VCon Construction (U) Limited v Makerere University (Application No. 3 of 2022) [2022] UGPPDPAAT 3 (9 February 2022)

Key Facts

Issues

• The Tribunal addressed the Applicant's requested reliefs (e.g., declaration of termination, cancellation, retendering). It concluded that no valid process existed to cancel and lacks authority to compel retendering, as the procurement had already terminated by bid expiry.
• The Tribunal assessed if the procurement process terminated on 31st December 2021 when bids and securities expired. Citing prior cases and Bid Data Sheet clauses, it concluded that expired bids end the process, preventing any valid contract formation.
• The Tribunal determined whether the Accounting Officer violated section 89(6) of the Public Procurement Act by failing to request bidders to extend their bid validity and security after receiving an administrative review application. This omission was found to be a legal and factual error, nullifying the decision-making process.
• The Tribunal determined if a contract could be signed with the Best Evaluated Bidder following bid expiry. It held that a terminated procurement process cannot result in a valid contract, referencing the statutory definition of a contract and prior rulings on expired bids.
• The Tribunal evaluated if the Accounting Officer's decision on 4th January 2022 adhered to section 89(7)'s 10-day deadline for administrative reviews. It ruled the decision invalid as it was issued after the deadline expired on 2nd January 2022, citing case law that out-of-time decisions are 'no decision at all.'

Holdings

• The Tribunal concluded that no reliefs (e.g., cancellation of procurement, retendering) are available for the Applicant. The procurement process was already terminated by bid expiration, and the Tribunal lacks authority to compel retendering. Costs were ordered to be borne by each party.
• The Accounting Officer's decision dated 4th January 2022 was invalid and unlawful as it exceeded the 10-day statutory deadline under section 89(7) (inclusive of weekends and holidays). This aligns with Super Taste Ltd V Bank of Uganda (Application No. 33 of 2021), where out-of-time decisions were deemed 'a blatant breach of the law and no decision at all.'
• The Tribunal found the Accounting Officer erred in law and fact by not requesting bidders to extend bid validity and security under section 89(6), which is mandatory. This non-compliance rendered the procurement process fatal, as established by the Supreme Court in Galleria in Africa Ltd vs Uganda Electricity Distribution Company Ltd [2018] UGSC 19.
• The Tribunal ruled that no valid contract can be executed with the Best Evaluated Bidder (M/s Excel Construction Ltd) because the procurement process terminated on 31st December 2021. Contracts under section 3 of the Act require an active, approved procurement process, which no longer existed.
• The Tribunal determined that the Applicant has locus standi under section 911(1)(b) of the Public Procurement and Disposal of Public Assets Act because their rights were adversely affected by the Accounting Officer's failure to request bid extensions under section 89(6). The Applicant's application for administrative review was valid despite bids expiring, as the omission invalidated the process.
• The procurement process for MAK/WRKS/2021-2022/00009 concluded on 31st December 2021 when bids and bid securities expired. This aligns with precedents in Kazini Fredric Vs. PPDA (PAT Application No. 16 of 2015) and Acacia Place Ltd Vs. PPDA (Application No. 10 of 2021), which hold that expired bids terminate the process.

Remedies

• The Respondent may retender the procurement process if they choose to do so.
• The Tribunal's suspension order from January 17, 2022, is no longer in effect.
• Each party is responsible for their own legal costs in this case.

Legal Principles

• The decision of the Accounting Officer dated 4th January 2022 was declared ultra vires because it was issued outside the statutory 10-day deadline (calendar days, not working days). This aligns with prior tribunal rulings that out-of-time decisions are 'a blatant breach of the law and no decision at all.'
• The tribunal emphasized that statutory provisions regulating public procurement must be strictly adhered to as mandatory requirements. Non-compliance with these provisions renders procurement proceedings invalid, as established in Galleria in Africa Ltd versus Uganda Electricity Distribution Company Ltd.

Precedent Name

• Old Kampala Students Association V Old Kampala Senior Secondary School & PPDA
• Super Taste Ltd V Bank of Uganda
• Acacia Place Ltd Vs. PPDA and Electoral Commission
• Kazini Fredric Vs. PPDA
• Elite Chemicals Limited Vs. Uganda Coffee Development Authority
• Galleria in Africa Ltd versus Uganda Electricity Distribution Company Ltd

Cited Statute

Judge Name

• Patricia K. Asiimwe
• Francis Gimara S.C
• Paul Kalumba
• Geoffrey Nuwagira Kakira
• Nelson Nerima
• Charity Kyarisiima

Passage Text

• The Tribunal finds that the entity cannot enter into a contract with a bidder on the basis of a procurement process that has ended.
• The Tribunal finds that the purported decision of the Accounting Officer was invalid and unlawful as it was communicated out of time.
• The procurement process came to an end on 31st December 2021 once the bids and the bid securities expired.