Topic: Strict Application of Timelines in the Procurement Statute
Date of Judgment: 27 June 2024
Court: Public Procurement and Disposal of Public Assets Appeals Tribunal
Case Number/Citation: Application 31 of 2024, 2024 UGPPDPAAT 33
Members: Francis Gimara S.C (Chairperson), Eng. Thomas Brookes, Geoffrey Nuwagira Kakiira, Paul Kalumba, and Charity Kyarisiima
Summary Facts of the Case
The Government of Uganda, through the Ministry of Kampala Capital City and Metropolitan Affairs, received funding from the World Bank/International Development Association to implement the Greater Kampala Metropolitan Area-Urban Development Program.
Kira Municipal Council (the Respondent) was the Lead Procurement and Disposing Entity for the construction of selected roads in Kira and Mukono Municipalities.
Jilk Construction Company Limited (the Applicant) submitted a bid for Lot 3 (Nasuuti-Nakabago-Ntawo Bajjo-Seeta Serado Link Kigunga Link, 9.72km).
The Respondent received thirteen bids and initially awarded the contract to China Communication Construction Company Ltd (CCCC) as the Best Evaluated Bidder for Lot 3.
The Applicant was disqualified on grounds of failing to meet the criteria of having at least two contracts within the last five years each valued at UGX 40 billion and insufficient evidence of compliance with Environmental Safety and Health Safeguards (ESHS).
The Applicant filed a complaint with the Respondent’s Accounting Officer, who upheld the disqualification decision.
The Applicant then filed an application with the Tribunal seeking a review of the procurement decision.
Legal Issues Before the Court
- Whether the application before the Tribunal is competent.
- Whether the Respondent erred by omitting or refusing to avail comparative tenders requested by the Applicant for administrative review.
- Whether the Respondent erred in disqualifying the Applicant’s bid.
- What remedies are available to the parties?
The Decision of the Court
Competency of the Application: The Tribunal held that the Applicant’s filing was out of time and was therefore incompetent.
According to Section 89(7) of the Public Procurement and Disposal of Public Assets Act, the Accounting Officer was required to make and communicate a decision within ten days from the receipt of the Applicant’s complaint.
The Applicant received the Accounting Officer’s decision on May 24, 2024, and filed the Application on June 6, 2024.
The Tribunal ruled that the Accounting Officer’s decision communicated on May 24, 2024, was made in breach of the law, as it was made outside the stipulated timeline for a complaint filed on May 6, 2024.
The Accounting Officer should have made and communicated his decision on the complaint by or on May, 16th 2024.
It was therefore no decision at all for being invalid.
As such, the Applicant’s application filed on June 6, 2024, was out of time.
As the Accounting Officer failed to make and communicate a decision within the required ten-day period , the Applicant was expected to file an Application to the Tribunal within ten days from the date of expiry of the period within which the Accounting Officer ought to have made and communicated his decision, i.e., within ten days from May 16, 2024, according to Section 89(8) of the Public Procurement and Disposal of Public Assets Act.
Thus the timeline within which the Applicant had to file the Application ranged from May 17 to May 26, 2024.
Consequently, the Tribunal did not delve into the merits of the Application due to its incompetence and struck it out accordingly.
Key Quote: “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 accords the Tribunal power to enlarge or extend time.” – Tribunal
Law Applied by the Court:
- Sections 89(7), 89(8), 911(1) 911(2)(b) of the Public Procurement and Disposal of Public Assets Act.
- Clear View Investments v. Mbarara University of Science and Technology; Decisions made out of time are no decisions at all. [ See Brief].
Counsel on Record
- For the Applicant: Mr. Ojambo Robert Mangezi
- For the Respondent: Unknown
Conclusion
This decision emphasizes strict adherence to procedural timelines in the procurement process and reinforces that the Tribunal lacks the authority to extend time limits set by the procurement law.
It demonstrates that the time within which to file an Application before the Tribunal does not necessarily begin to run when the Accounting Officer makes and communicates her decision in the Administrative review because in a situation where she makes and communicates her decision upholding a procurement decision out of time, then the Applicant is most likely to be out of time as well thus having an Application dead on arrival.
An Applicant is supposed, even if no decision has been made yet, to file an Application with the Tribunal within 10 days from the date of expiry of the time an Accounting Officer is supposed to make and communicate her decision.