[2024] UGPPDPAAT 46

### THE REPUBLIC OF UGANDA

## PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC ASSETS APPEALS TRIBUNAL

### **REGISTRY APPLICATION NO. 46 OF 2024**

### **BETWEEN**

YAWEH TECHNICAL SERVICES LTD::::::::::::::::::::::::::::::::::::

### AND

SOROTI DISTRICT LOCAL GOVERNMENT:::::::::::::::::::::::::::::::::::

APPLICATION FOR ADMINISTRATIVE REVIEW IN RESPECT OF THE PROCUREMENT BY SOROTI DISTRICT LOCAL GOVERNMENT FOR THE CONSTRUCTION OF A TWO-CLASSROOM BLOCK. AN OFFICE AND FURNITURE AT ABULE TUBUR PRIMARY SCHOOL IN TUBUR SUB-COUNTY UNDER PROCUREMENT REFERENCE NO. SORO930/WORKS/2024-2024-2025/00005

BEFORE: FRANCIS GIMARA S. C CHAIRPERSON; NELSON NERIMA; GEOFFREY NUWAGIRA KAKIRA; PAUL KALUMBA; CHARITY KYARISIIMA, KETO KAYEMBA; AND ENG. CYRUS TITUS AOMU **MEMBERS**

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### DECISION OF THE TRIBUNAL

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

- $1.$ Soroti District Local Government (the Respondent) initiated a procurement for works using the Quotation method of procurement for the construction of a two-classroom block, an office and furniture at Abule Tubur Primary School in Tubur Sub-County under Procurement Reference No. SORO930/WORKS/2024-2024-2025/00005. - $2.$ On September 13, 2024, the Respondent invited using the PPDA Standard bidding document for procurement of works under (Quotation method), for quotations for the works from six firms namely; *Arcadian Construction Consultancy Limited*, Sure Friends Civil and Agro Inputs Consultants, Yahweh Technical Services Ltd, Msahada Construction and Supplies Ltd, *Inofit Investments Limited and Mangron Investments.* - $3.$ On September 30, 2024, the Respondent received bids from three bidders, namely; Yaweh Technical Services Ltd (the Applicant), Msahada Contractors and Supplies Ltd and Inofit *Investments Limited.* - On November 1 2024, the Respondent communicated the Best $\overline{4}$ Evaluated Bidder (BEB) Notice, which indicated that Msahada Construction and Supplies Ltd was the best-evaluated bidder at a contract sum of *Uganda Shillings* 93,989,950 (Tx **Inclusive)**. Yahweh Technical Services Ltd was the second-bestevaluated bidder, and Inofit Investments Limited was the thirdbest-evaluated bidder. The removal date for the BEB Notice was 14 November 2024 - 5. On November 5, 2024, the applicant filed a complaint with the Respondent challenging the outcome of the procurement process.

- 6. The Respondent's Accounting Officer, in a letter dated November 18, 2024, responding to the Applicant's Complaint, ordered a re-evaluation of the bids or a cancellation of the procurement process because the Applicant's bid was nonresponsive to the Evaluation criteria and the best evaluated bidder *Msahada Contractors and Supplies Ltd* had not been invited to submit a bid in the impugned procurement. - 7. The Applicant received the Accounting Officer's decision on November 20, 2024. - The Applicant, being dissatisfied with the decision of the 8. Respondent's Accounting Officer, filed the instant application with the Tribunal on December 2, 2024, seeking to review the decision of the Respondent. - 9. The Application was made by ordinary letter and did not raise any specific issues for the Tribunal's determination. However, a perusal of the facts reveals the following issues for determination: - $(i)$ *Is the Application competent before the Tribunal?* - $(ii)$ Did the Respondent err in law in determining Msahada *Contractors and Supplies Ltd as the best-evaluated bidder?* - Did the Respondent err in law and fact in evaluating the (iii) *Applicant's bid?* - *What remedies are available to the parties?* $(iv)$

#### $B.$ THE ORAL HEARING

- The Tribunal held a virtual hearing on December 11, 2024, by 1. Zoom Cloud Application. The appearances were as follows: - $1)$ *Phillip Engulu*, the Applicant's Counsel and *Jonathan Apedu* the Applicant's administrator. - $2)$ Elly Piwang, doubling as the Chief Administrative Officer and Respondent's Accounting Officer. Also in attendance was Isenyi *Beatrice*, the Respondent's Procurement Officer

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$\overline{3}$ Opedun Musa, the Managing Director of Msahada Contractors *and Supplies Ltd*, represented the Best Evaluated Bidder (BEB).

#### $C.$ **SUBMISSIONS**

The parties highlighted their written submissions and made oral submissions as follows:

## Applicant

- 1. The Applicant's Counsel adopted its written submissions filed on December 10, 2024, and orally submitted that the Respondent's Accounting Officer should have declared the Applicant the best-evaluated bidder after finding that *Msahada Contractors and Supplies Ltd* was a stranger to the procurement process. - $2.$ The Applicant further submitted that *Yahweh Technical Services* Ltd is not Value Added Tax (VAT) registered and is thus ineligible to collect VAT and that the Respondent ought to have considered the Applicant's VAT registration status while evaluating the Applicant's bid. - 3. Counsel prayed that the Tribunal find that the Applicant was the best-evaluated bidder and award them the contract.

## **Respondent**

- 4. The Respondent adopted its response filed on December 6, 2024, and raised a preliminary objection to the effect that the instant application was filed with the Tribunal 12 days out of time and is, therefore, incompetent. - 5. The Respondent contended that the Accounting Officer's decision after reviewing the Applicant's complaint was for the bids to be re-evaluated, and the Respondent communicated the same to the Applicant.

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6. The Respondent prayed that the Application be dismissed and the Accounting Officer's decision be upheld.

# The Best Evaluated Bidder (Msahada Contractors and SuppliesLtd)

- $7.$ The Best Evaluated Bidder adopted its response filed with the Tribunal on December 4, 2024, and clarified that the BEB received an official invitation to submit a bid, duly attended the pre-bid meeting and submitted a bid in the impugned procurement process. The BEB further stated that the Respondent read the BEB's bid price in the Applicant's presence at bid opening. - The Best Evaluated Bidder prayed that the Application be 8. dismissed for being devoid of merit.

#### D. RESOLUTION BY THE TRIBUNAL

## <u>Issue no. $1 -$ Is the application competent before the</u> Tribunal?

- 1. Under Section 115(1)(a)-(c) of Public Procurement and Disposal of Public Assets Act Cap 205, an Application to the Tribunal for review of a decision of a procuring and disposing entity can only be made by - $(i)$ a bidder who is aggrieved, as specified in section 106 $(7)$ or $(8)$ ; - a person whose rights are adversely affected by a decision made $(ii)$ by the Accounting Officer; and - a bidder who believes that the Accounting Officer has a conflict $(iii)$ of interest as specified in section $106$ (9) - $2.$ The Applicant is a bidder who participated in the impugned procurement and, through its lawyers, $M/s$ Engulu & Co. Advocates, filed a "petition" with the Respondent's Accounting Officer on November 5, 2024, with the prayer that the entire procurement process be reviewed since the contract had been awarded to a "*ghost*" company/bidder.

- $3.$ On November 11, 2025, the Applicant further wrote to the Respondent's Accounting Officer, seeking an administrative review of the entire procurement process. The complaint was also accompanied by payment of the fees prescribed for administrative review. - $4.$ At the hearing, the Applicant's lawyer clarified that the letter of November 5, 2024, was a mere petition and that the Applicant's actual complaint challenging the procurement process was lodged on November 11, 2024, and accompanied by proof of payment of administrative review fees. - 5. Once a written complaint against a decision of a procuring and disposing entity is submitted to the Accounting Officer, it is taken that a challenge of the procurement process has been commenced within the context of Section $106(1)$ and (3) of the Public Procurement and Disposal of Public Assets Act read together with regulation $4(1)$ and $(3)$ of the Public Procurement and Disposal of Public Assets (Administrative *Review*) *Regulations, 2023.* - 6. The Tribunal has consistently interpreted Section $106(3)(a)$ of the *Public Procurement and Disposal of Public Assets Act together* with Regulation 7(4) of the Public Procurement and Disposal of Public Assets (Administrative Review) Regulations, 2023 on the requirement for a complaint to be accompanied with payment of the fees prescribed and guided that late payment of filing fees is not necessarily fatal, and even actual non-payment of court fees is not fatal so long as the proper fees can be accessed and paid. See: Application NO. 45 of 2024, Palm Construction Co. Ltd v Ministry of Agriculture, Animal Industry and Fisheries. Applications NO. 26 and 27 of 2022-Vision Scientific & Engineering Limited v Makerere University, Samanga Elcomplus JV v Uganda Electricity Distribution Company Limited, and Application NO.17 of 2021, Kasokoso Services Limited v Jinja School of Nursing and Midwifery. - 7. It is the Tribunal's finding that the Applicant's challenge of the Respondent's decision of the Respondent in this impugned procurement commenced and was activated by the letter to the Respondent's Accounting Officer dated November 5, 2024. It is immaterial that the Applicant paid the prescribed administrative review fees on November 11, 2024.

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- 8. The Applicant's letter dated November 11, 2024, to the Respondent's Accounting Officer was not a fresh complaint itself. A complaint against a decision of a procuring and disposing entity cannot be lodged in instalments. - 9. Under section 106(7) of the *Public Procurement and Disposal of Public Assets Act*, the Accounting Officer must mandatorily, within ten days of receipt of a complaint, make and communicate a decision, in writing, addressed to the bidder who makes the complaint, and which shall indicate the reasons for the decision taken and the corrective measure to be taken, if anv. - The Respondent's Accounting Officer received the Compliant in 10. this impugned procurement on November 5, 2024. - $11.$ The timeframe within which the Respondent's Accounting Officer was to mandatorily make and communicate a decision. in writing, addressed to the Applicant who made the complaint stated to run on **November 6, 2024,** and lapsed on **November** 16, 2024. - 12. The Respondent's Accounting Officer made an administrative review decision on **November 18, 2024,** and communicated the same to the Applicant on **November 20, 2024.** - This Tribunal finds that the Accounting Officer's decision and 13. communication to the Applicant dated November 20, 2024, was made outside the prescribed statutory time frames stipulated in section 106(7) of the Public Procurement and Disposal of Public Assets Act. The said decision was made in total breach of the law and is no decision at all. See Application No. 21 of 2024 Raxio Data Centre SMC LTD Vs Bank of Uganda. - $14.$ The law prescribes that where an Accounting Officer does not make a decision or communicate a decision within the period specified in subsection (7), the bidder may make an application to the Tribunal, in accordance with Part VIIA of this Act and specifically within ten days from the date of expiry of the period within which the Accounting Officer ought to have made and communicated his administrative review decision. See **Sections**

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### 106(8), 116(1)(a) and 116(2)(b) of the Public Procurement and Disposal of Public Assets Act Cap 205.

- The Applicant's time of reckoning to make an application to the 15. Tribunal in this case commenced on November 17, 2024, and elapsed on **November 27, 2024**. - 16. It therefore follows that the instant Application lodged with the Tribunal on **December 5, 2024,** was filed outside the time prescribed under sections $106(8)$ , $115(1)(a)$ and $115(2)(b)$ of the Public Procurement and Disposal of Public Assets Act Cap 205. - 17. We emphasise that timelines within the procurement statute were set for a purpose and are couched in mandatory terms. There is no enabling provision within the Public Procurement and Disposal of Public Assets Act that gives the Tribunal the power to enlarge or extend time. Once a party fails to move within the time set by law, the Tribunal's jurisdiction is extinguished as far as the matter is concerned. See *Eclipse* Edisoil JVC Ltd vs Napak District Local Government, High Court (Civil Appeal) No. 05 of 2024, (arising out of Tribunal *Application No. 33 of 2023- Eclipse Edisoil JVC Ltd vs Napak* District Local Government) and Application No. 45 Of 2024 -Palm Construction Company Limited v Ministry of Agriculture, Animal Industry and Fisheries - 18. In the premises, we find that the Application is incompetent, and therefore the Tribunal shall not delve into the merits of this application.

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

- The Application is struck out. 1. - The Tribunal's December 2, 2024 suspension order is vacated. $2.$ - 3. Each party is to bear its costs.

Dated at Kampala this 18^th day of December 2024.

FRANCIS GIMARA S. C **CHAIRPERSON**

GEOFFREY NUWAGIRA KAKIRA **MEMBER**

Pinn

**NELSON NERIMA MEMBER**

PAUL KALUMBA **MEMBER**

$ud$

**CHARITY KYARISIIMA MEMBER**

KETO KAYEMBA **MEMBER**

ENG. CYR US AOMU **MEMBER**

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