Wakilii

Vcon Construction (U) Ltd v Makerere University (Application No 3 of 2022)

Tribunal · [2022] UGPPDPAAT 1 · 2022 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for administrative review of procurement decision following disqualification at detailed evaluation stage
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

Held that an applicant who filed for administrative review while bids were valid has locus standi under section 91I(1)(b) even after bids expire, where the Accounting Officer failed to request bid validity extension as mandated by section 89(6). The Accounting Officer's failure to request bid extension was a mandatory breach. 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 exceeded the mandatory 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, with Vcon Construction (U) Ltd disqualified at the detailed evaluation stage. On 23 December 2021, Vcon applied to the Accounting Officer for administrative review while bids were still valid. The Accounting Officer did not request bidders to extend bid validity or bid security. 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 as it was no longer a bidder after bid expiry.

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 31st 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 Status After Bid Expiry
An applicant who participated in a procurement process and filed an application for administrative review within the stipulated time while bids were still valid has locus standi under section 91I(1)(b) of the Public Procurement and Disposal of Public Assets Act 2003 as an interested party whose rights were adversely affected by the Accounting Officer's failure to request bid validity extension, even though the applicant ceased to be a bidder after the bids expired.
Public Procurement — Mandatory Duty to Request Bid Validity Extension
Section 89(6) of the Public Procurement and Disposal of Public Assets Act 2003 as amended by Act 15 of 2021 imposes a mandatory duty on an Accounting Officer, upon receipt of an application for administrative review, to request bidders to extend the validity of their bids and bid securities. The only method available for bid validity extension is when the entity makes the request to the bidders. Failure to comply with this mandatory provision is a fatal breach.
Public Procurement — Mandatory vs Directory Provisions
Provisions of the Public Procurement and Disposal of Public Assets Act 2003 are mandatory and not merely directory. The Act cannot regulate practices in respect of public procurement unless its provisions are adhered to strictly to the letter. Procurement and disposal activities are processes; one cannot move to another stage of the processes without fulfilling the first one. Non-compliance with mandatory provisions makes the proceedings fatal.
Public Procurement — Effect of Bid Expiry on Procurement Process
Once bids have expired, the procurement process comes to an end. A contract cannot be signed in respect of an expired bid. No valid contract can be entered into with a bidder on the basis of a procurement process that has ended.
Public Procurement — Time Limit for Accounting Officer's Decision
Under section 89(7) of the Public Procurement and Disposal of Public Assets Act 2003 as amended by Act 15 of 2021, an Accounting Officer shall make and communicate a decision to the bidder who makes a complaint within ten days of receipt of the complaint. The ten days are calendar days, not working days. A decision issued out of time is a blatant breach of the law and no decision at all.

Legislation cited (6)

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 of 2017)
  • 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) Ltd v Makerere University (Application No 3 of 2022) 2022 UGPPDPAAT 1 (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.