CHINA ROADS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA MISCELLANEOUS CIVIL CAUSE NO. 25514 OF 2023 IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI AND MANDAMUS AND IN THE MATTER TO CHALLENGE THE DECISION OF THE PUBLIC PROCUREMENT APPEALS AUTHORITY NULLIFYING THE INTENTION TO AWARD TENDER BETWEEN CHINA ROAD AND BRIDGE CORPORATION................. .APPLICANT AND ATTORNEY GENERAL........................................... .....RESPONDENT PUBLIC PROCUREMENT APPEALS AUTHORITY....2ND RESPONDENT TANZANIA ROADS AGENCY.................................. 3rd RESPONDENT M/S SOBETRA UGANDA LIMITED........................ 4th RESPONDENT RULING Last Order: 11th June 2024 Ruling: 31st July 2024 MASABO, J:- This ruling is in respect of an application for orders of certiorari and mandamus. In the chamber summons instituting it the applicant has beseeched this court to issue an order of certiorari nullifying and quashing the decision of the 2nd respondent, the Public Procurement Appeals Authority Page 1 of 18 (PPAA) in Appeal No. 48 of 2022 dated 2nd July 2023 and an order of mandamus compelling the third respondent to uphold her as the qualified bidder in the tender. The chamber summons is accompanied by a statement and an affidavit deponed by the principal officer of the applicant, one Jiang Quanxin. From these two documents, the following facts are discerned. That the applicant herein was a bidder in public tender identified as tender No. AE/001/2022- 23/HQ/W/14 for upgrading of Omugakorongo-Kigarama-Murongo Road (111km) to BITUMEN STANDARD, Lot 2 Businde-Murongo section (53.4 km). As part of the process, on 16th December 2022, she uploaded his documents in the Tanzania National Electronic Procurement System (TANePS) and the tender was positively evaluated. On 13th March 2023, she received a notice of intent to award the tender with a total value of TZS 123,308,141,204.66 inclusive of 18% of VAT which is estimated at TZS 17,794,241,878.68. Surprisingly, 14th September 2023 saw a turn of events. The applicant was supplied with a letter from the third respondent notifying her of the withdrawal of the award and that a re-evaluation had to be conducted. She was further notified that the withdrawal and the re-evaluation have been necessitated by a complaint lodged by the 4th respondent before the 2nd respondent through which it was established that the tender was awarded in abrogation of the law. Having received this letter, the applicant visited the 2nd respondent's website where she learned that, there was a decision made against her interest by the 2nd respondent on 21st July 2023 without affording Page 2 of 18 her the right to be heard. Hence, the present application seeking for nullification of the decision thereof. The application was sternly disputed by all the respondents. The 1st, 2nd and 3rd respondent filed a joint counter affidavit deponed by one Peter Sengelema, a learned State attorney vide which it was deponed that indeed the applicant was issued with a notice of intention to award her the tender. That, the same was cancelled following the appeal by the appellant through which it was discovered that the notice was wrongly issued to the applicant because she was not a tenderer. He amplified that, the company that participated in the tender was M/s China Road and Bridge Corporation (T) Limited but all the documents uploaded by this company in the TANePS carried the name of the applicant, M/S China and Bridge Corporation. Thus, the tenderer was M/s China Road and Bridge Corporation (T) Limited and not M/S China and Bridge Corporation, the applicant herein. On the averment that the applicant was condemned unheard, it was deponed that the applicant forfeited her right as, through the 2nd respondent's letter dated 22nd June 2023, she was duly notified of the existence of the 4th respondent's appeal but she took no action. The 4th respondent through a counter affidavit deponed by Petrangeli Giorgio Caesar Antonio- Junior averred that the applicant was not a tenderer as the only two companies that bid for the tender through TANePS were herself and a company styled as M/S China Road and Bridge Corporation (T) Ltd. Thus, even the notice of intention to award the tender was issued to M/S Page 3 of 18 China Road and Bridge Corporation (T) Ltd and not the applicant herein. Just as the 1st, 2nd and 3rd respondent, the 4th respondent averred that the applicant was notified of the appeal but she took no steps to be joined in the appeal. Hence, her complaint is without merit. The hearing of the application proceeded in writing ex parte the 4th respondent after he defaulted appearance. The applicant and the respondents were all represented. The submissions by the applicant were drawn and filed by Mr. Justin Madenge, learned counsel from Justin Attorneys and the submissions for the 1st, 2nd and 3rd respondents were filed by Mr. Omary Ally Ngatanda, learned State Attorney. In support of the application, Mr. Madenge opened his submission by reciting the prayers set out in the chamber summons and the background of the application as above summarized. On the merit of the application, he submitted that the prayer for the order of certiorari is based on the ground that the applicant was condemned unheard. He amplified that the law governing administrative reviews before the 3rd respondent and appeals before the 2nd respondent mandatoriiy require notification of the tenderers/respondents but the applicant herein being the tenderer she was not notified of the review and the appeal and was not afforded the right to be heard. The omission offended the provision of Regulation 106(1) (b) of the Public Procurement Regulations GN No. 446/2013 that requires that if the accounting officer of the procurement authority receives an application for review, he should notify all the tenderers who participated in the tender Page 4 of 18 and if a tenderer is interested to join the proceedings she should submit a written response. Similarly, Rule 12(1) of the Public Procurement Appeals Rules GN No. 411/2014 requires the 2nd respondent to notify the respondents of the instituted appeal and to afford them a right to file their reply within 5 working days. It was argued that since the above regulations/rules impose a mandatory requirement for notification, it was incumbent for the 3rd and the 2nd respondent to notify the applicant of the existence of the administrative review and the appeal, respectively, but they did not. The omission was prejudicial to the applicant as he was consequently condemned unheard because she could not join the proceedings or anyhow participate in the administrative review and the subsequent appeal to the 2nd respondent. The omission was a fatal irregularity as it deprived the applicant of her right to be heard in the review and appeal proceedings. Therefore, it is in the interest of justice that the prayer for certiorari be granted to remedy the anomaly and, subsequently, an order of mandamus be granted to compel the 3rd respondent to continue holding the applicant as the qualified bidder. In fortification of the submission and prayers, Mr. Madenge cited the case of Simeoni Manyaki vs Executive Committee and Council of the Institute of Finance Management (IFM) [1984] TLR 304 Mr. Ngatanda also opened his submission with a narration of the background facts. He then drew the attention of this court to the disparity between the name of the applicant and the name of the company that was the bidder to Page 5 of 18 the tender above. He submitted that the tenderer was M/S China Road and Bridge Corporation (T) Limited and not M/S China Road and Bridge Corporation, the applicant herein. The only linkage of the applicant to the tender is the documents uploaded by the tenderer in TANePS which bears her name and which did not render the applicant a tenderer. Thus, the 2nd and 3rd respondent had no obligation whatsoever to notify the applicant. Their duty for notification was only limited to the tenderers. Mr. Ngatanda submitted further that the applicant's non participation in the appeal process was out of choice because she was notified of the existence of the appeal but she did not request to be joined in the proceedings. Thus, she forfeited her right. It was argued further that the cardinal principle as to the right to be heard should be considered alongside other fundamental legal principles notably, the principle that the parties are bound by their pleadings. By this principle, the court is obliged to determine the matter before it and between the parties before it not otherwise as held in the case of Salim Said Mtokemela vs Mohammed Abdallah Mohammed Civil Appeal No. 149 of 2019 [2023] TZCA15 TanzUI. Therefore, since the applicant was not the tenderer, the provision of Regulation 106(1) (b) of the Public Procurement Regulations and Rule 12 (1) of the Public Procurement Appeals Rules are inapplicable. The notification could not be issued to the applicant as she was neither the tenderer nor the respondent. The notification sent to her was only done out of courtesy in consideration that the outcome may adversely affect her yet, she decided to take no action. The fact that she was notified of the existence of the appeal via the letter dated 22nd June Page 6 of 18 2023 signifies that she was aware of the proceedings and if she wished, she could have joined and exercised her right of defence. Since she opted the take no action, she has no reason to complain. On the cited authority, it was replied that the facts of this application and Simeon Manyaki (supra) are sharply distinguishable and it is, therefore, inapplicable. On the remedies, it was submitted that the orders of certiorari and mandamus have been overtaken by events because, in compliance with the orders of the 2nd respondent, the 3rd respondent reevaluated the tender and cancelled it due to lack of funds as the bids were far above the allocated budget. The tender is now due for re-advertisement in the National e- Procurement System (NeST) and the applicant is at liberty to bid when the tender is floated in NeST. Thus, granting the prerogative orders sought will serve no good purpose. Rejoining, Mr. Madenge reiterated his submission in chief that, the 2nd respondent's decision is a nullity as it was contrary to the law and was made in abrogation of the applicant's right to be heard. He added further that the submission that the applicant could not have been notified as he was not a tenderer is misleading and an afterthought. It should not be entertained considering that the respondents issued him some letters and correspondences as seen in Annexture API and AP 2 of the affidavit. This was the end of the submissions. Page 7 of 18 The main issue for determination from these rival submissions is whether the present application has merit and whether the prayers set out in the chamber summons are tenable. As I embark on the determination journey, it is imperative to note at this very outset that, the two main prayers set out in the chamber summon, that is, certiorari and mandamus, are in the nature of prerogative orders. They are granted by this court in the exercise of its supervisory powers (judicial review) over administrative and quasi-judicial bodies. Essentially in these proceedings, the court is invited to look into the proceedings and the decisions of the quasi-judicial body to ascertain whether there are any illegalities. Of central interest to the court is whether the processes through which the impugned decision was arrived at, are flawless (see Felix Mselle vs Minister for Labour and Youths & 3 others [2002] TLR 446). Principally, applications for judicial review are anchored on four principles that were stated by this court in the case of James Gwagilo vs. Attorney General [1994] TLR 74. While referring to the English case of Council of Civil Service Union vs. Minister for the Civil Service[1984] 3 ALL ER, this court (Mwalusanya, J as he then was) stated that the decision of the quasi-judicial body can be faulted on any of the following four grounds, namely first, illegality of the decision encompassing (failure to follow the law); second, procedural impropriety (failure to observe the principles of natural justice and failure to act with procedural fairness); third, irrationality (making a decision which is outrageous in its defines of logic or accepted moral standards that no reasonable person who had applied his mind to it Page 8 of 18 could have made such a decision), and fourth, proportionality (that the means employed by a decision maker are no more than is reasonably necessarily to achieve his or her legitimate aims. Cementing these grounds in the case of Sanai Murumbe and Another vs. Muhere Chacha [1990] TLR 54 the Court of Appeal held, in regard to the order of certiorari, that: An order of certiorari is one issued by the High Court to quash the proceeding and decision of subordinate court or a tribunal or a public authority where, among others, there is no right of appeal. The High Court is entitled to investigate the proceeding of a lower court or tribunal or a public authority on any of the following grounds, apparent on the record. One, that the subordinate court or tribunal or public authority has taken into account matters which it ought not to have taken into account. Two, that the court or tribunal or public authority has not taken into account matters which it ought to have taken into account. Three, lack or excess of jurisdiction by the lower court. Four, that the conclusion arrived at, is so unreasonable that no reasonable authority could ever come to it. Five, rules of natural justice have been violated. Six, illegality of procedural of decision. In the present case, the applicant's gravamen is that the 2nd respondent's decision adversely affected her interest by cancelling the tender that she had won. Yet, it was arrived at in total abrogation of Regulation 106(l)(b) of the Public Procurement Regulations Government Notice No. 446 of 2013 and Rule 12 of the Public Procurement Appeals Rules Government Notice No. 411 of 2014, which require notification of the tenderers and respondents so as to afford them the right to oppose the review and the appeal, if they wish. Page 9 of 18 For the respondents, it has been argued that there was full compliance with the procedural law. The applicant was notified of the appeal before the 2nd respondent but he forfeited her right to object it. Alternatively, it has been argued that the 2nd respondent had no obligation to notify the applicant as she was not the respondent, hence not a party to the appeal and was not a tenderer. From the pleadings and the submissions, the following facts are undisputed. One, that, when the applicant floated the tender, a company styled as M/S China Road and Bridge Corporation (T) Limited bit for it. Two, when submitting her documents electronically in the TANePs the said company uploaded documents bearing the name of the applicant, M/S China Road and Bridge Corporation and not documents for M/S China Road and Bridge Corporation (T) Limited. Three, on 13th March 2023 the applicant was notified to have won the tender and was invited to pre-contractual negotiations. Four, that, the process was not finalized as the tender was cancelled by the 2nd respondent's decision dated 21st July 2023 that upheld the 4th respondent's appeal and held that the applicant was not a tenderer. Regulations 104 of the Public Procurement Regulations provide a remedy for a person aggrieved by a tendering process. As per this Regulation, the immediate remedy available to the aggrieved tenderer is to apply for review before the accounting officer of the procuring entity, in this case, the 3rd respondent. The procedural steps for realization of this remedy are stipulated under Regulations 105 and 106 of the Public Procurement Regulations. The Page 10 of 18 relevant parts of these two regulations are, conveniently, reproduced below for easy of reference. They state: 105.- (3) The application for administrative review shall contain- (a) Details of the procurement or disposal requirements to which the complaint relates; (b) Details of the provisions of the Act, Regulations or provisions that have been breached or omitted; (c) an explanation of how the provisions of the Act, Regulations or provisions have been breached or omitted, including the dates and name of the responsible public officer, where known; (d) Documentary or other evidence supporting the complaint where available; (e) Remedies sought; and (f) Any other information relevant to the complaint. 1O6.-(1) An accounting officer shall, upon receipt of an application for administrative review- (a) Suspend the procurement or disposal proceedings of the tender in dispute, until he delivers a written decision on the complaint; and (b) Notify all tenderers who participated in the tender, of the complaint and of its substance within three working days of receipt of such application and the tenderers who opt to join in the proceeding shall submit written responses within three working days of receipt of such notification. (Emphasis supplied) As correctly submitted by Mr. Madenge Regulation 106(2) above mandatorily obliges the accounting officer of the tendering entity to notify the tenderers. Page 11 of 18 There is a corresponding requirement for complaints that remain unresolved and proceed to the appeal stage before the PPAA. Rule 12 of the Public Procurement Appeals Rules, G.N NO, 411 of 2014 requires the Executive Secretary to send a copy of the appeal to the respondent together with a notification letter requiring the respondent to submit his reply within five working days. The respondent is subsequently required to file a written submission addressing all the issues raised in the statement of appeal. The parties are in disagreement on whether the requirement for notification extended to the applicant. Since the requirement for notification under rule 106(l)(b) is meant for tenderers, the definition of the term tenderer as provided for under section 3 of the Public Procurement Act is relevant. Under this provision, a "tenderer" is defined to mean a person, natural or corporate, participating in the procurement proceedings with the view to submitting a tender. Mr. Ngatanda's argument is that the applicant was not a tenderer, thus the obligation for notification was not owed to her but to M/s China Road and Bridge Corporation (T) Limited. I respectfully disagree with this opinion which was belatedly raised in the course of reply submission as it sharply contrasts with the peculiar circumstances of the present application which signals the conferment of certain interest or a legitimate expectation on the applicant. The notification sent to the applicant informing her to have won the tender and inviting her for pre-contractual negotiations, impliedly, acknowledged her as a tenderer and consequently vested in her certain entitlements or a legitimate expectation as far as the cancellation of the tender was concerned. As the substance of this letter has not been disputed, Page 12 of 18 I see no justification for the exculpatory argument raised by Mr. Ngatanda because in my considered view, irrespective of whether this acknowledgment was inadvertent, the 3rd respondent owed the applicant a duty to notify her of any change that would adversely affect her interest. The argument by Mr. Ngatanda is also inconsistent with the right to be heard. The requirement for notification of a procedure or complaint likely to spur a decision adverse to one's interest is an intrinsic element of this right which is both, a principle of natural justice and a fundamental right enshrined under our constitution (see Mbeya-Rukwa Autopaits and Transport Limited vs. Jestina George Mwakyoma, Civil Appeal No. 45 of 2001 TZCA 14 TanzLII and Wegesa Joseph M. Nyamaisa vs Chacha Muhogo (Civil Appeal No. 161 of 2016) [2018] TZCA 224 TanzLII). Therefore, since there was a potentiality that the applicant would be adversely affected by the outcome of the complaint, the 3rd respondent was duty-bound to notify her of the complaint and its attendant procedure irrespective of whether she was a tenderer or not. Having resolved this, I will now move to the next rival argument which is on the sufficiency of the notice. Mr. Ngatanda has passionately argued that the applicant was notified through a letter dated 22nd June 2023 the relevant substance of which is reproduced below: "RE: NOTIFICATION ON SUSPENSION OF PROCUREMENT PROCESS FOR TENDER NO. AE/001/2022-23/HQ/W/14 FOR UPGRADING OF OMUGAKORONGO KIGARAMA-MURONGO ROAD (111KM) TO BITUMEN STANDARD, PACKAGE 2:" Page 13 of 18 Please refer to our letter of intent Ref. AB.74/251/72 dated 13th March, 2023 regarding the above tender. 2. We have been informed that one Tenderer has appealed to the Public Procurement Appeals Authority (PPAA) and the matter is under review. Therefore, pursuant to regulation 106(1) (b) of the Public Procurement Regulation, 2013 ads amended in 2016, you are informed that the procurement proceeding for the above tender has been suspended until completion of the review." On his part, Mr. Madenge has passionately argued that such was neither a proper nor sufficient notification. I have, therefore, to determine whether this letter suffices the notice envisaged in Regulation 106 (l)(b) of the Public Procurement Regulations above cited. Having examined the substance of this letter vis-a- vis the contested provision I will, for the following three reasons, respectfully decline Mr. Ngatanda's invitation to hold in the respondents' favour. First, there is a sharp contrast between Mr. Ngatanda's argument and the spirit of the letter as depicted in its title and paragraph two. These two parts of the letter clearly demonstrate that it was meant to inform the applicant of the cancellation of the tender and the reason thereto, not otherwise. Second, the substance of the letter is far below the minimum threshold of regulation 106(l)(b) which directs that the notification must stipulate the substance of the complaint. The gist of this Regulation can be best understood when it is read together with Regulation 105(3). Under this Regulation it is stated that the complaint commencing the review process should vividly stipulate the details of the provisions of the Act; regulations or Page 14 of 18 provisions allegedly breached or omitted; an explanation of how the said provision or regulation has been breached or omitted; the documentary or other evidence supporting the complaint where available and the remedies sought. It is therefore expected that the notification sent to the tenderers should substantially stipulate the items listed under Regulation 105(3). As there was no such stipulation, I agree with Mr. Madenge that, the requirement of Regulation 106(l)(b) was offended. The applicant was not sufficiently notified of the review conducted by the 3rd respondent which resulted in the appeal by which the tender was canceled. Needless to emphasize, the requirement for notification under Regulation 106(l)(b) is so crucial that it cannot be underrated as, apart from notifying the respective tenderers of the existence of the complaint, this Regulation is meant to enable them to participate in the review process by objecting it and in the subsequent appeal thereto as appellants or respondents. This right cannot be exercised unless the respective tenderers have been furnished with the substance of the complaint. Lastly, even if I were to hold that the substance encompassed sufficient notice, Mr. Ngatanda's argument would still fail as there was no proof that the said letter was furnished to the applicant. As regards the appeal before the 2nd respondent to which I now turn and whose decision is being challenged, Rule 12 of the Public Procurement Appeals Rules, requires the Executive Secretary of the 2nd respondent, upon Page 15 of 18 receipt of the appeal to send a copy thereof to the respondent together with a notification letter requiring the respondent to submit his reply within five working days. The respondent is subsequently required to file a written submission addressing all the issues raised in the statement of appeal. As no proof was rendered to show that the applicant was notified, it is presupposed that there was no such notification. This is not surprising considering that, as per the decision of the 2nd respondent which is appended to the applicant's application, the appeal was between the 4th respondent herein (as appellant) and the 3rd respondent herein (as respondent). The applicant was not the respondent hence the 2nd respondent owed no duty to notify her of the appeal proceedings before it. The last question for determination is whether the order of certiorari and mandamus can be issued. In view of the finding above, the question attracts an affirmative answer in respect to the order of certiorari. Much as the 2nd respondent had no legal duty to notify the applicant as he was not a respondent, its decision cannot stand as the appeal proceedings emanated from a decision made without affording the applicant the right to be heard. The failure to afford the applicant her right to be heard at the review proceedings, consequently deprived her of the right to be notified and to be heard in the appeal proceedings and rendered both the review proceedings and the appeal proceedings a nullity. It is a cardinal law in our jurisdiction that a decision reached in violation of the right to be heard is void and is of no effect irrespective of whether the Page 16 of 18 decision would be the same whether the party was accorded the right to be heard or not (see Abbas Sherally and Another v. Abdul S.H.M. Fazalboy, Civil Application No. 33 of 2002 [2005] TZCA TanzLII and Rajabu Yusufu Kirumbi & Others vs Wendo Mlaki & Others (Civil Appeal No. 137 of 2021) [2024] TZCA 211 TanzLII. In Abbas Sherally and Another v. Abdul S.H.M. Fazalboy, the Court instructively held thus:- The rights of a party to be heard before adverse action or decision is taken against such a party has been stated and emphasized by the Court in numerous decisions. The right is so basic that a decision which is arrived at in violation of it will be nullified even if the same decision would have been reached had the party been heard because the violation is considered to be a breach of natural justice". Coming to the second remedy, the applicant has beseeched this court to issue an order of mandamus to continue to hold her as the qualified bidder. Mr. Ngatanda has argued that this order should not be issued as the tendering process has been halted pending the obtainment of funds for the intended project. This submission being from the bar, should not attract any weight. This notwithstanding, I am hesitant to grant the order due to the undisputed revelations on the procedure leading to the award of the tender to the applicant which reveal a necessity for interrogation of the appropriateness or otherwise of the award. An order of mandamus could operate as a bar to these processes. Besides, the stage at which the tender process was interrupted was not final in that, the award of the tender was Page 17 of 18 subject to the results of pre-contractual negotiations between the applicant and the 3rd respondent as stipulated in the 3rd respondent's letter dated 13th March 2023. The order of mandamus may implicitly attract a far-fetched effect beyond the provisional stage at which the parties were. For these two reasons, prudence dictates that the order of mandamus should not be issued. That said and done and save for the order of mandamus, the application succeeds. The order of certiorari against the decision of the 2nd respondent in Appeal Case No. 48 of 2023 is issued. The said decision is quashed and set aside for being predicated in nullity proceedings for review by the 3rd respondent whose decision is similarly quashed and set aside. The applicant shall be entitled to his costs. DATED and DELIVERED at Dodoma this 31st day of July 2024 Page 18 of 18