[2022] UGPPDPAAT 16

#### THE REPUBLIC OF UGANDA

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

#### APPLICATION NO. 17 OF 2022

#### **BETWEEN**

## MBJ TECHNOLOGIES LIMITED::::::::::::::::::::::::::::::::::::

#### AND

- 1. MBARARA CITY - 2. UB CONSULTING ENGINEERS LTD IN JV WITH PROFESSIONAL ENGINEERING CONSULTANTS LTD - 3. JOADAH CONSULT LTD::::::::::::::::::::::::::::::::::

APPLICATION FOR ADMINISTRATIVE REVIEW IN RESPECT OF THE PROCUREMENT BY MBARARA CITY FOR THE PROVISION OF CONSULTANCY SERVICES FOR SUPERVISION OF ROADWORKS IKYAMUGORANI ROAD- 2.02KM, MUNICIPAL ACCESS ROAD-0.1KM, MOSQUE ROAD-0.55KM, LOWER CIRCULAR ROAD-0.8KM AND RUHARA ROAD-0.47KM], PROCUREMENT REF NO: MCC 825/USMID/SRVCS/20-21/00001 CLUSTER 6

# BEFORE: FRANCIS GIMARA SC, CHAIRPERSON; NELSON NERIMA; PATRICIA KAHIGI ASIIMWE; GEOFFREY NUWAGABA KAKIRA; PAUL KALUMBA; AND CHARITY KYARISIIMA, MEMBERS

Decision\_PAT Application 17 of 2022-MBJ Technologies v Mbarara City & 2 Others

#### DECISION OF THE TRIBUNAL

### A. BRIEF FACTS

- Respondent), initiated $1.$ Mbarara City Council (the $\overline{a}$ procurement for the provision of consultancy services for supervision of roadworks [Kyamugorani Road- 2.02km, Municipal Access Road-0.1km, Mosque Road-0.55km, Lower Circular Road-0.8km and Ruhara Road-0.47km], Procurement Ref No: MCC 825/USMID/SRVCS/20-21/00001 Cluster 6 using Open National Bidding Method. The bid notice was published in the *New Vision Newspaper*, on February 10, 2022. - A pre-bid meeting was conducted on February 17, 2022 where $2.$ site visits were also conducted. The deadline for bid submission was extended from March 1, 2022 to March 15, 2022. - Bids were received from 4 bidders namely MBJ Technologies $3.$ Ltd, Air; Water and Earth (AWE); UB Consulting Engineers Ltd JV Professional Engineering Consultants Ltd; and Joadah Consult Ltd on 15^th March, 2022. - Upon completion of the technical evaluation process, a Notice 4. of Best Evaluated Bidder was issued on 6^th April, 2022 with a removal date of 20^th April, 2022. The Notice indicated that Best Evaluated Bidders whose proposals should be opened for further evaluation were MBJ Technologies Ltd, UB Consulting Engineers Ltd JV Professional Engineering Consultants Ltd and Joadah Consult Ltd. The Notice also indicated that Air, Water and Earth (AWE) was disqualified for having scored 65%, below the required minimum score of 80%. - The financial proposals of MBJ Technologies Ltd, UB $5.$ Consulting Engineers Ltd and JV Professional Engineering Consultants Ltd and Joadah Consult were opened and details read out on 28^th April, 2022 indicated that UB Consulting Engineers Ltd in Joint Venture with Professional Engineering Ltd had a financial proposal of UGX Consultants $716,000,000/$ =; UB Consulting Engineers Ltd in Joint Venture

Decision PAT Application 17 of 2022-MBJ Technologies v Mbarara City & 2 Others

with Professional Engineering Consultants Ltd had a financial proposal of UGX $1,678,620,000/$ =; and Joadah Consult had a financial proposal of UGX $1,159,000,000/=$ .

- 6. Upon completion of the evaluation of the financial proposals. the 1^st Respondent issued a Notice of Best Evaluated Bidder on May 12^th 2022 with a removal date of 25^th May 2022. The Notice indicated that the Best Evaluated Bidder was UB Consulting Engineers Ltd in Joint Venture with Professional Engineering Consultants Ltd (the 2^nd Respondent) with a total contract price of UGX 1,441,020,000/ $=$ . - $7.$ The Notice of the Best Evaluated Bidder indicated that the Applicant's combined technical and financial score was 84.8% which was lower than the 85.14% that was scored by the Best Evaluated Bidder. - 8. On 23 May 2022, the Applicant submitted an application for administrative review to the Accounting Officer of the 1st Respondent. The Applicant complained about the manner of opening financial proposals; the arithmetic correction of the $2^nd$ Respondent's financial bid and failure to send the notice of best evaluated bidder to all bidders at the time of display of the Notice the Best Evaluated Bidder. - $9.$ On $2^{nd}$ June 2022, the 1^st Respondent's Accounting Officer constituted an administrative review committee to handle the administrative review application. In a report issued on 8^th June 2022, the committee found merit in the complaint about failure to send notice of best evaluated bidder to all bidders at the time of display of the notice. The committee did not find merit in the rest of the complaints. - In a letter dated 8^th June 2022, the Accounting Officer of the 10. 1^st Respondent agreed with the administrative review committee that the notice of best evaluated bidder should have been sent to all bidders at the time of display. That the display of notice of best evaluated bidder was done on 12^th May 2022

Decision\_PAT Application 17 of 2022-MBJ Technologies v Mbarara City & 2 Others

but sent to the participating bidders on 21^st May 2022. The Accounting Officer therefore upheld the recommendation of the administrative review committee and decided to give another 10 working days of display with effect from 10^th June 2022.

- 11. A second Notice of Notice of Best Evaluated Bidder was issued on 10^th June, 2022 with a removal date of 23^rd June, 2022. The Notice contained similar contents as the earlier one issued on 12^th May, 2022. - 12. The Applicant, being dissatisfied with the decision of the Accounting Officer, filed the instant application with the Tribunal on 17^th June, 2022 Under Section 89 (8) and (9), Section 91 L (1) (a), (b) and (C) of the Public procurement and Disposal of Public Assets Act, 2003 as amended and Regulation 6 of the Public Procurement (Tribunal) (Procedure) Regulations 2016, seeking review of the decision of the Accounting Officer. The application raised 2 issues for determination by the Tribunal: - 1) Whether the $1^{st}$ Respondent's display of the Best Evaluated *Bidder Notice flouted the procurement laws* - 2) Whether the $1^{st}$ Respondent erred in adopting an arithmetic error that did not disclose the source of arithmetic error as required by the ITB, showing item, Rate Quantity and amount of the arithmetic error thereby disadvantaging other bidders - 3) What remedies are available to the parties - 13. In a response filed on $22^{nd}$ June 2022, the 1^st Respondent averred that no notice of the complaint was served on the Accounting Officer; the best evaluated bidder notice was displayed in accordance with the law; and that the arithmetic errors did not contain any material deviation and were corrected in accordance with the law. - 14. In a response filed on $27^{\text{th}}$ June 2022, the $2^{\text{nd}}$ respondent averred that in correcting arithmetic errors, the evaluation committee executed its mandate in accordance with ITB 31.4 and regulation 57 of S. I No. 10 of 2014.

Decision\_PAT Application 17 of 2022-MBJ Technologies v Mbarara City & 2 Others

$\mathbf{L}$

15. The 3^rd Respondent did not file any submissions in response to the Application and did not attend the hearing

#### $\mathbf{C}$ . **THE ORAL HEARING**

- 1. The Tribunal held an oral hearing on 5^th July 2022 using the Zoom online platform. The appearances were as follows: - 1) Samuel Kakande and Kenneth Atukwatse, counsel for the Applicant. - 2) Phillip Kakuru, a director of the Applicant, attended. - 3) Timothy Arinaitwe, counsel for the Applicant. - 4) Assy Abirebe the City Clerk, Edgar Atwine the Head Procurement and Disposal Unit, Ketiijo Merina Head Works and Engineering, attended for the 1^st Respondent. - 5) Albert Mukasa, counsel for the 2^nd Respondent. - 6) David Kaddu, the Authorized Representative of the 2^nd Respondent and Charles Bakakiri, Head Engineering Division of the 2^nd Respondent attended.

#### D. **SUBMISSIONS**

1. The parties highlighted their written submissions as follows:

## **Applicant**

- 2. On issue no. 1, counsel for the Applicant submitted that the notice of best evaluated bidder was not displayed and sent to all bidders at the time of display, contrary to regulation 85 (5) of the Local Governments (Public Procurement and Disposal of Public Assets) Regulations, 2006. - 3. On issue no. 2 counsel for the Applicant sought to amend it to read, "Whether the second defendant's bid was non-responsive?". Counsel submitted that the effect of the correction of the arithmetical error was that there was a change in the best combined score, with the 2^nd Respondent emerging best instead of the Applicant who was the lowest bidder. That rectification of errors prejudiced other bidders.

#### 1^st Respondent

- 4. On issue no. 1, counsel for the 1^st Respondent submitted that the decision of the Accounting Officer that the notice of best evaluated bidder be displayed again was a corrective measure pursuant to regulation 139(5) (c) of the Local Governments (Public Procurement and Disposal of Public Assets) Regulations, 2006 and section 89(7) of the Public Procurement and Disposal of Public Assets Act. That redress has been granted to the Applicant. - 5. On issue no. 2, counsel submitted that the change of issue prejudices the 1^st respondent as it has not had the opportunity to defend itself on the same. - 6. Counsel submitted that the correction of the arithmetic error was done in accordance with the law and the bidding document. Counsel relied on regulations 74 $(3)$ , $(4)$ , $(5)$ ; 75(2) and 80 (3) (b) of the Local Governments (Public Procurement and Disposal of Public Assets) Regulations, 2006 and ITBs 29.1 and 30.2. - 7. The $2^{nd}$ Respondent associated itself with the submissions of the 1^st Respondent.

## F. RESOLUTION BY THE TRIBUNAL

#### **Preliminary issue**

$1$ The Tribunal asked the parties to address it on whether the decision of the Accounting Officer was made and communicated within the time stipulated in the Public Procurement and Disposal of Public Assets Act as amended. The Tribunal also asked the parties to address it on whether this Application was made within the time stipulated in the Public Procurement and Disposal of Public Assets Act as amended. We have duly considered the submissions made by the parties and their counsel.

Y - $2.$ The Tribunal is duty bound to inquire into the existence of the facts in order to decide whether it has jurisdiction. This is because jurisdiction must be acquired before judgment is given. See decision in K-Solutions Limited Vs. Ministry of Energy and Mineral Development, Application No.16 of 2021 - On 23^rd May 2022, the Applicant applied to the Accounting $3.$ Officer for Administrative Review. - Under Section 89 (7) of the Public Procurement and Disposal $4.$ of Public Assets Act as amended by Act 15 of 2021, the Accounting Officer must make and communicate a decision within ten (10) days of receipt of a complaint. Therefore, the Accounting Officer was bound to communicate his decision on or before the 2^nd of June 2022. However, the 1^st Respondent's Accounting Officer purported to issue his decision in a letter dated 8^th June 2022. The purported decision of the Accounting Officer was therefore issued out of time. - In the case of Super Taste Ltd V Bank of Uganda, 5. Application No. 33 of 2021, this Tribunal held that a decision issued out of time is "a blatant breach of the law and no decision at all." The purported decision of the Accounting Officer was therefore null and void. - Under section 89(8) of the Public Procurement and Disposal of 6. Public Assets Act as amended, where an Accounting Officer does not make a decision within the specified period, a bidder may make an application to the Tribunal. Under section 91 I (2) (b), of the Public Procurement and Disposal of Public Assets Act as amended, such application to the Tribunal shall be made within ten (10) days from the date of expiry of the period within which the Accounting Officer should have communicated his decision. - The days contemplated under sections 89 (8) and 91I (2) (b) of $7.$ the Public Procurement and Disposal of Public Assets Act as

Decision\_PAT Application 17 of 2022-MBJ Technologies v Mbarara City & 2 Others

$\overline{7}$

amended are not working days but calendar days. See Application No.04 of 2022 JV KADAC-GLOBETEC VS Uganda Prison Services.

- In the instant case, the ten (10) days started running from 3^rd 8. June 2022 and expired on 12^th June 2022, which was a Sunday. The next working day was Monday 13^th June 2022. Applicant, therefore, should have submitted the The application to the Tribunal on or before 13^th June 2022. The Applicant filed this application to the Tribunal on 17^th June 2022 and was therefore time barred. - 9. The Tribunal has previously held that the provisions in the Public Procurement and Disposal of Public Assets Act are mandatory. See Super Taste Ltd V Bank of Uganda, Application No. 33 of 2021, and APA Insurance Uganda Limited V. Uganda National Roads Authority, Application No. 2 of 2022. - The Tribunal relies on the Supreme Court decision in 10. Galleria in Africa Ltd versus Uganda Electricity Distribution Company Ltd (Civil Appeal-2017) [2018] UGSC **19** where court held that:

"......there's no way the Act can regulate practices in respect of public procurement and disposal of public assets unless if the provisions are adhered to strictly to the letter. The provisions cannot be directory merely. They are for all purposes and intents mandatory and noncompliance with them makes the proceedings fatal".

- Counsel for the Applicant submitted that this application was 11. premised on section 91I (1) (b) of the Public Procurement and Disposal of Public Assets Act as amended, which has no time limit - Counsel relied on Application No. 20 of 2021-Obon 12. Infrastructure Development JV v Mbarara City & Another.

Decision\_PAT Application 17 of 2022-MBJ Technologies v Mbarara City & 2 Others

$\rightarrow$

- There are only five instances under which the Tribunal can 13. exercise its jurisdiction. These instances are provided for under sections 89(8), 89(9) and 91I(1) (a), (b) and (c) of the Public Procurement and Disposal of Public Assets Act, 2003 as amended by Act 15 of 2021 namely: - a) under sections 89 (8) and $91I(1)(a)$ , where an Accounting Officer does not make a decision or communicate a decision within ten days as required under section 89 (7), or; - b) under section 91I (1)(a), where a bidder is not satisfied with the decision made by the Accounting Officer under section 89 $(7)$ , or: - c) under section 911 (1) (b), where a person's rights are adversely affected by a decision made by the Accounting Officer, or; - d) under sections $89(9)$ and $911(1)(c)$ , where a bidder believes that the Accounting Officer has a conflict of interest in respect of the complaint, omission or breach; or - e) under sections 89(9) and 91I (1)(c), where a bidder believes that the matter cannot be handled impartially by the procuring and disposing entity. - With respect we do not agree that the Applicant is "a person" $14.$ envisaged under section 911 (1) (b) of the Public Procurement and Disposal of Public Assets Act, 2003 as amended by Act 15 of 2021. The Applicant applied for administrative review to the Accounting Officer as a bidder. Being dissatisfied with the decision of the Accounting Officer, the Applicant filed the instant application before the Tribunal. The Applicant is still a bidder as defined under section 3, section 89 (1), (2), and section 911 (1) (a) of the Public Procurement and Disposal of Public Assets Act, 2003 as amended by Act 15 of 2021. This application does not qualify as an application to the Tribunal under section 911 (1)(b) of the *Public Procurement and Disposal* of Public Assets Act, 2003 as amended by Act 15 of 2021.

$\mathcal{L}$

- In Tribunal Application No. 9 of 2020 K-Solutions Limited 15. versus Attorney General and Public Procurement and Disposal of Public Assets Authority, the Applicant's bid had expired and their counsel contended that the Applicant had filed the application not as a bidder but as *any person whose rights are* adversely affected by a decision made by the Authority, pursuant to the then section 911 (3) of the Public Procurement and Disposal of Public Assets Authority Act. The Tribunal did not agree. The Applicant had applied, as a bidder, to the Authority for administrative review challenging the refusal of the Accounting Officer to handle the complaint. We held that, being aggrieved by the Authority's decision, the Applicant could only appeal to the Tribunal as a bidder under the then section 91 I (1) of the Public Procurement and Disposal of Public Assets Authority Act. - It is our finding that having failed to make an application to the 16. Tribunal as a bidder within the time prescribed under section 911 (1) (b) of the Public Procurement and Disposal of Public Assets Act as amended, the Applicant cannot now turn around and purport to appeal as a person whose rights are adversely affected by a decision made by the Accounting Officer as envisaged under section 911 (1) (b). An Applicant to the Tribunal under section 911 (1) (b) cannot have two or interchangeable faces; one as a bidder and at the same time as a person whose rights are adversely affected by a decision made by the Accounting Officer. - Regarding the case of Application No. 20 of 2021-Obon 17. Infrastructure Development JV v Mbarara City & Another which was relied upon by counsel for the Applicant, we wish to note that the Applicant deliberately avoided to reveal that the said decision was appealed, and reversed by the High Court vide Civil Appeal no. 45 of 2021- Mbarara City & MBJ Technologies Limited versus Obon Infrastructures Development JV; in which the Applicant was the 2nd Appellant. - 18. The import of the High Court Decision Civil Appeal No. 45 of 2021-Mbarara City & MBJ Technologies Limited versus Obon *Infrastructures Development JV,* the High Court at pages 19-20, is

Decision\_PAT Application 17 of 2022-MBJ Technologies v Mbarara City & 2 Others

that section 91I(1) (b) of the Public Procurement and Disposal of Public Assets Act, 2003 does not apply and cannot be taken benefit of, by a bidder.

Counsel for the 1^st Respondent also made reference to the 19. constitutional provision on technicalities. Article 126 (2) (e) of Constitution requires that substantive justice be the administered without undue regard to technicalities, but subject to the law. Article 126(2) (e) of the Constitution is no license for ignoring the existing law.

## See: Kasirye, Byaruhanga and Co Advocates v Uganda Development Bank, SCCA No. 2 of 1997.

- We have no residual or inherent jurisdiction to enlarge a period 20. laid down by statute. See: Makula International Ltd versus Cardinal Nsubuga & Another Civil Appeal No. 4 of 1981. Also, see Tribunal Application no. 14 of 2022-Samanga Solutions Limited versus Uganda Wildlife Authority. - The Tribunal has determined that this application is time 21. barred, and we do not have jurisdiction to inquire into its merits.

## G. DISPOSITION

- 1. This Application is struck out. - 2. The Tribunal's suspension order dated 20^th June 2022 is vacated. - 3. Each party to bear its own costs.

Dated at Kampala this 8^th day of July, 2022.

FRANCIS GIMARA, SC **CHAIRPERSON**

BIIIImia

**NELSON NERIMA MEMBER**

PATRICIA KAHIGI ASIIMWE **MEMBER**

PAUL KALUMBA **MEMBER**

**GEOFFREY NUWAGIRA KAKIRA MEMBER**

$$

**CHARITY KYARISIIMA MEMBER**