[2024] UGPPDPAAT 30

### THE REPUBLIC OF UGANDA

## PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC ASSETS **APPEALS TRIBUNAL**

### APPLICATION NO. 27 OF 2024

### **BETWEEN**

CRJE (EAST AFRICA) LTD::::::::::::::::::::::::::::::::::::

### AND

### NATIONAL COUNCIL FOR HIGHER EDUCATION:::::::RESPONDENT

**APPLICATION** FOR REVIEW IN RESPECT OF THE PROCUREMENT FOR THE CONSTRUCTION OF NATIONAL COUNCIL FOR HIGHER EDUCATION MAIN BUILDING OFFICES UNDER PROCUREMENT REFERENCE NUMBER: NCHE/WRKS/23- $24/001$

BEFORE: FRANCIS GIMARA S. C CHAIRPERSON; NELSON NERIMA: ENG. THOMAS BROOKES ISANGA: GEOFFREY NUWAGIRA KAKIRA; PAUL KALUMBA; CHARITY KYARISIIMA; AND KETO KAYEMBA, MEMBERS

### DETAILED DECISION OF THE TRIBUNAL

#### $A.$ **BRIEF FACTS**

- 1. National Council for Higher Education (the **Respondent**) initiated a tender for construction of National Council for Higher Education Main Building Offices under Procurement Number: NCHE/WRKS/23-24/001 Reference using open bidding method on January 25, 2024. - $2.$ The Respondent received bids from $6$ (six) bidders namely: CRJE (East Africa) Ltd (the Applicant), Seyani Brothers and Company (U) Ltd, Ambitious Construction Company Ltd, Excel Construction Ltd, China National Aero-Technology International Engineering Corporation and Roko Construction Ltd. - 3. Upon the Conclusion of the evaluation process, the Respondent issued a Notice of Best Evaluated Bidder on April 2, 2024. indicating that CRJE East Africa Ltd was the successful bidder at a contract price of UGX 123,089,038,802/ $=$ . - $4.$ On 12^th April 2024, a whistle blower **Mr. Mujuzi Alex** filed a complaint with the *Public Procurement and Disposal of Public* Assets Authority alleging irregularities in the procurement process. - 5. On 7^th May 2024, the *Public Procurement and Disposal of Public* Assets Authority (hereinafter referred to as the "**Authority**") issued a report on the alleged irregularities in the impugned procurement process to the Accounting Officer of the Respondent and recommended that the Respondent conducts a re-evaluation of the bids in accordance with the law. - 6. On 8^th May 2024, the Respondent's Accounting Officer wrote to the Executive Director of the *Public Procurement and Disposal of* Public Assets Authority and requested the Authority to reconsider its recommendation to have the bids re-evaluated and for guidance on how the project can be implemented within the financial year $2023/24$ .

- $7.$ On May 9, 2024, the Executive Director of the Public *Procurement and Disposal of Public Assets Authority wrote back* to the Respondent's Accounting Officer. advising the Respondent to re-evaluate all the bids with consideration to what is a material and non-material deviation. The Authority also guided the Respondent to consider reducing the period for the display of the Notice of Best Evaluated Bidder from ten to five working days. - 8. On 9^th May 2024, the Contracts Committee of the Respondent convened a special sitting in which it discussed the investigation report and correspondents from the Authority and resolved to cancel the Notice of Best Evaluated Bidder issued in favour of CRJE (East Africa) Ltd, and further adopted the recommendation by the Authority, to have all the bids reevaluated. - $\overline{Q}$ On May 9, 2024, the Accounting Officer of the Respondent in a letter addressed to all bidders, communicated the cancellation of the best evaluated bidder notice that was issued on April 2. 2024, and informed them of the re-evaluation that is to be conducted - $10.$ On 13^th May 2024, the Applicant in a letter addressed to the Accounting Officer of the Respondent, requested the Respondent to share with them, a copy of the complaint raised by the whistle blower and the report from the Authority that formed the basis of the Respondent's decision to re-evaluate the bids. - $11.$ On May 13, 2024, the Respondent shared with the Applicant. copy of the complaint raised by the whistle blower and the report from the Authority. - 12. On May 15, 2024, the Applicant filed a complaint to the Accounting Officer of the Respondent, challenging the decision to cancel the best evaluated bidder notice that was issued on April 2, 2024.

- 13. On May 24, 2024, the Accounting Officer of the Respondent dismissed the compliant for lacking merit. - $14.$ The Applicant being aggrieved by the decision of the Accounting Officer, filed the instant application with the Tribunal on May 29, 2024, seeking to review the decision of the Respondent.

#### $\mathbf{B}$ . APPLICANT'S SUBMISSIONS

- $\overline{1}$ The Applicant submits that the Evaluation Committee acted within its mandate as dictated by the law and practice when it corrected the arithmetic errors in its bid. On the other hand, it is the Applicant's case that the Respondent's Accounting Officer acted illegally in cancelling the BEB notice and ordering a reevaluation of the bids. - $2.$ The Applicant submits that the bidding process is not open to members of the public or any busybodies like whistleblowers to interfere with while the said process is still ongoing. In this case, whereas the Authority went ahead to entertain the whistle-blower's complaint, the same was time barred since it was not filed within 10 working days. - 3. The Applicant further submits that the Authority may only make recommendations where there is persistent breach of the Act, Regulations and Guidelines. In the instant case, there is no indication that the Respondent or its Evaluation Committee has persistently committed breaches warranting the Authority to make recommendations. - $4.$ The Applicant further submits that the determination of the whistleblower's complaint by the Authority was done without according it a right to be heard. In support of this position, the Applicant relies on Article 28 (1) of the Constitution of the Republic of Uganda and Election Petition Appeal No. 0027 of 2011 Kamba Saleh Moses v Hon Namuyangu Jennifer and Civil Appeal No. 89 of 1960 De souza v Tanga Town **Council**

#### $\mathbf{C}$ . **RESPONDENT'S SUBMISSIONS**

- The Respondent submits that the Tribunal does not have 1. jurisdiction to receive and consider the Applicant's application before it has made any award of contract. In support of this position, the Applicant relies on Application No. 32 of 2021 Preg-Tech Communications Limited v Uganda Police Force Application No. 32 of 2021. - $2.$ The Respondent submits that there is no valid application before the Tribunal because the Application flouted the provisions of Regulation 6 (3) and Form 1 of the Public Procurement and Disposal of Public Assets (Tribunal) (Procedure) Regulations. That the Applicant's attempt to cure the defective application by filing an amendment is untenable since this procedure is not prescribed by the applicable procurement laws. - 3. With respect to the conduct of the Evaluation Committee, the Respondent submits that the committee did not act within the current law in allowing a correction of arithmetic errors and waiving essential licensing requirements as outlined in the bidding document that constitute a material deviation. The Respondent relies on the decision in **Constitutional Appeal** No. 3 of 2007 Ismael Dabule & 2 Ors v Attorney General & **Anor** in support of its submissions. - $4.$ The Respondent submits that the correction of the Applicant's bid price from UGX.19,581,257,271 to UGX 23,089,038,802/ $=$ which represented a 17% adjustment tantamounted to a material deviation within the meaning of the PPDA (Evaluation) Regulations, 2023. - 5. The Respondent further submits that the Authority has the mandate to receive and investigate a whistleblowers complaint in respect of a procurement process and advise the procuring entity to take corrective measures based on the findings.

The Applicant relied on Sections 7 (1) (a), 8 (1) (e) and 9 (1) (a) of the Public Procurement and Disposal of Public Assets Act, 2003 in support of its submissions.

6. The Respondent went on to add that a complaint by a whistleblower is not subject to the same constraints and conditions applicable to a complaint by a bidder(s). As such, the complaint was properly lodged with the Authority and investigated in accordance with the law.

#### D. ORAL HEARING

- $1.$ The Tribunal held an oral hearing on May 14, 2024, via Zoom videoconferencing application. The appearances were $as$ follows: - $1)$ Mr. Odele Anthony represented the Applicant as Counsel. In attendance were Lui Qiang the Country Representative of CRJE (East Africa) Ltd, and Ivan Kambo Mutebi the Chief Quantity Surveyor of the Applicant. - $2)$ Mr. Ali Kankaka represented the Respondent as Counsel. In attendance were Fiona Kunihira, the Senior Legal Officer, Irene Nasaka the Legal Officer and Harriet Kabuuka the Procurement Officer of the Respondent.

#### $E$ . **RESOLUTION**

- $1.$ The Application and the Response to the Application raised 5 grounds or issues that the Tribunal has framed as follows: - $\overline{1}$ ) Whether the Tribunal has jurisdiction to determine the instant application? - $2)$ Whether the decision of the Respondent's Accounting Officer was *made within statutory timelines?* - $3)$ Whether the investigation by the Public Procurement and Disposal of Public Assets Authority was lawful? - $4)$ Whether the Respondent's decision to cancel the best evaluated *bidder notice of April 2, 2024, was lawful?* - *What remedies are available to the parties?* $5)$

Issue No.1:

# Whether the Tribunal has jurisdiction to determine the *instant application?*

- $2.$ Section 911 (3) (a) of the Public Procurement and Disposal of **Public Assets Act 2003** states that for the avoidance of any doubt, a decision by a procuring and disposing entity to reject or cancel any or all bids prior to award of a contract under section 75 of the Act shall not be subject to review by this Tribunal. - $3.$ Section 75(1) of the Public Procurement and Disposal of **Public Assets Act 2003** provides that a procuring and disposing entity may, on the approval of the Contracts Committee, cancel a procurement process or a disposal process at any time, before a contract is awarded to the Best Evaluated Bidder, as may be prescribed. - The Tribunal can only lack jurisdiction when it satisfies itself that $4.$ the purported cancellation was conducted in full accordance and compliance with the **Public Procurement and Disposal of Public** Assets Act 2003 - 5. In Kingdom Kampala versus Judicial Service Commission **Application 34 of 2022**, the Tribunal held that it has jurisdiction to inquire into the decision-making process leading to the cancellation in order to determine whether there is a valid cancellation within the meaning of section 75 of the **Public** Procurement and Disposal of Public Assets Act, 2003 as amended. - $6.$ The Respondent contended that the cancellation of the notice of Best Evaluated Bidder of April 2, 2024, resulted into no award of contract being made, consequently rendering the instant application to be outside the purview of the Tribunal. - $\overline{7}$ . We perused the procurement action file submitted by the Respondent and observed that on May 9, 2024, a special sitting of the Respondent's Contracts Committee held under Minute5/SCC/2023-4, resolved to cancel the best evaluated

bidder notice issued to the Applicant and to adopt the recommendation from the authority to re-evaluate the bids.

- 8. Once the Contracts Committee lawfully sat on March 28, 2024. adjudicated and approved the recommendations by the Evaluation Committee to award the contract to CRJE (East Africa) Ltd under Minute 150/14CC/2023-24, the Contracts committee became *functus* officio to the said procurement process. See **sections** $28(1)(a)$ and $29(1)(c)$ of the **Public** Procurement and Disposal of Public Assets Act 2003, read together with regulation 11(2) of the Public Procurement and Disposal of Public Assets (Procuring and Disposing **Entities) Regulations 2023.** - 9. At the hearing, Harriet Kabuuka the Procurement Officer of the Respondent informed the Tribunal that the Procurement and Disposal unit did not make any submissions to the Contracts Committee at its sitting of May 9, 2024, and that the Chairperson of the Contracts Committee had copies of the Recommendation of the Authority together with related correspondences and convened the meeting on his own initiative. - $10.$ The Tribunal has recently guided that a Contracts Committee cannot initiate its own requests regarding a procurement process. The Contracts Committee must and only acts on requests made to it by the Procurement and Disposal Unit using the appropriate Forms specified in the Regulations. See Application No. 45 of 2022: Impiger Technologies Put Ltd Versus Higher Education Students Financing Board, page 12, para 16-17 - $11.$ The rationale for specific requests made in submissions of the Procurement and Disposal Unit is premised on the fact that the Contracts Committee is mandated to consider each request based on the information contained in the Form submitted by the entity and the supporting documents and may approve or reject the request. See section 28(1)(a) of the Public Procurement and Disposal of Public Assets Act 2003, Reg

### 11(1) and 11 (2) of the Public Procurement and Disposal of **Public** Assets (Procuring and Disposing **Entities** Regulations, 2023.

- 12. In the absence of a specific request from the Procurement and Disposal Unit using the appropriate Forms specified in the Regulations. to the Contracts Committee regarding recommendations made by the Authority, the Contracts Committee had no legal basis of convening a sitting on May 9, 2024. It therefore follows that the Contracts Committee unlawfully convened itself and illegally purported to revoke the Notice of Best Evaluated Bidder of April 2, 2024. - $13.$ Further, there was no cancellation of bids as envisaged under section 75(1) of the Public Procurement and Disposal of **Public Assets Act 2003.** Instead, it was a purported attempt by the Respondent's Contracts Committee, to revoke and vacate the Notice of Best Evaluated Bidder of April 2, 2024, which action we have found to have been done without any legal basis and therefore erroneous. - $14.$ The act of revoking and vacating the Notice of Best Evaluated Bidder by a procuring and disposing entity is not the same as and does not amount to cancellation of bids as envisaged under section 75(1) of the Public Procurement and Disposal of Public Assets Act 2003. - 15. Cancellation as used in the cited provision, is to bring to a complete end or indefinitely call off the continuation of the successive stages in the procurement cycle including planning. choice of procedure, measures to solicit offers from bidders, examination and evaluation of offers, award of contract, and contract management. - 16. Having found that there was no cancellation of a procurement process but instead a revocation of the Notice of Best Evaluated Bidder of April 2, 2024 so as to pave way for the re-evaluation of bids as advised by the Authority, it therefore follows that the instances provided for in **section 91I (3) (a)** read together with section 75(1) of the Public Procurement and Disposal of **Public Assets Act 2003** do not arise and apply.

The Tribunal therefore has jurisdiction to determine the instant 17. Application.

#### 18. This issue is resolved in the affirmative

### Issue No.2:

# Whether the decision of the Respondent's Accounting Officer was made within statutory timelines?

- 19. The law requires an Accounting Officer to mandatorily, within ten days of receipt of a complaint, make and communicate a decision, in writing, addressed to the bidder who makes the complaint, indicating the reasons for the decision taken and the corrective measure to be taken, if any. See **section 89(7)** of the Public Procurement and Disposal of Public Assets Act 2003 read together with **Regulation 8** of the **Public Procurement** and Disposal of Public Assets (Administrative Review) Regulations 2023. - The said 10 days commenced on May 16, 2024 (since the $20.$ Complaint was received on May 15, 2024) and elapsed on May 25, 2024. - Accounting Officer made and communicated 21. The her administrative review decision on May 24, 2025, within the timelines prescribed in law.

#### 22. This issue is resolved in the affirmative.

### Issue No.3:

# Whether the investigation by the Public Procurement and Disposal of Public Assets Authority was lawful?

The Applicant contended that Public Procurement and Disposal 23. of Public Assets Authority (the Authority) did not grant them an opportunity to exercise their right to a fair hearing during its

investigations and that the recommendation of the Authority are illegal.

- $24$ The Respondent contended that the Authority acted within its mandate to receive, investigate, and recommend corrective action in respect of a bid process under review. - $25.$ The Authority in its report dated May 7, 2024, indicated that its investigation is premised on section 8(1) (e) of the Public Procurement and Disposal of Public Assets Act 2003, with the objective of establishing facts on the allegations.

26. Section 8 (1) of the Public Procurement and Disposal of **Public Assets Act 2003**, provides as follows:

# 8. Powers of the Authority.

(1) In the exercise of its regulatory function under **section 7 (j)**, the Authority shall have power to—

(a) require any information, documents, records and reports in *respect of a procurement or disposal process;*

(b) call for the production of books of accounts, plans or documents:

(c) institute procurement and disposal contract and performance audits;

(d) cause to be inspected any procurement or disposal transaction to ensure compliance with a bid award by a procuring and disposing entity:

(e) investigate and act on complaints received on a procurement or disposal process from members of the public, that are not subject to administrative review or review by the Tribunal; and

(*f*) suspend a provider from engaging in any public procurement or disposal process, in accordance with section 94.

27. It is important to note that the exercise of powers of the Authority under section 8(1)(a)-(f) of the Public Procurement and Disposal of Public Assets Act 2003, are regulatory in nature and are specifically derived from section 7 (j) of the Public Procurement and Disposal of Public Assets Act **2003**, which is reproduced as follows:

7. Functions of the Authority.

- (1) *The functions of the Authority are to—* - advise procuring and disposing entities on the application of $a)$ this Act and regulations and guidelines made under the Act; - $b)$ monitor and report on the performance of the public *procurement and disposal systems in Uganda and advise on desirable changes;* - advise competent authorities on standards for procurement $c)$ education and training, competence levels and certification requirements: - $d)$ prepare, update and issue authorized versions of the standardized bidding documents, procedural forms and any other attendant documents to procuring and disposing entities: - $e)$ ensure that any deviation from the use of the standardised bidding documents, procedural forms and any other attendant documents is effected only after the prior, written approval of the Authority: - issue guidelines under section 97 of this Act; $\mathfrak{f}$ - organise and maintain a system for the publication of data $q)$ on public procurement and disposal opportunities, awards and any other information of public interest as may be determined by the Authority; - $h$ maintain a register of providers of works, services and supplies: - $i$ conduct periodic inspections of the records and proceedings of the procuring and disposing entities to ensure full and *correct application of this Act;* - $i$ institute- - (i) procurement or disposal audits during the bid *preparatory process;* - (ii) contract audits in the course of the execution of an awarded bid; and - (iii) performance audit after the completion of the contract in respect of any procurement or disposal, as may be required; EMPHASIS ADDED - 28. It is therefore clear from the reading of **section 7** (j) of the Public Procurement and Disposal of Public Assets Act that exercise of the regulatory function of the Authority under

section 8 should **strictly fall** within the four corners of **section** 7 (j) (i)-(iii) of the Act. There must be an audit ongoing before the Authority can conduct an investigation under section $8(1)$ (e) or exercise any other powers under section $8$ (1). The Head of the Procurement and Disposal Unit confirmed at the hearing that there was no audit conducted by the **Public Procurement** and Disposal of Public Assets Authority. In the premises, there was no legal basis for the impugned investigation.

- 29. It is our finding that the four corners of **section 7 (j)(i)-(iii)** of the Public Procurement and Disposal of Public Assets Act do not envisage the conduct of investigations of any kind in successive stages in the procurement cycle specifically **receipt** of offers from bidders, examination, and evaluation of those offers and award of contract but only as specifically provided under section 7 (j)(i)-(iii). - 30. The Public Procurement and Disposal of Public Assets Authority may of course carry out its statutory role to generally advise and monitor procuring and disposing entities under section 7 of the Public Procurement and Disposal of Public Assets Act. Advising and monitoring does not extend to adjudication of procurement-related complaints which should be done under administrative review. - 31. The jurisdiction to adjudicate procurement related complaints is vested in the Accounting Officer under section 89 of the Public Procurement and Disposal of Public Assets Act **2003**. A bidder or interested person who is aggrieved by the decision of the Accounting Officer may apply to the Public Procurement and Disposal of Public Assets Appeals Tribunal under section 911 of the Act for review of the decision. A final appeal lies to the High Court under section 91M of the Act, but only on points of law. - 32. A person who has not participated in a procurement or disposal process but nonetheless feels that his/her rights are adversely affected by a decision made by the Accounting Officer is

permitted under the **Public Procurement and Disposal of Public Assets Act 2003** to directly file the Application with the Tribunal and not the Authority. See **Section 91I(1)(b)** of the Public Procurement and Disposal of Public Assets Act 2003, Mbarara City and MBJ Technologies Vs Obon Infrastructure Development JV, High Court, Civil Appeal No. 45 of 2021 and PAT Application No. 21 of 2022, Tumwebaze Stephen Kiba Vs. Mbarara City, UB Consulting Engineers Ltd in JV with Professional Engineering Consultants Ltd.

- 33. Even where there is a lawful investigation under section 8, the recommendations of the Public Procurement and Disposal of Public Assets Authority, arising out of a "complaint" after a publication of a notice of best evaluated bidder, are advisory and cannot be the basis for altering the outcome of a procurement or disposal process unless the complainant successfully applies for administrative review to the Accounting Officer or the Tribunal. See Application No. 25 Of 2024-Achelis Uganda Ltd Vs Ministry Of Lands, Housing And Urban Development, page 8-9, para 22-23 - 34. The Accounting Officer is statutorily bound to investigate complaints by providers, submitting a copy of any complaints and reports of the findings to the Authority. See sections 26(1)(h), (i), and 89 (7) of the Public Procurement and Disposal of Public Assets Act, and Regulation 8 of the Public Procurement and Disposal of Public Assets (Administrative Review) Regulations 2023 - 35. It therefore follows that the guidance from the Authority did not absolve the Accounting Officer of her statutory responsibility for the execution of the procurement and disposal process in the procuring and disposing entity, in accordance with the law, and also to independently investigate the complaint by the Applicant. The Accounting Officer failed in her duty to independently investigate the complaint by the Applicant and instead chose to rubber stamp the guidance from the Authority.

# See Applications No. 21 of 2023, EAA Company Ltd v Uganda National Bureau of Standards page 21, para 55.

36. The upshot of our finding is that the Accounting Officer therefore erred in law when she determined that the Authority acted within its mandate to receive, investigate, and recommend corrective action in respect of a procurement process under review when it is outside the four corners of section 7 (i)(i)-(iii) of the **Public Procurement and Disposal of** Public Assets Act 2003. The Authority's recommendations could not be the basis for altering the outcome of impugned procurement process.

#### 37. This issue is resolved in the negative.

### Issue No.4:

# Whether the Respondent's decision to cancel the best evaluated bidder notice of April 2, 2024, was lawful?

38. The Tribunal's findings in No. 1 and 3 resolve and dispose of issue No.4. There is no need to resolve this issue.

# Issue No.5: What remedies are available to the parties?

- 39. The Applicant successfully proved that the impugned cancellation of the best evaluated bidder notice of April 2, 2024, was erroneous and unlawful. - 40. The Tribunal shall refers the matter back to the entity for further proceedings not inconsistent with the law and this decision.

### Obiter Dicta

41. Before we take leave of this Application, we would like to address a legal issue that arose out of interpretation of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2023 on correction of arithmetic errors in financial bids.

- 42. The Authority in its letter to the Respondent on May 7, 2024, determined that the evaluation committee connived with CRJE (East Africa) Ltd to change its bid price from UGX 19,581,257,271 to UGX 23,089,038,802, on the basis that correction of arithmetic errors in financial proposals is no longer permitted under the **Public Procurement and Disposal** of Public Assets (Evaluation) Regulations 2023. - 43. **Regulation 21(2)(a)** of the *Public Procurement and Disposal* of Public Assets (Evaluation) Regulations 2014 specifically provided for correction of arithmetic errors. - 44. Regulation 21 of the **Public Procurement and Disposal of** Public Assets (Evaluation) Regulations 2023, does not specifically provide for correction of arithmetic errors. However, regulation 21 $(1)$ (c) allows the Evaluation Committee to make adjustments for any deviation that is not a material deviation, using regulation 7. Regulation 7 permits correction of nonconformities and omissions which are not material. - 45. Regulation 21(2) of the **Public Procurement and Disposal of** Public Assets (Evaluation) Regulations 2023 mandates the Evaluation Committee in conducting a financial comparison of the bids, to determine whether the financial bids are complete and make adjustments for any deviation that is not a material deviation, using regulation 7. - 46. Regulation 12 (1) (c) of the **Public Procurement and Disposal** of Public Assets (Evaluation) Regulations 2023 requires the Evaluation report to indicate the evaluated price of each bid, following any corrections or adjustments to the price. - 47. Form 14 for the Evaluation Report under technical compliance method and Form 16 for the Technical Evaluation Report under the Quality and Cost Based Evaluation as prescribed under the Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2023, all still contain the following phrase "describe the correction of **any arithmetic errors**,

application of any discounts, adjustments made for any nonmaterial nonconformities, errors or omissions, conversion to a *common currency and application of any margin of preference".*

48. In our view, an Evaluation Committee in determining whether the financial bids are complete, may subject financial proposals to verification to ascertain the accuracy of unit prices, quantities, total prices, words, and figures used. Where nonconformities and omissions are detected in the financial bid. then the Evaluation Committee may determine that the financial bid is not complete and then go ahead to subject it to the procedure prescribed in regulation 7 in accordance with the instructions to bidders in the bidding document.

- 49. The exercise of this discretion by the Evaluation Committee under regulation 7 of the **Public Procurement and Disposal of** Public Assets (Evaluation) Regulations 2023, is like the correction of arithmetic errors that was hitherto provided for under Regulation 21(2)(a) of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014, but this time, it is subject to the determination of whether the intended correction is a material deviation or non-material deviation. - 50. The wide discretion given to the Evaluation Committee under regulations 7 and 21 of the **Public Procurement and Disposal** of Public Assets (Evaluation) Regulations 2014 is wide enough to cover correction of arithmetic errors.

#### $\mathbf{F}$ . **DISPOSITION**

- 1. The Application is allowed. - $2.$ The impugned cancellation of the best evaluated bidder notice of April 2, 2024, is set aside. - $3.$ The Tribunal hereby remits the procurement back to the Respondent for further proceedings not inconsistent with the law and this decision. - $4.$ The Tribunal's suspension order dated 29^th May 2024 is vacated. - 5. The Respondent shall refund the administrative review fees paid by the Applicant. - $6.$ Each party shall bear its own costs.

Dated at Kampala this 20^th day of June 2024.

$\n *none*\n$

**FRANCIS GIMARA S. C CHAIRPERSON**

THOMAS BROOKES ISANGA **MEMBER**

PAUL KALUMBA **MEMBER**

**NELSON NERIMA MEMBER**

GEOFFREY NUWAGIRA KAKIRA **MEMBER**

tuning

**CHARITY KYARISIIMA MEMBER**

**KETO KAYEMBA MEMBER**

page 18 of 18 Decision for PPDA Appeals Tribunal Application No. 27 of 2024- CRJE (East Africa) Ltd v National Council for Higher Education