Gulf Africa Limited v National Imformation (Application 39 of 2024) [2024] UGPPDPAAT 35 (23 September 2024)

## THE REPUBLIC OF UGANDA PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC ASSETS APPEALS **TRIBUNAL APPLICATION NO. 39 OF 2024 BETWEEN**

**GULF AFRICA LIMITED=================== APPLICANT**

AND

NATIONAL INFORMATION TECHNOLOGY AUTHORITY ==================RESPONDENT

## BEFORE: FRANCIS GIMARA S. C, CHAIRPERSON; NELSON NERIMA; GEOFFREY NUWAGIRA KAKIRA; CHARITY KYARISIIMA; AND CYRUS **TITUS AOMU, MEMBERS**

## **Representation:**

Mr. Yovino Okwir and Mr. Magezi Godfrey for the Applicant

Mr. Edmund Kyeyune holding brief for Mr. Albert Byamugisha for the Respondent

Mr. Atwine Osmond and Mr. Ojiambo David for the Best Evaluated Bidder

## **SUMMARY DECISION**

In this Application, the Applicant challenges the decision of the Respondent to award to Netcon Technologies Limited the contract for supply of Two Thousand (2,000) Devices (1,000 Desktops under Lot 1 & 1000 Laptops under Lot 2).

Pursuant to sections 106 (11) (a) and 116 (2) of the *Public Procurement and* Disposal of Public Assets Act and regulation 11 of the Public Procurement and Disposal of Public Assets (Tribunal) (Procedure) Regulations, 2016, the Tribunal issued an order to suspend the procurement process and directed the Accounting Officer of the Respondent to produce and submit relevant documents to the Tribunal, including the procurement action file and the bids.

In a letter dated 20<sup>th</sup> September 2024, J. B. Byamugisha Advocates, counsel for the Respondent, averred that the procurement is governed by the World Bank Procurement Regulations for Investment Project Financing (IPF) Borrowers 5<sup>th</sup> Edition and accordingly the Respondent sought approval from the World Bank to provide the said documents. That however, the World Bank has advised the Respondent to maintain the confidentiality requirement as provided in the World Bank Procurement Regulations for IPF Borrowers, the Bidding Document, and the Project Procurement Manual. Counsel therefore communicated that the Respondent is unable to comply with the order of the Tribunal.

Furthermore, on 20<sup>th</sup> September, 2024, the Tribunal issued witness summons to the Accounting Officer of the Respondent directing him to appear as a witness and to produce the said documents at the hearing today.

When the Application came up for hearing, the Accounting Officer did not appear. The documents were also not produced.

The Tribunal stood over the hearing for one hour to give the Respondent one more chance to produce the documents. Before the stand over, the Tribunal also invited the Respondent to consider the legal consequences of violation of Tribunal orders. Despite this caution, the Respondent has persisted in its disobedience of Tribunal orders, by not producing the documents.

Counsel for the Respondent has contemptuously submitted that they stick to their letter of 20<sup>th</sup> September 2024 and that if the Tribunal wants the documents it should write to the Solicitor General and the World Bank.

The Tribunal takes great exception to the contemptuous letter and submissions by counsel for the Respondent. It is rather unbecoming for counsel to boldly state, without lawful justification, that his client is unable to comply with the Tribunal order.

We would urge counsel as officers of court never to aid or encourage their clients to disobey court orders.

Court and Tribunal orders are not negotiable and must be obeyed.

The Respondent is a procuring and disposing entity as defined in section 2 of the Public Procurement and Disposal of Public Assets Act. Therefore, the Respondent does not require consent of the World Bank or any other person to obey orders of the Tribunal.

We are mindful that section 3 (1) of the *Public Procurement and Disposal of* Public Assets Act provides that where the Act conflicts with an obligation of the Republic of Uganda arising out of an agreement with one or more states, or with an international organisation, the provisions of the agreement shall prevail over the Act.

Counsel for the Respondent has not cited any such conflict in the impugned procurement. The Act is therefore applicable and the Tribunal has jurisdiction in the matter.

The Tribunal has perused the documents relied upon by the Respondent and finds no lawful justification for the disobedience of the Tribunal's orders. A confidentiality requirement cannot be invoked against a Tribunal or court with a statutory mandate to adjudicate disputes in a procurement.

Section 116 (2) of the *Public Procurement and Disposal of Public Assets Act* and regulation 36 of the Public Procurement and Disposal of Public Assets (*Tribunal*) (*Procedure*) *Regulations*, *2016*, empowers the Tribunal to apply the rules of practice of the High Court.

Order 16 rule 19 of the Civil Procedure Rules provides for consequences of refusal of a party to give evidence or to produce any document. The court may pronounce judgment against him or her or make such order in relation to the suit as it thinks fit

As a merits review Tribunal, we are constrained to execute our statutory mandate and adjudicate the merits of the Application in the absence of the procurement action file and the bids.

Counsel for the parties and the best evaluated bidder have been afforded an opportunity to show cause why the impugned procurement should not be cancelled.

In the given premises, the natural consequence of this is that the procurement by the Respondent for the supply of Two Thousand (2000) Devices (1,000 Desktops under Lot 1 & 1,000 Laptops under Lot 2), is cancelled.

The detailed decision will be given by email on 27<sup>th</sup> September, 2024. Dated at Kampala this 23<sup>rd</sup> day of September 2024.

$\Delta \Delta$ eg

Meurino

FRANCIS GIMARA. S. C. **CHAIRPERSON**

**NELSON NERIMA MEMBER**

tunica

**GEOFFREY NUWAGIRA KAKIRA MEMBER**

**CHARITY KYARISIIMA MEMBER**

Hemmers $\stackrel{\textstyle <}{\textstyle <}$

**CYRUS TITUS AOMU MEMBER**

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