THE REPUBLIC OF UGANDA
PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC ASSETS APPEALS TRIBUNAL
(PPDA APPEALS TRIBUNAL)
APPLICATION FOR REVIEW OF THE DECISION OF THE PUBLIC PROCUREMENT
AND DISPOSAL OF PUBLIC ASSETS AUTHORITY IN RESPECT OF THE TENDER FOR
REVENUE COLLECTION FROM THE BUS PARK FOR THE F/Y 2014- 2015 DELIVERED
ON 11TH AUGUST 2014
PROCUREMENT AND DISPOSING ENTITY: ARUA MUNICIPAL COUNCIL
APPLICANT/BIDDER: M/S ARUA KUBALA PARK OPERATORS AND MARKET
VENDORS ASSOCIATION
RESPONDENT: PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC
ASSETS AUTHORITY
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APPLICATION N0.1 OF 2014
(Before: OLIVE ZAALE OTETE- CHAIRPERSON, MOSES JURUA ADRIKO- MEMBER,
DAVID KABATERAINE-MEMBER, ABRAHAM NKATA- MEMBER and ARCHITECT
JOEL KATEREGGA, MEMBER)
DECISION OF THE PPDA APPEALS TRIBUNAL
1.0 BACKGROUND/FACTS
1.1 On 16th May 2014 Arua Municipal Council (Entity) invited bids for revenue
collection for the local revenue sources and hired services, revenue
collection for the bus park inclusive in the Red Pepper Newspaper. The
reserve price was indicated at UGX. 10,146,000.
1.2 Two (2) bidders namely M/s Arua Kubala Park Operators and Market
Vendors Cooperative Society and M/s True Stars were issued with bidding
documents for revenue collection for the bus park in Arua Municipal
Council.
1.3 On 4th June 2014, the bids for the above bidders were received and opened
on the same day. The prices quoted by the bidders were read as shown in
Table 1 below:
Table 1: Prices quoted by the bidders
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S/No. Name of Bidder Price per month
1. M/s Arua Kubala Park Operations and Market
Vendors Cooperative Society.
UGX 11,999,999
2. M/s True Stars Investments (U) Ltd UGX 10,200,000
1.4 According to the bidding document, the evaluation methodology to be used
was Technical Compliance Selection method.
1.5 The evaluation report indicated that the bid of M/s Arua Kubala Park
Operators and Market Vendors Cooperative Society was disqualified at the
preliminary evaluation stage for the reasons shown in table 2.
Table 2: Reasons for disqualification
S/No. Name of Bidder Reasons for disqualification
1. M/s Arua Kubala
Park Operators and
Market Vendors
Cooperative Society.
(i) Non-Compliant in experience of similar
works.
(ii) Non-Compliant with the requirement for
Power of Attorney.
(iii) Non-Compliant on Bid Security.
1.6 The bid from M/s True Stars Investments (U) Ltd was found compliant to
the preliminary evaluation requirements and was therefore evaluated up to
the financial stage and it was found responsive.
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1.7 There was no financial comparison and ranking since there was only one
bid that was eligible, compliant and responsive to the preliminary, detailed
technical and commercial evaluation criteria.
1.8 On 13th June 2014, the Evaluation Committee recommended M/s True Stars
Investments (U) Ltd for award of contract for revenue collection from the
bus park at UGX 10,200,000.
1.9 On 13th June 2014, the Contracts Committee approved M/s True Stars
Investments (U) Ltd for award of contract for revenue collection from the
bus park at UGS 10,200,000.
2.0 ADMINISTRATIVE REVIEW PROCESS
2.1 On 17th June 2014, the Arua Kubala Park Operators and Market Vendors
Cooperative Society, (Applicant), being dissatisfied with the reasons given
in the Best Evaluated Bidder notice, applied to the Accounting Officer for an
Administrative Review.
2.2 On 4th July 2014, the Accounting Officer made a decision to the effect that
the Applicant does not qualify to be a Park operator as defined under the
Guidelines for Procurement of Management Services for the Public Vehicle
Parking Areas (Parks) in Local Government Guidelines, 2012 (the
Guidelines). Accordingly, the Accounting Officer decided that the decision
by the Entity to award the contract for the collection of bus fees be set
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aside. The Accounting Officer further stated in his decision that the user
department will advise on the next course of action for the collection of the
bus fees.
2.3 Dissatisfied with the decision of the Accounting Officer of the Entity, on 11th
July 2014, the Applicant made an application to Public Procurement and
Disposal of Public Assets Authority (the Authority) for a review of the
Accounting Officer’s decision. The main grounds for application to the
Authority were that the Accounting Officer failed to make a conclusive
decision on the application for administrative review and the best
evaluated bidder, M/S True Stars Investments Uganda Ltd is a private
company not registered as a co-operative society in line with Government
Policy.
2.4 On 18th July 2014, the Authority wrote to the Accounting Officer of the
Entity suspending the procurement process and requesting for the relevant
procurement documents.
2.5 On 29th July 2013, the Authority held an Administrative Review hearing with
the Applicant and the Entity. The following officials from the Entity and the
Applicant attended the hearing as indicated in Table 3 below.
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Table 3: Parties who attended the Administrative Review Hearing
No. Name Designation
ARUA MUNICIPAL COUNCIL
1. Cornelius Jobile Senior Assistant Town Clerk (Agt.
TC)
2. Jimmy Male Senior Procurement Officer
APPLICANT/BIDDER
3. Daudi Abiti Finance Committee Member
4. Shamimy Taibo Member
5. Kasiano Acidri Chairman
2.6 On 31s t July 2014, the Authority informed M/s True Stars Investments (U)
Limited of the application for administrative review by the Applicant and
asked the company to submit any relevant information on the
procurement.In response to a letter dated 1s t August 2014, M/s True Stars
Investments (U) Limited advised that the Authority should take a decision it
deems fit in accordance with the relevant laws.
2.7 At the administrative review hearing by the Authority, the following grounds
were raised by the Applicant for determination by the Authority:
1. Failure by the Accounting Officer to make a conclusive decision on the
application for administrative review by the applicant;
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2. M/S True Stars Investments (U) Limited, the best evaluated bidder, is
a private company not registered as a cooperative society in line with
the Government Policy;
3. Whether the applicant is eligible to bid as a cooperative society for
the management of Bus Park in accordance with the Government
Policy Decisions on the Development and Management of taxi Parks
in the City, Municipalities and Towns.
2.8 In its decision made on the 11th August 2014, the Authority found merit in
grounds 1 and 2. On ground 3, the Authority found that the applicant,
though a cooperative society, does not have a minimum of 30 of its
members who qualify to be park operators as required by paragraphs 2.0
read together with paragraph 3.2 of the Guidelines.
2.9 On the basis of the findings and observations made during the
administrative review process, the Authority upheld the decision of the
Accounting Officer in respect of the administrative review. The Authority
directed the Entityto re-tender the procurement for a provider for the
management of Arua Bus Park for the financial year 2014/2015 in line with
Government Policy decisions on the development and management of Taxi
Parks in the City, Municipalities and Towns. The Authority further ordered
the Entity to refund the applicant’s administrative fees in accordance with
PPDA Guideline No. 5 of 2008.
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3.0 APPLICATION FOR REVIEW OF THE AUTHORITY’S DECISION DATED 11TH
AUGUST 2014
3.1 By letter dated 5th September 2014 the Applicant being dissatisfied with the
decision of the Authority applied to the Public Procurement and Disposal of
Public Assets Tribunal (the Tribunal) for review of the decision on the
following grounds:
1. The applicant was dissatisfied with the decision of the Authority
ordering a re-tender on grounds that the Applicant is not an eligible
cooperative society because the Applicant’s members who are park
operators are less than 10. The Applicant disagreed with the
Authority’s finding that the Applicant has 10 members, claiming that
the Authority did not attempt to ascertain the true numbers of
members of the Applicant who are park operators.
2. The Authority is lax in that it is encouraging entities who do not
follow policy guidelines.
3. The Authority’s ruling was influenced; it was not handled
professionally;
4. The Authority took long to make the ruling.
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3.2 By letter dated 8th September 2014, the Ag. Registrar of the Tribunal wrote
to the Authority requesting the Authority to provide the following
documents:-
1. Record of Proceedings;
2. All documents filed before the Authority by the Applicant;
3. Copy of the Guidelines for Procurement of Management Services for the
Public Vehicle Parking Areas in Local Government , 2012;
4. Government Policy Decision on the Development and Management of
Taxi parks in the City, Municipality and Towns; and
5. Any other documents deemed necessary by the Authority.
3.3 By letter dated 10th September 2014 the Authority wrote to the Tribunal
outlining the reasons for its decision, and attached all the documents
requested for by the Tribunal.
3.4 On 15th September 2014 the Tribunal wrote to the Accounting officer of the
Entity suspending the decision of the Authority, until the instant pending
appeal was heard and determined by the Tribunal.
3.5 On 12th September 2014 the Registrar of the Tribunal received from the
Applicant a register of the members of the Applicant.
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3.6 On 15th September 2014 the Tribunal wrote to the Authority requesting the
Authority to address the Tribunal on two (2) issues to wit:
1. Whether the solicitation documents used for the procurement in issue
(Revenue Collection from Bus Park) complied with law.
2. Whether the Authority has power to order an entity to re-tender a
procurement.
3.7 By letter dated 16th September 2014 the Authority wrote to the Tribunal
responding to the issues raised by the Tribunal in its letter dated 15 th
September 2014.
3.8 On 17th September 2014 the Applicant was served with a copy of the
Authority’s letter dated 16th September 2014.
3.9 On 17th September 2014 the Tribunal held a hearing to review the decision
of the Authority. The hearing was attended by the representatives of the
Authority, the Applicant and the Entity as appear in appear in Table 4
below:-
Table 4
No. Name Designation
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Public Procurement & Disposal of Assets Authority
1. Patricia Asiimwe Director, Legal Advisory
Services
2. Uthman Segawa Manager, Board Affairs
Arua Municipal Council
3. Beatrice Ayako Representative
Applicant/Bidder
4. KasianoAcidri Chairman, Arua Kubala
Park Operators and
Market Vendors
Cooperative Society
5. Waiswa Ramathan Advocate
6. David Abiti Member, Arua Kubala
Park Operators and
Market Vendors
Cooperative Society
4.0 LAW APPLICABLE
1. The Constitution of the Republic of Uganda, 1995.
2. The Public Procurement and Disposal of Public Assets Act No. 1 of 2003.
3. The Local Governments (Public Procurement and Disposal of Public Assets)
Regulations, 2006.
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1. The Local Governments (Public Procurement and Disposal of Public Assets)
Guidelines, 2008.
2. Guidelines for Procurement of Management Services for the Public Vehicle
parking Area (Parks) in Local Governments, 2012.
3. The Co-operative Societies Act (Cap. 112)
5.0 METHODOLOGY FOR DISPOSAL OF APPLICATION
In disposing of the application for review, the Tribunal analysed the
following documents:
1. Bid Notice/Advert;
2. Bidding documents;
3. Record of bid opening;
4. Bid proposals submitted by all bidders;
5. The evaluation report;
6. Minutes of the Contracts Committee;
7. Notice of the Best Evaluated Bidder;
8. Decision of Accounting Officer (Town Clerk), Arua Municipal Council
in respect to an application for administrative review by M/s Arua
Kubala Park Operators and Market Vendors SACCO.
9. Application for Administrative review M/s Arua Kubala Park
Operators and Market Vendors SACCO to the Authority
10. Register of M/s Arua Kubala Park Operators and Market Vendors
SACCO;
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11. Application for Review of the decision of the Authority by M/s Arua
Kubala Park Operators and market Vendors SACCO;
12. Decision of the Authority dated 11th August 2014 in respect of the
application for Administrative Review brought by M/s Arua Kubala
Park Operators and Market Vendors SACCO;
13. Extract of Minutes of the 611th PPDA Management Advisory
Committee Meeting held on Friday 29th July 2014; and
14. The Authority’s letter dated 16th September 2014 responding to the
issues raised by the Tribunal.
6.0 PRELIMINARY OBJECTION RAISED BY THE APPLICANT/BIDDER.
6.1 At the Tribunal hearing the Applicant was represented by Mr. Waiswa
Ramadhan while the Authority was represented by Ms. Patricia Asiimwe and Mr.
Uthman Segawa.
It was agreed that the Applicant’s Counsel would submit first on the application
generally whereupon the PPDA would respond. The Applicant’s counsel would
then respond to PPDA’s response.
6.2 The Applicant’s Counsel raised one preliminary objection on a point of law
to wit, “whether the Authority had locus standi to appear as a party before the
Tribunal”. Counsel argued that the Authority in exercising its mandate under
Section 91 of the Public Procurement and Disposal of Public Assets Act 1 of 2003
was acting in a quasi-judicial capacity and in so doing was protected under the law
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in exercising those powers and could not be a party in any proceedings to defend
its decision.
6.3 In response to the objection, Counsel for the Authority submitted that the
proceedings before the Tribunal were akin to proceedings for judicial review
before the High Court in which the Authority had on many occasions appeared to
defend its decisions. Therefore the Tribunal in exercising its mandate to review
decisions of the Authority was acting in a similar manner to the High Court while
exercising its powers of judicial review under Sections 41 and 42 of the Judicature
Act Cap. 13 and Rules 3, 5, 6 and 7 of the Judicature (Judicial Review) Rules S.I
11/2009. Secondly, that the Authority had a constitutional right to be heard
before any administrative body/judicial tribunal to defend the decisions it takes.
The Tribunal found it necessary to first determine this preliminary objection. The
Tribunal carefully considered the submissions of both Counsel in respect to the
preliminary objection.
It should be noted that under section 91I(1) of the Act, a bidder who is aggrieved
by a decision made by the Authority under section 91(4) of the Act may make an
application to the Tribunal for a review of the decision of the Authority. It follows
that once an application for review is filed with the Tribunal, the Tribunal as a
matter of course has to critically examine the decision of the Authority to
determine whether in making its decision, the Authority correctly applied the law
to the facts. Where the Tribunal finds issues with the decision, or any points to
clarify in the decision, the correct person to answer those issues or clarify any
points in order to assist the Tribunal come up with its decision is naturally the
Authority, and no one else.
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The Tribunal therefore finds that for the proper determination of the grounds
raised by an applicant for the review of the Authority’s decision, the Authority
must appear as a party to explain or defend its decision. The objection is
accordingly overruled.
7.0 GROUNDS FOR REVIEW OF AUTHORITY’S DECISION
7.1 At the Tribunal hearing, Counsel for the applicant raised three grounds for
review of the Authority’s as follows:-
1) Whether the Applicant fulfilled all the requirements for formation of
Co-operative Society.
2) Whether the Authority and/or Tribunal have jurisdiction to
challenge/investigate membership of the Applicant.
3) Whether the opinion of the Solicitor General on what constitutes
membership of a Co-operative Society under the Guidelines for
Procurement of Management Service for the Public Vehicle Parking
Areas (Parks) in Local Government was binding.
With the agreement of the Parties three (3) additional issues were framed for
determination by the Tribunal as follows:-
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4) Whether the solicitation documents in respect of the Tender for the
Revenue Collection from the Bus Park for the F/Y 2014 -2015 issued
by the Entity complied with the law.
5) Whether the Authority has power to order a re-tender of the
Procurement.
6) Whether the applicant is entitled to costs.
7.2 Counsel for the Applicant did not raise some of the grounds contained in
the application for review by the Tribunal during the hearing to wit, “that the
Authority is lax in that it is encouraging entities who do not follow policy
guidelines; that the Authority ruling was influenced and not handled professionally
and that the Authority took long to make the ruling”. Counsel for the Applicant
did not adduce any evidence nor make mention of these grounds during the
hearing. The Tribunal thus treated these grounds as abandoned.
8.0 ARGUMENTS IN SUPPORT OF GROUNDS FOR REVIEW
8.1 Counsel for the Applicant in support of Ground 1 and 2 argued that the
Applicant had been registered as a Co-operative Society and a Certificate to
this effect had been issued by the Registrar of Co-operative Societies on
22nd January 2014. Counsel further argued that the registration certificate
was conclusive evidence of registration as a cooperative society and
therefore unimpeachable by the Authority or the Tribunal.
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8.2 In support of Ground 2, he argued that the list of members affixed to the
Bye-laws of the Applicant and tendered at the Administrative Review
Proceedings was not exhaustive and that the Tribunal had been availed
with the Register of Members of the Applicant. Further that there were
more than 50 members who fit the criteria provided in the Guidelines on
management of taxi parks and bus parks as drivers, conductors, turn men
and vehicle owners.
8.3 In support of Ground 3, Counsel challenged the Solicitor’s General opinion
on what constituted valid membership of a Co-operative Society under the
Co-operative Societies Act.
8.4 However the Tribunal pointed out to him that the opinion of the Solicitor
General was binding on all parties as had been held in various cases before
the Courts of Judicature. The Tribunal further observed that the Solicitor
General’s opinion had also not been attached to the documents lodged by
the Applicant and that this issue had not been raised in the Applicant’s
letter dated 5th September 2014. Counsel abandoned this ground.
8.5 In support of Ground 4, Counsel agreed with the Authority that the
Solicitation documents did not comply with the law.
8.6 Finally, in support of Ground 5 Counsel agreed with the decision of the
Authority ordering re-tender of the procurement.
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9.0 REPLY BY AUTHORITY
9.1 In reply to Grounds 1 and 2, Counsel for the Authority argued that the
Applicant had admitted before the Authority in the Administrative review
process that the number of Park operators was less than ten (10).Secondly,
that the legality of the Applicant as a cooperative society had not been in
issue in the administrative review proceedings and would not have had a
bearing on the Authority’s decision.
9.2 In reply to Ground 3, in respect to the Solicitor General’s opinion, Counsel
for the Authority submitted that the Authority was aware of the opinion.
9.3 In reply to Ground 4, the Authority relied on its letter dated 16th September
2014 to the Tribunal in which it said that the solicitation document issued
by the Entity was not in compliance with the Government policy directive
or the standard bidding document issued by the Authority.
9.4 Finally in reply to Ground 5, Counsel for the Authority defended the
Authority’s decision and relied on Section 9 (1) (a) of the PPDA Act and
Section 91 (2) (b) of the PPDA Act which in their view gave the Authority
powers to re-tender if the procurement process was incurably defective
and flawed. In their view this was a corrective action envisaged under
Section 9 (1) (a) of the Act.
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9.5 In response to a query from the Tribunal as to whether re-tender is not a
new or fresh process, Counsel for the Authority conceded that re-tender of
a procurement process was a new or fresh procurement process. She
however submitted that where an Accounting Officer has made a decision
to undertake a procurement, where the Authority finds flaws in the
procurement process, as it did find in the procurement in issue, itis only
reasonable that the Authority orders a re-tender.
9.6 In response to a query from the Tribunal about the issue of award of costs
to the Applicant, Counsel for the Authority submitted that the Authority is
not liable to pay costs to the Applicant.
10. REPLY BY COUNSEL FOR APPLICANT/BIDDERS
In a short reply Counsel for the Applicant withdrew his previous agreement
with the Authority’s decision to re-tender and asked the Tribunal to award
costs against the Authority.
11. RESOLUTION BY TRIBUNAL OF GROUNDS FOR REVIEW OF APPLICATION
11.1 In resolving the grounds raised before the Tribunal at the hearing, the
Tribunal considered the documents availed to it, the submissions of both
Counsel and the law applicable to this application.
11.2 Ground One (1): Whether the Applicant fulfilled all the requirements for
formation of Co-operative Society.
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11.3 It is clear from the certificate of registration of the Applicant attached to
the application, that the applicant was duly registered as a co-operative
society. This issue was not in contention by the Authority nor before the
Tribunal and does not affect the outcome of this review.
11.4 Ground two (2): Whether the Authority and/or Tribunal have jurisdiction to
challenge/investigate membership of the Applicant.
On 14th December 2010, the Government of Uganda issued a policy on
management and development of taxi parks. The Policy requires Local
Governments to give operators of Taxi/Bus Business owners, drivers, conductors
and conductors the priority to manage parks. This Policy was translated into
Guidelines made by the Ministry of Local Government in conjunction with the
Authority, to wit, “Guidelines for Procurement of management Services for the
Public Vehicle Parking Areas (Parks) Guidelines, 2012, (the Guidelines).
Under paragraph 2.0 (ii) of the Guidelines, a park operator is defined as ‘bus
owner, driver or conductor; taxi owner, driver or conductor; lorry/truck/pick up
owner, driver or conductor and special hire/cab owner and driver.
Under paragraph 6.0 (reservation scheme) of the Guidelines, it is provided that
procurement of management services for the public vehicle parking areas (Parks)
in local governments shall be reserved for park operators in accordance with the
PPDA Act. Paragraph b thereof further provides that membership of park
operators cooperative society shall be a requirement for eligibility to participate
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in a reservation scheme. Paragraph 3.2 of the Guidelines provides that park
operators may register co-operatives either as a primary society cooperative or as
a cooperative union. A primary society cooperative, which the Applicant is, is
required by the Guidelines to have a minimum of 30 persons all of whom are
qualified for the membership of the Society. In order to qualify for membership of
a park operators cooperative society, paragraph 3.1 of the Guidelines provides
that a person must be 18 years of age and must be a park operator.
11.5 Analysing all the above provisions altogether, it is clear that it is not any
cooperative society that may participate in the procurement process for the
management of taxi/bus parks but it is only a park operators cooperative society
as defined in the Guidelines that may participate.
11.6 Consequently, as long as a matter in issue relates to procurement, and
specifically procurement of management services of a taxi park or bus park, the
Authority and the Tribunal, by virtue of their powers granted under the PPDA Act
and related subsidiary legislation, have jurisdiction to investigate the membership
of a cooperative society. The objective of the investigation would be to determine
whether the cooperative society qualifies to be a park operators cooperative
society as defined in the Guidelines. In the instant case, the Authority and the
Tribunal have jurisdiction to investigate whether the Applicant had a minimum of
30 members qualifying as Park operators.
11.7 However, there was a related issue which was raised by the Applicant in the
application to the Tribunal and was traversed extensively by both Counsel during
the hearing. The issue was “whether the Applicant fulfilled the requirements to bid
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as a cooperative society”. With respect to this issue, the Authority found that the
Applicant is not eligible to bid as a cooperative society because the “membership
of the Applicant who are park operators are less than ten (10) contrary to the
Guidelines which stipulate a minimum of thirty members under the policy” (sic).
11.8 The Tribunal finds (as will be discussed later in this Decision) that the issue
of eligibility should not have been dealt with by the Authority at the
administrative review hearing because the Applicant was not required under the
solicitation document to be a park operators cooperative society as prescribed in
the Guidelines.
This is a matter that should have been handled by the Entity at the evaluation
stage in line with pre-set evaluation criteria. As will be seen later in this Decision,
a wrong solicitation document was used in the procurement process.
11.9 The Tribunal therefore sets aside the decision of the Authority that the
Applicant is not eligible to bid as a cooperative society.
11.10 Ground three (3): Whether the opinion of the Solicitor General on what
constitutes membership of a Co-operative Society under the Guidelines for
Procurement of Management Service for the Public Vehicle Parking Areas (Parks)
in Local Government was binding.
The Tribunal did not address this ground because it was abandoned by Counsel
during the hearing. It should be noted that the Tribunal was not given a copy of
the Solicitor General’s opinion.
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11.11 Ground four (4): Whether the solicitation documents in respect of the
Tender for the Revenue Collection from the Bus Park for the F/Y 2014 -2015 issued
by the Entity complied with the law.
11.12 The Tribunal considered in-depth the bid document used for the
procurement that has given rise to this application. The Tribunal found that the
bid document did not contain the special requirements in relation to eligibility i.e.
that a bidder for the collection of bus park fees had to prove or adduce evidence
that it is a park operators cooperative society as required by the Guidelines for
the management of parks. When asked to respond to this finding of the Tribunal,
the Authority responded thus:
“Section 62 of the PPDA Act, 2003 provides that a procuring and disposing entity
shall use standard documents provided by the Authority as models for drafting all
solicitation documents for each individual procurement and disposal requirement.
This being a procurement for management of public vehicle parking areas, the
entity ought to have issued the standard bidding document for management
services for public vehicle parking areas (Parks) which unlike the standard bidding
document for procurement of non -consultancy services, issued by PPDA in 2009,
provides eligibility criteria that is specific to this particular service as provided in
the Government Policy directive and the Guideline issued by the Ministry of Local
Government.
Section 7(1) (e) of the PPDA Act requires the Authority to ensure that any
deviation from the use of the standard bidding documents, procedural forms and
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other documents is effected only after prior approval of the Authority, which was
not done by Arua Municipal Counsel in this case.”
11.13 The Tribunal, faults the Authority for not addressing this matter of faulty
solicitation documents squarely in its administrative review process, but agrees
with the response of the Authority. Counsel for the applicant also agreed with the
Authority as stated above.
11.14 The Tribunal finds that the solicitation document used in the instant
procurement was contrary to the Act and other related subsidiary legislation.
Consequently, use of a wrong solicitation document affected the entire
procurement process. As a result, the Tribunal did not find it necessary to
critically assess the Applicant’s membership register to determine whether the
applicant qualifies as a park operators cooperative society. It is the finding of the
Tribunal that this matter should have been considered by the evaluation
committee during bid evaluation process, but this could have been possible only if
the right solicitation document was used.
11.15 The Tribunal finds that the solicitation document used in respect of the
Tender for the Revenue Collection from the Bus Park for the F/Y 2014 -2015 was
contrary to the PPDA Act and Regulations made thereunder, and this rendered
the entire procurement process a nullity.
11.16 Ground five (5): Whether the Authority has power to order an entity to re-
tender a Procurement.
In dealing with this issue, the Authority contended that section 9(1) (a) of the Act
empowers the Authority, where there is a serious breach of the Act or the
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regulations, to direct a procuring and disposing entity to take such corrective
action as may be necessary in the circumstances to rectify the breach. Counsel for
the Authority further submitted that under regulation 140(7) (c) of the Local
Government (Public Procurement) Regulations, 2006, the Authority is mandated,
to indicate in its decision of an administrative review, the corrective measures to
be taken.
11.17 The issue arising from the Authority’s submission, is whether a re-tender,
as ordered by the Authority is a corrective action as envisaged in sections 90(4) or
regulation 140(7) (c) of the Local Government (Public Procurement) Regulations,
2006.
For ease of reference, section 90(4) reads as follows:
“Upon receipt of a copy of the decision of the Accounting officer….., the Authority
shall within 15 working days, review the decision and make a recommendation in
writing to the procuring and disposing entity, indicating the corrective measures
to be taken, if any, and giving reasons for the recommendation”.
11.18 The Tribunal finds that a corrective measure does not include re-tender
because a re-tender is a fresh procurement. A corrective action can only be
ordered if there is an on-going procurement or disposal process. In the instant
case, the Accounting Officer in his decision had set aside the procurement process
and therefore there was nothing to correct.
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11.19 The Authority in ordering a re-tender tends to fetter the discretion of the
procuring and disposing entity (PDE) and the Accounting Officer as stipulated in
the Public Procurement and Disposal of Public Assets Act, 2003 (the Act). Section
25 of the Act provides that a PDE shall be responsible for the management and
disposal of all procurement and disposal activities within its jurisdiction, while
section 26 of the Act and regulation 14 of the Local Government Procurement
Regulations provide that the overall responsibility for the execution of a
procurement lies with the Accounting Officer.
11.20 Section 38 of the Act and regulation 13 of the Local Government
Procurement Regulations promote independence in the execution of the different
procurement and disposal functions. Section 38 provides that subject to the Act,
the accounting officer, the contracts committee, the procuring and disposal unit,
the user department and the evaluation committee shall act independently in
relation to their respective functions and powers.
11.21 The explicit powers given to the Authority on review of an accounting
officer’s decision are stipulated in sections 8(1) (e) and section 91(2) of the Act.
For ease of reference, sections 8(1) (e) and section 91(2) are reproduced as
follows:
“8(1) (e) In exercise of its regulatory functions, the Authority shall act upon
complaints by procuring and disposing entities, providers or any other entity or
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person, in respect of any procurement or disposal activity, following the procedure
in section 91.
“Section 91 (2) The Authority shall, unless it dismisses the complaint-
(a) Prohibit a procuring and disposing entity from taking any further action;
or
(b) Annul in whole or in part an unlawful act or decision made by the
procuring and disposing entity”.
11.22 In respect to this ground, having clearly studied the relevant provisions of
the law, the Tribunal has not found an express power given to the Authority
under the Act and related subsidiary legislation to order a re-tender. The Tribunal
has found difficulty in agreeing with Counsel for the Authority that a corrective
action as envisaged in section 9(1) (a) and 90(4) of the PPDA Act includes a re-
tender. The Tribunal reiterates its position specified earlier in this Decision that a
re-tender is a fresh process, not a corrective action. In making orders following an
administrative review process, the Authority is advised to exercise the specific
powers granted to it under section 91(2) of the Act.
11.23 To maintain independence in the execution of procurement and disposal
functions as envisaged under section 38 of the Act and regulation 14 of the Local
Government procurement regulations, the Authority should not order a procuring
and disposing entity to retender.
11.24 In the circumstances, the Tribunal finds that the Authority lacks a specific
power under the Act to order a re-tender.
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11.25 Before the Tribunal takes leave of this ground, the Tribunal is of the view
that if the intention of Parliament was that the Authority should have power to
order a re-tender that power should be explicitly provided for under section 8 and
91 of the Act.
11.26 DECISION OF THE TRIBUNAL
The Tribunal makes the following decisions:
1. The Tribunal upholds the decision of both the Accounting Officer and the
Authority that the procurement process for revenue collection for the bus
park for Arua Municipal Council is discontinued on account that a wrong
solicitation document was used in the procurement process.
2. The Tribunal upholds the order of the Authority for the Entity to refund the
Applicant’s administrative fees in accordance with PPDA Guideline No. 5 of
2008.
3. The Tribunal sets aside the Authority’s decision that the Applicant is not
eligible to bid as a park operator cooperative society.
4. The Tribunal sets aside the order by the Authority directing the Entity to re-
tender the procurement for a provider for the management of Arua Bus
Park for the financial Year 2014/2015.
5. The Tribunal vacates its order to the Entity staying the decision of the
Authority ordering the entity to re-tender the procurement communicated
in its letter dated 15th September 2014.
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6. The Tribunal directs that if Arua Municipal Council, still finds it necessary to
re-tender the bid for revenue collection for the Bus Park, the Council should
issue the correct solicitation document issued by the Authority namely “The
Standard Bidding Document for Management Services for Public Vehicles
Parking Areas (Parks) which are in line with the Government Policy and
Guidelines for management of Parks.
7. On the issue of costs, in exercise of its powers granted under section 91I(5)
(d) of the Act, the Tribunal awards the Applicant out of Pocket expenses
amounting to Uganda Shillings Seven Hundred Thousand (700,000/=) while
Counsel to the Applicant is awarded Uganda Shillings Three Hundred
Thousand (300,000/=). Since the Applicant’s application has partially
succeeded, the Authority is ordered to pay said the costs.
Dated at Kampala this 19th Day of September 2014.
SIGNED ] …………………………….
OLIVE ZAALE OTETE ] CHAIRPERSON
SIGNED ] …………………………………
MOSES JURUA ADRIKO ] MEMBER
SIGNED ] ……………………………..