Gold Star Insurance Company Limited v Uganda National Roads Authority (Application 4 of 2024) [2024] UGPPDPAAT 5 (29 January 2024) | Public Procurement Review | Esheria

Gold Star Insurance Company Limited v Uganda National Roads Authority (Application 4 of 2024) [2024] UGPPDPAAT 5 (29 January 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

## PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC ASSETS APPEALS TRIBUNAL

### APPLICATION NO. 04 OF 2024

### **BETWEEN**

### GOLD STAR INSURANCE COMPANY LTD::::::::::::::::::::::::::::::::::::

### AND

### **UGANDA NATIONAL ROADS AUTHORITY:::::::::::::::: RESPONDENT**

APPLICATION FOR REVIEW IN RESPECT OF A PROCUREMENT FOR THE PROVISION OF INSURANCE SERVICES FOR UNRA MOTOR VEHICLES FOR A PERIOD OF 3 YEARS UNDER PROCUREMENT REFERENCE NO. UNRA/NCONS/2022-2023/00086

# BEFORE: FRANCIS GIMARA, S. C; NELSON NERIMA, THOMAS BROOKES ISANGA; GEOFFREY NUWAGIRA KAKIRA; PAUL KALUMBA; AND CHARITY KYARISIIMA, MEMBERS

#### $\mathbf{A}$ . **BRIEF FACTS**

- 1. Uganda National Roads Authority (the Respondent) initiated a tender for the provision of insurance services for UNRA motor vehicles for a period of 3 years under Procurement Reference No. UNRA/NCONS/2022-2023/00086 using Open Domestic Bidding on June 27, 2023. - $2.$ On July 25, 2023, the Respondent received bids from 10 (ten) bidders namely, Statewide Insurance Company Limited; Liberty General Insurance Uganda Limited; Nic General Insurance Company Limited; Gold Star Insurance Company Limited (the Applicant); UAP Old Mutual Insurance Company; MUA Insurance *Uganda Limited; Jubilee Allianz General Insurance; Britam* Insurance Uganda Limited; ICEA Lion General Insurance; and Sanlam General Insurance Uganda Limited. - $3.$ Upon the conclusion of the evaluation process, a Notice of Best Evaluated Bidder was issued on October 12, 2023 indicating that the Best Evaluated Bidder was NIC General Insurance *Company Limited.* - $4.$ Being dissatisfied with the outcome of the procurement, the Applicant applied to the Accounting Officer of the Respondent for administrative review on October 26, 2023. - 5. As a result of the Applicant's complaint, a re-evaluation of all bids was conducted to establish which category of Margin of Preference they fall under. - 6. Upon re-evaluation, the Respondent determined that NIC General Insurance Company Limited qualified for Margin of Preference under category "A" while the Applicant fell under category "C". - 7. A new Notice of Best Evaluated Bidder was issued on December 12, 2023 indicating that NIC General Insurance Company *Limited* was the Best Evaluated Bidder.

### Page 2 of 18

Decision for PPDA Appeals Tribunal Application No. 04 of 2024-Goldstar Insurance v UNRA

- 8. The Applicant was dissatisfied with the outcome of the reevaluation process and filed an administrative review complaint with the Respondent's Accounting Officer on December 20, 2023. - 9. The Applicant contented that it qualified for Margin of Preference under group "A" because it is owned 100% by Ugandan citizens. The applicant also contended that the best evaluated bidder's majority shares are not owned by a Nigerian company, and therefore fell under Group "C" of the Margin of Preference. - 10. The Accounting Officer of the Respondent made a decision dated January 2, 2024 but communicated on January 4, 2024 whereby the complaint was dismissed. - 11. The Applicant then filed the instant application with the Tribunal on January 9, 2024 seeking to review the decision of the Respondent. - 12. The Application avers that the decision of the Respondent's Accounting Officer made on January 2, 2024 was made beyond the statutory period of ten days; and that the Applicant qualified for Margin of Preference by virtue of its Ugandan beneficial owners. - 13. The Applicant's counsel also filed written submissions to expound on the complaint.

### $B.$ **RESPONSE TO THE APPLICATION**

- The Respondent filed a response through its Directorate of 1. Legal Services. - $2.$ The Respondent conceded that the decision of the Accounting Officer was made outside the statutory period of ten days, but the Applicant has not been prejudiced since it has sought a remedy before the Tribunal.

### Page 3 of 18

Decision for PPDA Appeals Tribunal Application No. 04 of 2024-Goldstar Insurance v UNRA

- 3. The Respondent averred that during evaluation of bids confirmation was sought from Uganda Registration Services Bureau that the shareholders of Goldstar Insurance Company Limited were Sudhir Ruparelia (8 %); Joystna Nagrelha Ruparelia (2 %) and Goldstar International Limited, a company incorporated in the Bahamas (90%). - 4. That the bidder was correctly categorized under Group "C". - 5. The Tribunal invited the Best Evaluated Bidder to be heard by filing submissions, but it did not respond.

#### $C.$ **ORAL HEARING**

- 1. The Tribunal conducted an oral hearing on via zoom conferencing on January 23, 2024. - $2.$ The appearances were as follows:

Counsel Ssemambo Rashid and Wasswa Kasim appeared for the Applicant.

In house Counsel Joan Kyomugisha and Henry Muhangi appeared for the Respondent.

In attendance were;

John Kawuma- Chief Executive Officer of the Applicant, Jay Sakaria- Chief Actuary of the Applicant, Doreen Kahukya-PDU Representative of the Respondent and Ian Tumwijukyethe Chairperson Evaluation Committee.

- Mr. Rashid Ssemambo, counsel for the Applicant, submitted $3.$ that the respondent erred when it disregarded the Applicant's beneficial owners for purposes of determining Margin of preference. He relied on section 59A (5) of the *Public* Procurement and Disposal of Public Assets Act; ITB 33.2; and the Companies (Beneficial Owners) Regulations 2023. - $4.$ That if the Respondent had sought clarification, the beneficial owners form would have shown that the Applicant is owned and controlled by Ugandan citizens. - $5.$ Ms. Joan Kyomugisha counsel for the Respondent, submitted that according to information from Uganda Registration Services Bureau the shareholders of Goldstar Insurance Company Limited were Sudhir Ruparelia (8 %); Joystna Nagrelha Ruparelia (2 %) and Goldstar International Limited, a company incorporated in the Bahamas (90 %). The bidder was correctly categorized under Group "C". - 6. That a bid is evaluated on the basis of its contents and the applicant's bid was evaluated based on information presented by the bidder and confirmed by Uganda Registration Services Bureau.

#### $D.$ **RESOLUTION**

- 1. In view of the pleadings and submissions of the parties, the following issues stand for determination: - $1)$ Whether the Accounting Officer of the Respondent erred in law when she did not make and communicate the administrative review decision in the impugned procurement within the statutory timeframe?

- $2)$ Whether the Respondent erred in law and fact when it determined that the Applicant's bid falls under Group "C" which does not qualify for the Margin of Preference? - $3)$ Whether the Respondent erred in law and fact when it determined that the bid of the Best Evaluated Bidder qualifies for the Margin of Preference under Group "A"? - $4)$ What remedies are available to the parties? - $2.$ The Tribunal has duly considered the pleadings, submissions, authorities cited, the procurement action file and the bids.

### Issue No.1:

Whether the Accounting Officer of the Respondent erred in law when she did not make and communicate the administrative review decision in the impugned procurement within the statutory timeframe?

- $\mathbf{3}$ . The Respondent in its submissions conceded to this issue. However, for finality in resolution of disputes, the Tribunal shall resolve the said issue. - $4.$ It is the statutory duty of an accounting officer to make and communicate a decision within 10 days upon receipt of a compliant. See sections 89 (7) of Public Procurement and Disposal of Public Assets Act. - 5. Having received a complaint on December 20 2023, the Accounting Officer was duty bound to make and communicate an administrative decision within 10 days commencing on December 21, 2023 and lapsing on December 30, 2023. - 6. Therefore, the decision made and communicated on January 4, 2024 was made in breach of the law and is of no legal consequence. See Application No. 34 of 2023- Exposed Label *Limited v Uganda Civil Aviation Authority.*

$7.$ Nonetheless, where the Accounting Officer fails or omits to make and communicate an administrative review decision, the complainant has a right to file an application with the Tribunal under sections 89 (8) and 911(1)(a) of Public Procurement and Disposal of Public Assets Act.

#### 8. Issue no. 1 is resolved in the affirmative.

# Issue No. 2:

# Whether the Respondent erred in law and fact when it determined that the Applicant's bid falls under Group "C" which does not qualify for the Margin of Preference

- 9. Preference schemes are provided for under section 59A of the *Public Procurement and Disposal of Public Assets Act.* Basically, preference schemes are for the purpose of giving an advantage to Ugandan providers. In the procurement of works or services, a margin of 7 % is added to the evaluated price of a bid which does not qualify for preference or to the evaluated price of a bid of a foreign proposal. - 10. A provider which is a company registered in Uganda qualifies for the margin of preference if more than fifty percent of its capital is owned by Ugandan citizens. - 11. ITB 33 of the Bidding Document provides that a margin of preference applies to the procurement, whereby bids are classified in three Groups. Group "A" is for providers incorporated in Uganda where more than fifty percent of the bidder's capital is owned by Ugandan citizens or by the Government or a procuring and disposing entity of Uganda. Group "B" is for bids from joint ventures or associations registered in Uganda and including a provider qualifying under Group "A" which holds more than fifty percent beneficiary interest in the joint venture or association. Group "C" is for all other bids which do not qualify for preference under Group "A" or " $B$ ".

- 12. Clause 8.32 of Section 3 (Evaluation Methodology and Criteria) requires the Procuring and Disposing Entity to first review the bids to confirm the appropriateness of the classification, and to identify the bid group classification of each based upon bidders' declarations in the Bid Submission Sheet and supporting evidence. - 13. Clause 8.4 provides that the Procuring and Disposing Entity will then add seven (7) percent of the bid price to all bids in Group C; and four (4) percent of the bid price to all bids in Group B. - $14.$ The Respondent determined that the Applicant falls under Group "C", which is for bids which do not qualify for preference. - 15. The Applicant contends that it qualifies under Group "A", i.e. that more than 50 % of its capital is owned by Ugandan citizens. - 16. It is a requirement under ITB 33.3 of the Bidding Document that a bidder claiming eligibility for a Margin of Preference must complete the declarations in the bid submission sheet and provide documentary evidence of their eligibility in accordance with paragraphs $33.2(a)$ or (b). - 17. The Applicant in paragraph (I) of its bid submission sheet stated that "We are eligible for a Margin of Preference in accordance with ITB Clause 33 and are eligible for inclusion in Group A and have enclosed documentary evidence of our eligibility; Memorandum and Articles of Association, National Identification, Passport Pages of Our Company Directors and *Company returns form)".* - 18. The memorandum and articles of association were not enclosed. - 19. The particulars of directors indicate that all the five directors are Ugandans. However, it is not automatic that the directors of a company are also the shareholders.

### Page 8 of 18

Decision for PPDA Appeals Tribunal Application No. 04 of 2024-Goldstar Insurance v UNRA

- The annual return for 2022 was submitted. It indicates that the 20. nominal share capital of *Goldstar Insurance Company Limited* is shs. $10,000,000,000$ divided into $10,000,000$ shares of sh. 1 each. *Goldstar International Limited* owns 9,000,000,000 shares (90 %). Joystna Ruparelia owns 200,000,000 shares (2) %). Sudhir Ruparelia owns 800,000 shares (8 %). - 21. The Applicant also submitted copies of national identity cards of Joystna Ruparelia and Sudhir Ruparelia under the Tab "National identification cards/key passport pages for shareholders". - The Applicant's bid did not contain any documentary evidence 22. about the country of incorporation of its majority shareholder Goldstar International Limited which owns 9,000,000,000 shares (90 %). The Applicant's bid did not also contain any documentary evidence about the citizenship of the shareholders of the said majority shareholder Goldstar International Limited. - 23. Regulation 29 (4) of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 states that where a preference scheme is to be used, the bidding documents shall state, as shall be necessary: - (a) that a preference scheme shall be applied; - (b) the percentage of the preference; - (c) eligibility for the preference; - (d) the evidence required to prove eligibility for the preference; and

(e) the manner in which the preference is to be determined the during evaluation.

24. In instant procurement, the Respondent did comply with the requirements in regulation 29 (4) of the Public Procurement and Disposal of Public Assets (Procuring and Disposing Entities) *Regulations 2014.* - 25. In addition, regulation 29 (5) of the Public Procurement and Disposal of Public Assets (Procuring and Disposing Entities) Regulations 2014 requires procuring and disposing entities to verify eligibility for a preference during pre-qualification or at the preliminary examination of bids. - $26$ At preliminary stage, upon eligibility assessment, the entity declares a Pass/Fail on eligibility for Margin of Preference. The requirement to assess eligibility for preference at the preliminary stage as required by regulation 29 (5) is to ascertain which bidders will benefit from the preference scheme at financial evaluation stage. A bid which fails eligibility for Margin of Preference is not rejected; but it will not benefit from the Margin of Preference. The actual application of the preference percentages as required in regulation $29(4)$ (b) is to be done at the financial evaluation stage. - $27.$ According to the Evaluation report, dated November 27, 2023, the verification of eligibility for preference was not carried out during preliminary evaluation stage as provided for under the law. This omission was an error. However, the Respondent duly applied and evaluated the Margin of Preference criteria at the financial evaluation stage. The omission to verify eligibility for Margin of Preference at preliminary evaluation was an error, but not fatal, since it had no effect on the final outcome of the evaluation - The documentary evidence submitted by the Applicant shows 28. that Joystna Ruparelia and Sudhir Ruparelia, who are Ugandans, own a combined minority stake of 1,000,000,000 shares (10 %) in the capital of Goldstar Insurance Company Limited. - 29. The Applicant's documentary evidence of eligibility for Margin of Preference shows that less than 50% of the capital of Goldstar Insurance Company Limited is owned by Ugandan citizens. *Prima facie, Goldstar Insurance Company Limited did not qualify* for margin of preference either under Group "A" or Group "B".

## Page 10 of 18

- 30. Regulation 23 (1) of the *Public Procurement and Disposal of* Public Assets (Evaluation) Regulations 2014 provides that an evaluation committee shall using the evaluation criteria in the bidding documents and based on the contents of a bid, conduct a detailed evaluation of a bid that passes the preliminary examination. ITB 28.1 of the Bidding Document stipulated that the determination of a bid's compliance and responsiveness was to be based on the contents of the bid itself. - 31. Basing on the contents of the bid and evidence provided, the Applicant falls under Group "C", which is for bids which do not qualify for preference. - 32. The Applicant submits that if the Evaluation Committee was in doubt as to the ownership of Goldstar Insurance Company *Limited*, it ought to have sought clarification under regulation 10 (1) of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014. - 33. Clarification of bids is provided for in section 73 of the Public Procurement and Disposal of Public Assets Act. Regulations 10, 11 and 17(6) of the Public Procurement and Disposal of Public *Assets (Evaluation) Regulations* 2014 provide detailed procedures for clarification of bids. The import of section 73 of the Public Procurement and Disposal of Public Assets Act and regulations 10, 11 and 17 of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2014 is that clarification may be used where the Evaluation Committee determines that it will assist in the evaluation and also to provide missing details in the submitted information or documents. - 34. In the instant case, the evidence submitted by the Applicant clearly showed that the Ugandan citizens hold only 10 % of the capital of Goldstar Insurance Company Limited. There was no doubt, and nothing to clarify, about the capital ownership of Goldstar Insurance Company Limited. Therefore, the Applicant had no entitlement to be requested to provide additional

documents evidencing qualification for Margin of Preference through clarification.

35. In the Evaluation Report dated November 27, 2023, it is stated that the Evaluation Committee requested for ownership details of eligible firms from the Registrar of Companies. Apparently, the information was sought as part of due diligence The Evaluation Committee received a letter dated November 21, 2023 from Uganda Registration Services Bureau, which stated as follows:

RE: VERIFICATION OF CURRENT COMPANY LEGAL STATUS OF *NAMELY NIC* **THREE BIDDERS GENERAL** *INSURANCE* COMPANY LTD, BRITAM INSURANCE COMPANY UGANDA LIMITED AND GOLD STAR INSURANCE COMPANY LIMITED

Reference made to yours dated 15<sup>th</sup> November, 2023 in respect to *the above subject matter:*

NIC General Insurance Company - SMC Limited was incorporated on the $3^{rd}$ day of March, 2014 under registration number 80010004078433. The shareholder is Nic Holdings Limited a public listed company incorporated in Uganda owning 100%.

Britam Insurance Company (Uganda) Limited was incorporated on the 26<sup>th</sup> day of July, 2010 under registration number 80010003462789. The shareholders are Benson Irungu Wairegi a Kenyan National owning 1% and Britam Holdings PLC a foreign company incorporated in Kenya owning 99%.

Goldstar Insurance Company Limited was incorporated on the $12<sup>th</sup>$ day of September, 1994 under registration number 80010000291653. The shareholders are Sudhir Ruparelia a Ugandan owning 8%, Jyostna Nagrelha Ruparelia a Ugandan owning 2% and Goldstar International Limited a company incorporated in Bahamas owning 90%.

We have availed you certified copies of the requested company documents for your ease of reference.

## Page 12 of 18

*We remain at your service.*

# Nabachwa Maureen For Registrar General

- The Evaluation Committee relied on the above letter to verify 36 the ownership of the bidders for purposes of Margin of Preference. There is nothing therein to show that the majority shareholding of *Goldstar Insurance Company Limited* is owned by Ugandan citizens. On the contrary, the communication proves that Joystna Ruparelia and Sudhir Ruparelia, who are Ugandans, own a combined minority stake of 1,000,000,000 shares (10 %) while the majority stake (90 %) is owned by Goldstar International Limited, a foreign company incorporated in the Bahamas. - 37. The Applicant further avers that Goldstar Insurance Company Limited is 100 % "beneficially owned" by Ugandan citizens and therefore qualified as Group "A" under the Margin of Preference criteria. In the application for administration review to the Accounting Officer of the Respondent, the Applicant attached a copy of a beneficial ownership form for Goldstar Insurance Company Limited, which indicates that the beneficial owners of the company are Ruparelia Sudhir who is stated to own 51 % and Ruparelia Nagrelha Joystna who is stated to own 49 %. - 38. The Tribunal has determined that the said beneficial ownership form could not be used to evaluate whether a bidder qualifies for Margin of Preference. The beneficial ownership form was not part of the Applicant's bid. As already stated in this decision, evaluation of a bid is based on its contents alone. - 39. The Tribunal has also determined that in any case, a beneficial ownership form is not proof of ownership of capital in a company for purposes of section 59A of the Public Procurement and Disposal of Public Assets Act.

- 40. The Applicant relies on section 59 (5) (c) to claim entitlement to Margin of Preference. For a company registered in Uganda to qualify Margin of Preference under section 59 (5) (c), more than fifty percent (50%) of the capital of the contractor or consultant must be owned by Ugandan citizens. - 41. The capital in a company limited by shares is owned by the shareholders. The shareholders are the owners of the company. See sections 47, 61, 83 and 119 of the *Companies Act.* - 42. Section 119A of the *Companies Act* as amended by Act No. 16 of 2022 requires a company with "beneficial owners" to keep a register of its beneficial owners. "Beneficial owner" is defined as a natural person who ultimately owns or controls a company or a natural person on whose behalf a transaction is conducted in a company, and includes a natural person who exercises ultimate control over a company. - 43. of the Memorandum to the *Companies* Paragraph $3.1\,$ (Amendment) Bill 2022, provides as follows:

## 3.1 Beneficial ownership for companies

The Bill seeks to provide for the definition of beneficial ownership in the Act and to require all companies to keep a register of beneficial owners, which shall include all information prescribed in regulations relating to beneficial ownership, the role of the accountable persons and offences and sanctions. The rationale is to comply with Recommendation 24 of the Financial Action Task *Force (FATF) which requires countries to take measures aimed at* preventing misuse of legal persons for money laundering and *terrorism financing.*

- 44. It is evident that the purpose of disclosing beneficial ownership information is to prevent money laundering and terrorism financing. There was no intention to change the legal ownership of companies from the actual shareholders/members/owners to the "beneficial owners". - 45. In the result, we do not agree that "beneficial owners" are the "owners" of the capital of the company for purposes of the Page 14 of 18

Companies Act and the Public Procurement and Disposal of Public Assets Act. There is nothing in the Companies (Amendment) Act 2022 which shows an express or implied amendment of the provisions relating to membership of companies and ownership of shares. For instance, it cannot be suggested that "beneficial owners" would have power to pass company resolutions or even transfer shares. Those powers are reserved to the actual shareholders/members.

- 46. The majority shareholder of *Goldstar Insurance Company* Limited is Goldstar International Limited which owns 90 % shares. To the extent that Joystna Ruparelia and Sudhir Ruparelia, who are Ugandans, actually own 10 % shares of Goldstar Insurance Company Limited, they own only 10 % in the capital of the company. The purported "beneficial ownership" of 49 % and 51 % of the shares is of no consequence for purposes of capital ownership, membership and actual shareholding under the Companies Act and the Public Procurement and *Disposal of Public Assets Act.* - 47. Issue no. 2 is resolved in the negative. Issue No. 3: Whether the Respondent erred in law and fact when it determined that the bid of the best evaluated bidder qualifies for the Margin of Preference under Group "A"? - 48. The Best Evaluated Bidder, Nic General Insurance Company Ltd clearly stated in its bid submission sheet dated July 25, 2023 in para (i) that "We are not eligible for a margin of preference in accordance with ITB Clause 33". - 49. The bidder did not provide documentary evidence of their eligibility for Margin of Preference. - 50. The Evaluation Committee therefore erred when it determined at page 15 of the Evaluation Report that Nic General Insurance Company Ltd qualifies for Margin of Preference under Group "A".

- 51. As observed under issue no. 2, the Evaluation Committee relied on the communication from Uganda Registration Services Bureau to verify the ownership of bidders for purposes of Margin of Preference. The Evaluation Committee relied on the statement that NIC General Insurance Company - SMC Limited has one 100 % shareholder, Nic Holdings Limited, said to be a public listed company incorporated in Uganda. (NIC General Insurance Company Limited converted into NIC General Insurance Company - SMC Limited vide a certificate of conversion from a private company to a single member company dated July 26, 2023). - 52. We noted that according to the certified copy of the annual return for 2023 provided to the Respondent by Uganda Registration Services Bureau, the nominal share capital of NIC General *Insurance Company* $\overline{\phantom{a}}$ $SMC$ Limited is UGX. 7,000,000,000 divided into 1,400,000,000 shares of UGX 5 each. All the shares are owned by Nic Holdings Limited. The cover letter from Uganda Registration Services Bureau indicates that *Nic Holdings Limited* is a public listed company incorporated in Uganda. However, there is no information as to whether the majority shareholders of *Nic Holdings Limited* are Ugandan citizens for purposes of section 59A (5) of the Public Procurement and Disposal of Public Assets Act and ITB 33.2 of the Bidding Document. - 53. This Tribunal concludes that by dint of their own declaration and the evidence available, *Nic General Insurance Company Ltd* (now NIC General Insurance Company - SMC Limited), did not qualify for Margin of Preference. - 54. Having determined that *NIC General Insurance Company* Limited was qualified for Margin of Preference, the Evaluation Committee did not add a margin to their bid price, which remained at UGX 1, 367,539,635. However, the bid price of the Applicant was accordingly adjusted by 7 % from UGX 1,369, 318, 329 to UGX 1,465, 170, 612. - 55. In view of our finding that Nic General Insurance Company Limited did not qualify for Margin of Preference, the Evaluation Page 16 of 18

Committee erred when it adjusted the bid price of the Applicant in order to give *Nic General Insurance Company Limited* a preference. The Applicant's bid price should have been evaluated without adjustment.

### 56. Issue no. 3 is resolved in the affirmative. Issue no. 4: What remedies are available to the parties?

- 57. prayed that the Tribunal directs The Applicant the Respondent's Accounting Officer to qualify the Applicant under Group "A" of the Margin of Preference criteria; refund of administrative review fees and filing fees; and costs. - 58. The Tribunal has determined that the Applicant did not qualify for Margin of Preference. The gravamen of the Applicant's complaint has failed. - $59.$ The Tribunal has found that *Nic General Insurance Company* Ltd did not also qualify for Margin of Preference. However, even without the benefit of a Margin of Preference, the annual bid price of *Nic General Insurance Company Ltd* is UGX 1, 367,539,635, which is lower than the unadjusted bid price of UGX 1,369, 318, 329 offered by the Applicant. The annual bid price offered by the Applicant exceeds the annual bid price of the best evaluated bidder by UGX. 1,778,694. - 60. Therefore, even if the Applicant's unadjusted bid price of UGX 1,369, 318, 329 is restored, in view of our findings that both the Applicant and Best Evaluated Bidder do not qualify for Margin of Preference, are in the same Group, there would be no change in the outcome of the procurement. - 61. There is therefore no justifiable reason to set aside the adjudication of Nic General Insurance Company Ltd as the Best Evaluated Bidder. - 62. In the result, the Applicant is not entitled to any remedy from the Tribunal.

## Page 17 of 18

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

- The Application is dismissed. $1.$ - $2.$ The Tribunal's suspension order dated January 9, 2024, is vacated. - 3. Each party shall bear its own costs.

Dated at Kampala this 29<sup>th</sup> day of January, 2024.

**FRANCIS GIMARA S. C CHAIRPERSON**

**THOMAS BROOKES ISANGA MEMBER**

**PAUL KALUMBA MEMBER**

llemmin

**NELSON NERIMA MEMBER**

**GEOFFREY NUWAGIRA KAKIRA MEMBER**

imma

**CHARITY KYARISIIMA MEMBER**