[2022] UGPPDPAAT 20

### THE REPUBLIC OF UGANDA PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC ASSETS APPEALS **TRIBUNAL**

#### APPLICATION NO. 21 OF 2022

#### **BETWEEN**

TUMWEBAZE STEPHEN KIBA ====================APPLICANT

#### AND

- 1. MBARARA CITY - 2. UB CONSULTING ENGINEERS LTD IN JV WITH PROFESSIONAL ENGINEERING CONSULTANTS LTD ===================RESPONDENTS

APPLICATION FOR REVIEW IN RESPECT OF THE PROCUREMENT FOR PROVISION OF CONSULTANCY SERVICES FOR SUPERVISION OF ROAD WORKS ON KYAMUGORANI ROAD (2.02 KM), MUNICIPAL ACCESS ROAD (0.1 KM), MOSQUE ROAD (0.55KM), LOWER CIRCULAR ROAD (0.8 KM) AND RUHARA ROAD (0.47 KM); PROCUREMENT REFERENCE NUMBER MCC 852/USMID/WRKS/21-22/00001/CLUSTER 6.

BEFORE: FRANCIS GIMARA S. C, CHAIRPERSON; NELSON NERIMA; PATRICIA K. ASIIMWE; GEOFFREY NUWAGIRA KAKIRA; PAUL KALUMBA; AND CHARITY KYARISIIMA, MEMBERS

Decision for Application No. 21 of 2022-Tumwebaze Stephen Kiba v Mbarara City. Page 1 of 16

$d$

## DECISION OF THE TRIBUNAL

#### A. BRIEF FACTS

- On 10^th February 2022, the 1^st Respondent (the Entity) $\mathbf{1}$ advertised a tender for the provision of consultancy services for supervision of road works on Kyamugorani Road (2.02 Km), Municipal Access Road (0.1 Km), Mosque Road (0.55km), Lower Circular Road (0.8 Km) and Ruhara Road (0.47 Km) under Procurement Reference Number **MCC** 852/USMID/WRKS/21-22/00001/Cluster 6. - 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. - Proposals were received from 4 bidders namely MBJ $3.$ Technologies Ltd, Air, Water and Earth (AWE), UB Consulting Engineers Ltd in JV with Professional Engineering Consultants Ltd, and Joadah Consult Ltd on March 15, 2022. - Upon completion of the technical evaluation process, the Notice $4.$ of Best Evaluated Bidder (NOBEB) was displayed on April 6, 2022, with a date of removal being April 20, 2022. The Notice indicated that the Best Evaluated Bidders whose financial proposals should be opened for further evaluation were; MBJ Technologies Ltd, UB Consulting Engineers Ltd in JV with Professional Engineering Consultants Ltd, and Joadah Consult Ltd. The NOBEB indicated that Air, Water and Earth (AWE) was disqualified for having scored 65%, below the required minimum score of 80%. - The financial proposals of the three bidders; MBJ Technologies 5. Ltd, UB Consulting Engineers Ltd JV Professional Engineering Consultants Ltd and Joadah Consult were opened and details were read out on April 28, 2022, indicating that MBJ Technologies Ltd had $\overline{a}$ financial proposal of **UGX** 716,000,000/=, UB Consulting Engineers Ltd in JV 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/ $=$ .

Decision for Application No. 21 of 2022-Tumwebaze Stephen Kiba v Mbarara City. Page 2 of 16

- Upon completion of the evaluation of the financial proposals, the 6. Best Evaluated Bidder Notice was displayed on May 12, 2022, with a date of removal being May 25, 2022. The Notice indicated that the Best Evaluated Bidder was UB Consulting Engineers Ltd in JV with Professional Engineering Consultants Ltd with a total contract price of UGX $1,441,020,000/=$ . - $7.$ The Notice of Best Evaluated Bidder (NOBEB) indicated that MBJ Technologies Ltd's combined technical and financial score was 84.8% and UB Consulting Engineers Ltd in JV Professional Engineering Consultants Ltd's score was 85.14%. - Following an application for administrative review by MBJ 8. Technologies Ltd to the Accounting Officer of the 1st Respondent, the Accounting Officer decided to give another 10 working days of display of the Notice of Best Evaluated Bidder with effect from 10th June 2022. - A second NOBEB was displayed on June 10, 2022, with a date 9. of removal being June 23, 2022. The NOBEB contained similar contents as the earlier one issued on May 12, 2022.

#### APPLICATION TO THE TRIBUNAL $B.$

- Tumwebaze Stephen Kita, a resident of Rwebikoona Village, $1.$ Kamukuzi Parish, in Mbarara Municipality, Mbarara City filed application with the Tribunal on July 6, 2022, under section $91I(1)(a)(b)$ and (c) of the *Public Procurement* and Disposal of Public Assets Act 2003 as amended. - The Applicant stated that he has a strong interest in the tender $2.$ and kept checking on the progress of the procurement. That on 13^th June 2022 he found at Mbarara's City procurement Notice Board a best evaluated Bidder Notice, which showed that UB Consulting Engineers Ltd in JV with Professional Engineering Consultants Ltd had emerged as the best evaluated bidder with a total contract price of UGX. 1,441,020,000 exclusive of VAT. That the Applicant found this figure to be astronomical. That public interest would require that the contract be awarded to the lowest bidder so as to save tax payer's money.

Decision for Application No. 21 of 2022-Tumwebaze Stephen Kiba v Mbarara City. Page 3 of 16

- The Applicant averred that the arithmetic correction of the bid $3.$ of UB Consulting Engineers Ltd in JV with Professional Engineering Consultants Ltd from UGX. 1,678,620,000 to UGX. UGX. 1,441,020,000 was wrongful. - That notice of best evaluated bidder was not sent to all bidders $4.$ who participated in the procurement and no valid notice of best evaluated bidder had ever been displayed. - That as a tax payer, a resident and direct beneficiary of public $5.$ funds at the disposal Mbarara City, the Applicant is adversely affected and aggrieved by the decision of the Town Clerk to award the contract to the highest bidder instead of the lowest bidder as public interest would require. - The Applicant prayed that the Application is allowed, the 6. decision of the Accounting Officer be set aside, the 1st Respondent be ordered to re-evaluate the proposals and that the $1^st$ and $2^nd$ Respondents be ordered to pay the costs for this Application.

#### REPLY TO THE APPLICATION $\mathbf{C}$ .

# The 1^st Respondent

- The 1^st Respondent averred that the application is improper $1.$ since the Applicant is not a person aggrieved by the decision of the 1^st Respondent and therefore lacks locus standi to bring this application. - The 1^st Respondent contended that the award of the contract is $2.$ guided by principles of public procurement that involve maximising competition and achieving value for money, and not necessarily the lowest bidder. - The 1st Respondent argued that the Best Evaluated Bidder $\overline{3}$ . Notice was displayed in accordance with the law and that at the date of the Applicant filing this application, the Notice was still on display.

Decision for Application No. 21 of 2022-Tumwebaze Stephen Kiba v Mbarara City. Page 4 of 16

- The 1^st Respondent averred that the arithmetic errors did not $4.$ contain any material deviation and were corrected in accordance with the law and the Instructions to Bidders on arithmetic errors - The 1^st Respondent contended that the procurement process $5.$ was conducted in accordance with the law. - The 1^st Respondent prayed that the Tribunal finds that the 6. Applicant is not entitled to the reliefs sought and that the Application be dismissed with costs.

## The $2^{nd}$ Respondent

- The 2^nd Respondent contended that the Evaluation Committee $7.$ executed its mandate in accordance with ITB 31.4 which provides that provided that the proposal is substantially compliant and responsive, if there is a discrepancy between the unit price and the total price that is obtained by multiplying the unit price and quantity, the unit price shall prevail and the total price shall be corrected, unless in the opinion of the Procuring and Disposing Entity there is an obvious misplacement of the decimal point in the unit price, in which case the total price as quoted shall govern and the unit price shall be corrected. - The 2^nd Respondent averred that the Evaluation Committee had 8. acted in accordance with Regulation 57 of the Public Procurement and Disposal of Public Assets (Procurement of Consultancy Services) Regulations S. I No. 10 of 2014 and the bidding document in its evaluation of the financial proposals and correction of the arithmetic error. - The 2^nd Respondent prayed that the application be dismissed 9. and that the decision of the Accounting Officer be upheld.

Decision for Application No. 21 of 2022-Tumwebaze Stephen Kiba v Mbarara City. Page 5 of 16

#### $\mathbf{D}$ **THE ORAL HEARING**

The Tribunal held an oral hearing on 19^th July 2022 via zoom software. The appearances were as follows:

- Ms. Nassuna Victoria represented the Applicant, Mr. Tumwebaze 1. Stephen Kiba who was also present during the hearing. - The 1^st Respondent was represented by Mr. Timothy Arinaitwe $2.$ and Mr. Abirebe Tumwesigye the Town Clerk Mbarara City. - The 2^nd Respondent was represented by Mr. Albert Mukasa and 3. Mr. Kaddu David.

#### $\mathbf{E}$ . **SUBMISSIONS**

During the oral hearing, the Applicant and Respondent adopted their written submissions and also provided highlights to the Tribunal. *Applicant*

- The Applicant averred that the 1^st Respondent's display of the $1.$ Best Evaluated Bidder Notice flouted Regulation 85 (5) of the Local Governments (Public Procurement and Disposal of Public Assets Act) Regulations, 2006 and the Instructions to Bidders in the bidding document which required that the Best Evaluated Bidder Notice be sent to all participating bidders at the time of its display. - The Applicant contended that the Accounting Officer's extension $2.$ of another 10 working days for the display of the Best Evaluated Bidder Notice on the basis of Regulation 85 (6) of the Local Governments (Public Procurement and Disposal of Public Assets) Regulations, 2006 was done in error and improper interpretation of the law. - $3.$ The Applicant argued that as a consequence, there is no valid Notice of Best Evaluated Bidder that was displayed and served in accordance with the law and the bidding document. - The Applicant asserted that public interest would require that 4. the contract be awarded to the lowest bidder to save tax payers' money.

Decision for Application No. 21 of 2022-Tumwebaze Stephen Kiba v Mbarara City. Page 6 of 16

- The Applicant contended that the failure of the 2^nd Respondent 5. to update the totals in its financial proposal was a negligent omission arising from an inadequate calculation and should not have been treated as an arithmetic error. - 6. The Applicant prayed that the Application be allowed, the decision of the Accounting Officer be set aside, the 1st Respondent be ordered to re-evaluate the proposals and that the $1^st$ and $2^nd$ Respondents be ordered to pay the costs for this Application.

# **Respondents**

# The 1^st Respondent

- The 1^st Respondent averred that the application is improper $\mathbf{1}$ since the Applicant is not a person aggrieved by the decision of the 1^st Respondent and therefore lacks locus standi to bring this application. - The 1^st Respondent contended that the award of the contract is $2.$ guided by principles of public procurement that involve maximising competition and achieving value for money, and not necessarily the lowest bidder. - 3. The 1^st Respondent argued that the Best Evaluated Bidder Notice was displayed in accordance with the law and that at the date of the Applicant filing this application, the Notice was still on display. - The 1^st Respondent averred that the arithmetic errors did not 4. contain any material deviation and were corrected in accordance with the law and the Instructions to Bidders on arithmetic errors. - The $1^{st}$ Respondent contended that the procurement process 5. was conducted in accordance with the law. - 6. The 1^st Respondent prayed that the Tribunal finds that the Applicant is not entitled to the reliefs sought and that the Application be dismissed with costs.

Decision for Application No. 21 of 2022-Tumwebaze Stephen Kiba v Mbarara City. Page 7 of 16

## The 2^nd Respondent

- The 2^nd Respondent contended that the Evaluation Committee $7.$ executed its mandate in accordance with ITB 31.4 which provides that provided that the bid is substantially compliant and responsive, if there is a discrepancy between the unit price and the total price that is obtained by multiplying the unit price and quantity, the unit price shall prevail and the total price shall be corrected, unless in the opinion of the Procuring and Disposing Entity there is an obvious misplacement of the decimal point in the unit price, in which case the total price as quoted shall govern and the unit price shall be corrected. - The 2^nd Respondent averred that the Evaluation Committee had 8. acted in accordance with Regulation 57 of the Public Procurement and Disposal of Public Assets (Procurement of Consultancy Services) Regulations S. I No. 10 of 2014 and the bidding document in its evaluation of the financial bids and correction of the arithmetic error. - The 2^nd Respondent prayed that the application be dismissed 9. and that the decision of the Accounting Officer be upheld.

#### $\mathbf{F}$ . RESOLUTION BY THE TRIBUNAL

### **Issues**

We now revert to the substantive issues in this application:

- Whether the Applicant has locus standi to institute this i. application? - Whether the $1^{st}$ Respondent's display of the Best Evaluated ii. Bidder Notice flouted the procurement laws? - Whether the 1^st Respondent erred in correcting the $2^{nd}$ iii. *Respondent's arithmetic error?* - *What remedies are available to the parties?* iv.

Decision for Application No. 21 of 2022-Tumwebaze Stephen Kiba v Mbarara City. Page 8 of 16 ## **Resolution of Issues**

### Issue 1

# Whether the Applicant has locus standi to institute this application?

- 1. The Applicant instituted this application before the Tribunal under section 911 (1) (b) of the Public Procurement and Disposal of Public Assets Act, 2003 (as amended) as a person who is aggrieved by the decision of the 1st Respondent. Section 911 (1) (b) of the Public Procurement and Disposal of Public Assets Act, 2003 (as amended) provides redress for a person whose rights are adversely affected by a decision made by an Accounting Officer. The provision creates an avenue for persons who are not necessarily bidders but are aggrieved by a decision made by an Accounting Officer to apply to the Tribunal for a review of the decision of the procuring and disposing entity. - 2. The Respondent averred that the Applicant has no locus standi to institute this application and that therefore this Tribunal has no jurisdiction to hear the same. - 3. In Obon Infrastructure Development JV versus Mbarara City & others Application 20 of 2021, the Tribunal held that applications for administrative review are not only restricted to bidders but are also open to any persons whose rights are adversely affected by a decision of the Accounting Officer. - 4. In Old Kampala Students Association v Public Procurement and Disposal of Public Assets Authority & Old Kampala Senior Secondary School, Tribunal Application 7 of 2017, the Tribunal held that a person who is not a bidder in a procurement may apply to the Tribunal for review of a decision if the person shows that his or her or its rights are adversely affected by the decision. The Tribunal also guided that in determining whether a person is adversely affected, the Tribunal has to consider the facts of each particular application. - 5. From the Tribunal's careful interpretation of the law and the facts of this instant application, the Applicant ought to show and convince the Tribunal, that his rights are adversely affected by the decision of the Accounting Officer in order for his application to be successful. Therefore, for this application to be successful, the Tribunal ought to be satisfied of the existence of the following elements:

Decision for Application No. 21 of 2022-Tumwebaze Stephen Kiba v Mbarara City. Page 9 of 16

a

- (a) That the Accounting Officer made a decision in response to an application for administrative review; and - (b) That the rights of the Applicant have been adversely affected by the said decision of the Accounting Officer. - 6. For purposes of section 911 (1) (b), an Applicant must show that he or she had some legal right or rights in the first place. The Public Procurement and Disposal of Public Assets Act does not define the concept of "rights" as used in section 911 (1)(b). - Black's law Dictionary defines rights to include the following: - Something that is due to a person by just claim, legal guarantee or moral principle - A power, privilege, or immunity secured to a person by law - A legally enforceable claim that another will do or not do a given act; a recognised and protected interest the violation of which is a wrong - The interest, claim or ownership that one has in tangible or intangible property. - 7. Therefore, an Applicant under 911 (1)(b) must demonstrate that his rights under the Constitution, a statute, common law, customary law or equity have been adversely affected by an administrative review decision of the Accounting Officer. - 8. In the present application, the Applicant has averred that he is a tax paying citizen who is aggrieved by the illegal way the Accounting Officer of the 1st Respondent conducted the procurement process thereby leading to an award of a contract to the bidder with the highest quoted price. The Applicant however has failed to indicate to the Tribunal in his Application or written submissions any right of his that has been adversely affected or infringed by the decision to award the contract to UB Consulting Engineers Ltd in JV with Professional Engineering Consultants Limited. During the hearing, the Tribunal asked the Applicant's counsel to cite which right had been infringed, but she could not cite any single right of his that had been adversely affected by the decision of the Accounting Officer.

Decision for Application No. 21 of 2022-Tumwebaze Stephen Kiba v Mbarara City. Page 10 of 16

9. Can such an Applicant who is not able to cite any single right of his that has been adversely affected sustain an application under S 91 (1) There are no decisions of courts of record regarding b of the Act? locus standi under section 911 (1) (b). Although an application under section 91I(1) (b) is not public interest litigation, and the Tribunal does not handle public interest litigation, we can draw guidance from court decisions on the issue of *locus standi* in the following public interest litigation cases:

## 10. Odoki J in Male H. Mabirizi Kiwanuka Vs. Capital Markets Authority, High Court (Civil Division) Misc Cause No. 287 of 2021 provided the following guidance:

- (i) Sufficient interest is a matter of mixed law and fact. - (ii) The fact relates to the degree and relationship between the Applicant and the subject matter of the Application, having regard to all circumstances of the case. - (iii)The correct approach is to look at the specific circumstances under which the duty arose and see whether it gives any express or implied right to the person in the position of the applicant to complain of the alleged unlawful act or omission. - (iv)Court should examine the nature of the Applicant and the extent of his interest in the issues raised. - (v) The interest in issues raised has to be actual and not abstract. It need not to be too far removed or remote. - 11. Ssekaana J in Andrew Oluka Vs. Petroleum Authority of Uganda, Total E&P Uganda, CNOOC Uganda Limited, High Court (Civil Division) Misc Cause No. 252 of 2021. Though the Application revolved around public interest litigation, it provided the following considerations: - (i) An Applicant in a public interest litigation suit on enforcement of human rights must indicate which particular citizen has been disqualified as was in the case before the judge, from the specific procurement process to warrant an infringement or support a human rights claim. - (ii) An applicant must show which particular right has been affected and how the rights have been breached.

Decision for Application No. 21 of 2022-Tumwebaze Stephen Kiba v Mbarara City. Page 11 of 16

- (iii)It is not enough to assert existence of a right. The facts set out in the pleadings must bear out the extent of such right and its breach would give rise to relief. - (iv) The nature of the relief sought must not point to some relief or motive outside the Application. - 12. Mubiru J in Male H. Mabirizi Kiwanuka Vs. Uganda Revenue Authority, High Court (Commercial Division) Misc Cause No. 84 of **2021**, provided the following indicators for consideration: - (i) There is a difference between feeling aggrieved and being aggrieved. A person adversely affected is always assumed to have sufficient interest has to show that he is or would be a victim *of the alleged unlawful act.* - (ii) It is appropriate to require an applicant to demonstrate that he or she has a particular interest in the matter complained of: the type of interest, which is relevant, and therefore required in order to have standing, will depend upon the particular context. - (iii)A "person with direct interest" must be one who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him or her something, or wrongfully affected his or her title to something - (iv) The need for sufficient interest prevents "abuse by busybodies, cranks and other mischief makers" - (v) An Applicant must have a "sufficient interest" in the matter to which the claim relates. The considerations include factors such as: - *a) the importance of vindicating the rule of law;* - *b) the importance of the issue raised;* - *c) the likely absence of any other responsible challenger;* - *d) the nature of the breach of duty against which relief is sought;* - e) the prominent role of the applicant in giving advice, guidance and assistance with regard to the subject matter against which relief is sought - (vi)Another approach is by way of determination whether or not the relief sought is capable of conferring a direct benefit to the applicant

Decision for Application No. 21 of 2022-Tumwebaze Stephen Kiba v Mbarara City. Page 12 of 16

- (vii) An applicant who is able to demonstrate that a genuine public interest will be furthered if he or he is granted standing, would be regarded as having a sufficient interest to proceed - (viii)Consider whether there are no challengers directly affected by the decision or any other person who could realistically be expected to litigate. - (ix) The said actions of the public body should have interfered with some private right of the applicant, and where no private right of the applicant was interfered with but that the Applicant, in respect of his public right, suffered some special damage peculiar to himself from the interference with the public right. - (x) The Applicant should demonstrate for example, membership of a particular group, or experience of working in a particular field or suitable academic qualifications in the particular field. - (xi)The Application must not be brought for an improper motive. - 13. Both Mubiru J and Odoki J heavily relied upon the decision of Regina v. Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses [1982] AC 617; [1981] 2 All ER 93; [1981] 2 WLR 722; [1981] 1 WLR 793 in defining who has locus standi in any public interest litigation case. - 14. The South African Courts have held that for an applicant to be said to be adversely affected by a decision, the decision should have a direct, external legal effect on the Applicant. See Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others¹ 2007 4 SA 395 (CC) in para [70], p417 of the judgment. Wessels v Minister for Justice and Constitutional Development and Others² (594/09) [2009] ZAGPPHC 81; 2010 (1) SA 128 (GNP) (2 June 2009)-Cited by the 2^nd Respondent - 15. With respect to the application before the Tribunal, the Applicant as indicated earlier has not averred anywhere in the application where the said actions of the entity interfered with some private right of the Applicant, nor did he indicate that he has suffered some special damage peculiar to himself from the interference with the public right.

^&lt;sup>1</sup> http://www.saflii.org/za/cases/ZACC/2006/23.html

^&lt;sup>2</sup> http://www.saflii.org/za/cases/ZAGPPHC/2009/81.html

Decision for Application No. 21 of 2022-Tumwebaze Stephen Kiba v Mbarara City. Page 13 of 16

- 16. The Applicant has only demonstrated that he is a resident of Rwebikoona Village, Kamukuzi Parish, in Mbarara Municipality, Mbarara City as indicated in his National Identity Card but has not averred or demonstrated how and extent of his participation in the impugned procurement process relevant to being aggrieved by a decision of the procuring and disposing entity. - 17. Allowing any tax payer to petition the Tribunal pursuant to S. 911(b) of the Public Procurement and Disposal of Public Assets Act 2003 as amended without showing any rights have been adversely affected the procurement would by implication involve permitting a taxpayer or a group of taxpayers to call in question the exercise of management powers of the procuring and disposing entity provided for by law, and by extension involve the Tribunal itself in a management exercise. A merits review by the Tribunal of a procurement process does not extend to such arenas. - 18. Additionally, looking at the peculiar set of facts before the Tribunal, we are persuaded that in the instant Application, the Applicant instead seeks to pursue the cause of persons (bidders) who are able to seek redress on their own and already did so in Application No. 17 of 2022, MBJ Technologies Ltd vs Mbarara City, UB Consulting Engineers Ltd JV Professional Engineering Consultants Ltd and **Joadah Consult**. It is not farfetched to conclude that the Applicant is merely a conduit used by one of the undisclosed unsuccessful bidders to re-litigate Application No.17 of 2022, MBJ Technologies Ltd vs Mbarara City, UB Consulting Engineers Ltd JV Professional Engineering Consultants Ltd and Joadah Consult that was being adjudicated upon by the Tribunal at the time of filing the instant application. The decision in Application No. 17 of 2022 was rendered on July 7, 2022. - 19. This position is further supported by the lacklustre manner in which the Applicant handled this application. The Applicant in paragraph (c) of the Application pleaded that by Monday the 13^th of June 2022, he found the NOBEB on the noticeboard of the procuring and disposing entity. Had the Applicant been sufficiently interested in the impugned procurement process as he claimed, he would have challenged the same before the Tribunal within the timeframes stated in the Public Procurement and Disposal of Public Assets Act as amended, to wit 10

Decision for Application No. 21 of 2022-Tumwebaze Stephen Kiba v Mbarara City. Page 14 of 16

working days or 10 calendar days as stipulated under section 911 (2) $(a)$ - $(c)$ as the case may expeditiously and without further delay. The Applicant waited for a whole 24 calendar days or 17 working days before filing the instant Application on July 6, 2022 at 4:03pm.

- 20. Lastly, there is no administrative review decision of the Accounting Officer of the 1^st Respondent that is attached to the Application or referred to by the Applicant so as to qualify to be adversely affected under the precincts of S. 911(b) of the Public Procurement and Disposal of Public Assets Act 2003. - 21. Even if the said decision exists, the decision on record in the procurement action file, MBJ Technologies Ltd a bidder in the impugned procurement made an administrative review complaint to the Accounting Officer of the 1st Respondent on May 23, 2022. An Administrative review decision in relation to MBJ Technologies Ltd's complaint was made on June 8, 2022. The said decision was made outside the statutory timelines of 10 calendar days as required in section 89(7) of the Public Procurement and Disposal of Public Assets Act 2003. The Accounting Officer was bound to make a decision on or before June 2, 2022. The purported decision of the Accounting Officer of June 8, 2022 was therefore null and void. See Application No.17 of 2022, MBJ Technologies Ltd vs Mbarara City, UB Consulting Engineers Ltd JV Professional Engineering Consultants Ltd and Joadah Consult, page 7, para 4 and Application No.33 of 2021, Super Taste Ltd vs Bank of Uganda. - 22. In absence of the said decision attached to the Application, for which the Applicant claims to be adversely affected or where the decision sought to be relied upon is null and void and of no legal consequence, the Applicant cannot validly or legally be adversely affected. - 23. The Applicant therefore cannot, in a representative capacity as a public spirited citizen, be a person adversely affected, when his or her own legal rights are not in issue. He intends to question something with which he has shown no legitimate concern at all, and worse still, the basis for the application is suspicion and rumours from one of the unsuccessful bidders.

Decision for Application No. 21 of 2022-Tumwebaze Stephen Kiba v Mbarara City. Page 15 of 16

$\mathscr{A}$

24. The upshot of our conclusion is that the Applicant neither has no legal rights in the impugned procurement which have been adversely affected by any administrative review decision of the Accounting Officer the 1^st Respondent. He therefore has no locus standi to file this application. The result is that the Application is incompetent and will be struck out. There is no need to go into merits.

### **G. DISPOSITION**

- 1. The Application is hereby struck out. - 2. The suspension order dated $7^th$ July 2022 is vacated. - 3. Each party should bear its own costs.

Dated at Kampala this 27^th day of July 2022.

FRANCIS GIMARA SC **CHAIRPERSON**

**NELSON NERIMA MEMBER**

PATRICIA K. ASIIMWE **MEMBER**

GEOFFREY NUWAGIRA KAKIRA **MEMBER**

**PAUL KALUMBA MEMBER**

**CHARITY KYARISIIMA MEMBER**

Decision for Application No. 21 of 2022-Tumwebaze Stephen Kiba v Mbarara City. Page 16 of 16