on the basis of an expired procurement process.
Public Procurement — Administrative Review — Statutory Time Limits — Section 89(7)
Under section 89(7) of the Public Procurement and Disposal of Public Assets Act 2003, an Accounting Officer must make and communicate a decision to a bidder within ten calendar days of receipt of a complaint. A decision issued outside this statutory period is a blatant breach of the law and is invalid and unlawful.
Public Procurement — Mandatory Provisions — Strict Compliance
Provisions of the Public Procurement and Disposal of Public Assets Act regulating procurement practices are mandatory and not directory. The Act cannot regulate practices in respect of public procurement unless its provisions are adhered to strictly to the letter. Non-compliance makes the proceedings fatal.

Legislation cited (5)

Cases cited (8)

  • Old Kampala Students Association v Old Kampala Senior Secondary School & PPDA (Application No. 7 of 2017)
  • TWED Property Development Limited v PPDA (PAT Application No. 9 of 2015)
  • Galleria in Africa Ltd v Uganda Electricity Distribution Company Ltd (Civil Appeal No. 2017) [2018] UGSC 19
  • Kazini Fredric v PPDA (PAT Application No. 16 of 2015)
  • Acacia Place Ltd v PPDA and Electoral Commission (Application No. 10 of 2021)
  • Elite Chemicals Limited v Uganda Coffee Development Authority (PAT Application No. 1 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)

Full judgment

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

VCon Construction (U) Limited v Makerere University (Application No 3 of 2022) 2022 UGPPDPAAT 3 (9 February 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.