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 ] ……………………………..

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DAVID KABATERAINE ] MEMBER

SIGNED ] ………………………………

ABRAHAM NKATA ] MEMBER

SIGNED ] ……………………………..

ARCHITECT JOEL KATEREGGA ] MEMBER