K-solutions Limited v Ministry of Water and Environment (Application 8 of 2024) [2024] UGPPDPAAT 9 (12 February 2024)

## THE REPUBLIC OF UGANDA

# PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC ASSETS APPEALS TRIBUNAL

## APPLICATION NO. 08 OF 2024

### **BETWEEN**

**K-SOLUTIONS LIMITED ::::::::::::::::::::::::::::::::::::**

### AND

MINISTRY OF WATER AND ENVIRONMENT ::::::::::: RESPONDENT

APPLICATION FOR REVIEW IN RESPECT OF A PROCUREMENT FOR THE SUPPLY AND INSTALLATION OF TEN (10) HYDROLOGICAL AND TEN (10) METEOROLOGICAL WEATHER STATIONS UNDER THE SACRIAC PROJECT VIDE PROCUREMENT REF NO. MWE-WSDF-E/SUPLS/23-24/0001/1/2

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

Page 1 of 18 Decision for PPDA Appeals Tribunal Application No. 8 of 2024\_K-Solutions v Ministry of **Water & Environment**

# **DECISION OF THE TRIBUNAL**

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

- 1. Ministry of Water and Environment (the Respondent) initiated a procurement for Lot 1-the supply and installation of ten $(10)$ hydrological stations and Lot 2- the supply and installation of ten (10) meteorological weather stations under the SACRIAC Project vide procurement Ref No. MWE-WSDF-E/SUPLS/23- $24/0001/1/2$ using open international bidding method of procurement on July 27, 2023. - $2.$ Upon conclusion of evaluation and adjudication process, the Respondent awarded the Contract to *Wagtech Projects Ltd* at a contract price of UGX 878,629,980/ $=$ VAT Exclusive for Lot $1$ (supply and installation of ten (10) hydrological) and contract price of UGX 1,283,753,909/ $=$ VAT exclusive for Lot 2(supply and installation of ten (10) metrological weather stations). - $3.$ The Applicant being dissatisfied with the procurement process, applied for administrative reviews before the Accounting Officer on November 6, 2023, and later with the Tribunal through Registry Application No. 30 of 2023. - 4. In a decision rendered on December 14, 2023, the Tribunal determined that the Application was successful, set aside the award of Contract to Wagtech Projects Ltd and directed the Respondent to re-evaluate the bids in the impugned procurement. - 5. The Respondent conducted a re-evaluation and by a Notice of Best Evaluated Bidder issued on January 18, 2024, the Respondent awarded the Contracts to Wagtech Projects Ltd at a contract price of UGX 1,036, 783, 376/= VAT Exclusive for Lot $1$ (supply and installation of ten (10) hydrological) and contract price of UGX 1,514,829,613/ $=$ VAT Exclusive for Lot 2(supply and installation of ten (10) metrological weather stations).

- The Applicant's bid was eliminated for allegedly failing to submit 6. evidence of at least three previous contracts of a similar nature and value as required by the commercial criteria. - $7.$ The Applicant being dissatisfied with the re-evaluation process, filed the instant application with the Tribunal electronically on January 19, 2024, seeking to review the decision of the Respondent. - 8. The Applicant contended that they submitted 3 assignments of not even similar but exactly the same nature. - 9. The Respondent filed a response to oppose the Application and contended that the contracts cited by the Applicant were not similar in nature or value. - 10. The Respondent also averred that the Tribunal did not have jurisdiction because the applicant had not first made an administrative review application to the Accounting Officer of the Respondent

#### $\mathbf{B}$ . **HEARING**

- The Tribunal conducted an oral hearing via zoom on January 7, 1. 2024. The appearances were as follows: - 1) Mr. Bob Kabaziguruka, the Managing Director of K-Solutions Ltd appeared for the Applicant. - 2) Mr. Hillary Ebila, a State Attorney from the Attorney General's chambers, appeared for the Respondent.

#### $C.$ **RESOLUTION**

**Water & Environment**

- 1. The Tribunal has considered the pleadings, submissions, the bids and the procurement action file. - $2.$ The following are the issues for determination by the Tribunal:

- $1)$ Whether the Tribunal has jurisdiction to entertain the Application? - Whether the Respondent erred when it disqualified the $2)$ Applicant's bid? - $3)$ What remedies are available to the parties?

# Issue No.1: Whether the Tribunal has jurisdiction to entertain the Application?

- 1. The Tribunal must inquire into the facts of the Application to determine whether it has the jurisdiction to entertain an application. The Tribunal would lack jurisdiction to review a matter before it where the Application is incompetent. Accordingly, competence of the Application is, inter alia, premised on the determination of whether the Applicant has locus standi to file the Application before the Tribunal. See: Application No. 5 of 2024- Tijos Investment Ltd v Lira City Council, Applications 1& 2 of 2024, Pynet Technologies SMC Ltd *vs Ministry of Lands, Housing and Urban Development.* - $2.$ The term locus standi literally means a place of standing. It means a right to appear in court, and, conversely, to say that a person has no locus standi means that he has no right to appear or be heard in a specified proceeding. To say that a person has no locus standi means the person cannot be heard, even on whether he has a case worth listening to. See *Njau* & *Others vs. City Council of Nairobi* [1976–1985] 1 EA 397 at 407. - 3. For an Applicant to have locus before the Tribunal, the Applicant must fall within the ambit of sections 91I (1) (a) $-(c)$ of the *Public* Procurement and Disposal of Public Assets Act. - $4.$ A bidder who is aggrieved by a decision of a procuring and disposing entity must first apply for administrative review to the Accounting Officer under section 89(1) of the Public Procurement and Disposal of Public Assets Act.

An application to the Tribunal under section 89 (8) where the Accounting Officer does not make a decision within ten days or where the bidder is not satisfied with the decision if made.

- $5.$ The Applicant filed a direct Application to the Tribunal on January 19, 2024. - A direct application to the Tribunal can only be filed by a bidder 6. without filing an initial complaint to the Accounting Officer on the ground that the bidder believes that the Accounting Officer has a conflict of interest or that the matter cannot be handled impartially by the procuring and disposing entity. See sections 89(9) and 911 (1) (c) of the Public Procurement and Disposal of Public Assets Act. - $7.$ Allegations of conflict of interest of the Accounting Officer in respect of the complaint, omission or breach or partiality by the procuring and disposing entity in handling a matter must be pleaded and proved. The basis of that belief must be shown to the satisfaction of the Tribunal. See *Application No. 18 of 2021*, Abasamia Hwolerane Association Ltd vs. Jinja City Council, page 14, para 11. - 8. The Application filed on January 19, 2024, did not plead any allegation of conflict of interest of the Accounting Officer in respect of the complaint, omission or breach or partiality by the procuring and disposing entity in handing the complaint. - However, on January 31, 2024, at 23: 32 hours, the Applicant 9. electronically filed an amended complaint, stating 4 reasons why the Applicant applied directly to the Tribunal and why it believes the respondent is not impartial. - 10. We also observed that on January 31, 2024, at 17:12 hours, the Respondent had electronically filed its written response to the Application and expressly averred that the Applicant had no locus standi to file a complaint before the Tribunal.

- 11. The key question to be resolved at this stage is whether the amendment to the Application can and should be admitted onto record of the Tribunal. - 12. The position of the law is that the Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. See section 100 of the *Civil Procedure Act* and Order 6, rule 19 of the *Civil Procedure Rules*. - 13. Allowing amendments is an exercise of discretion by the Court if the amendment does not work injustice to the other side, is intended to avoid a multiplicity of suits, the application is not mala fide and that the intended amendment is not expressly or impliedly prohibited by any law. See the Supreme Court decision in Gaso Transport Services Ltd Vs. Martin Adala Obene SCCA Np. 4 of 1994 [1994] VI KALR 5. - 14. Although the purported amendment was made 7 hours after the Respondent had already filed its Response before the Tribunal, there is no prejudice suffered by the Respondent. The Respondent had an opportunity to submit on the issue of locus standi. - $15.$ Secondly, a direct application to the Tribunal pursuant sections 89(9) and 91I(1)(c) of the Public Procurement and Disposal of *Public Assets Act* is solely premised on showing the basis of that belief, to the satisfaction of the Tribunal. The Tribunal remains with the discretion to allow or disallow the direct application. - $16.$ This instant Application is the second application, arising out of the same procurement following the Tribunal's order for reevaluation of the bids. It would be in the interest of justice and all the parties involved in this impugned procurement that the real question or issue raised by the Application is determined so that the procurement process is not further delayed and the

principle of transparency, accountability and fairness is seeming and actually achieved as per section 45 of the Public Procurement and Disposal of Public Assets Act.

### 17. The amended application shall therefore be allowed and shall constitute part of the Application.

- 18. In the amended application, the Applicant pleaded 4 reasons for applying directly to the Tribunal and why it believes the Respondent is not impartial. We need not delve into all the reasons cited. We accept the Applicant's first reasons that the Accounting Officer had already made a decision on the same complaint in his letter dated November 16, 2023. In our view, the Applicant had a basis for the belief that the Accounting Officer could not impartially handle the complaint. - 19. The Respondent also averred that the issues raised in the instant Application were raised by the Applicant on November 16, 2023, and responded to by the Respondent on December 23, 2023 and further resolved by the Tribunal in its decision rendered on December 14, 2023 in Registry Application No. 30 of 2023. - 20. We observed that in Registry Application No. 30 of 2023, the issue of the requirement for a bidder to submit at least 3 similar contracts of a similar nature and value was raised (see para 27 on page 9 of the Decision), the Tribunal did not determine and make any conclusive findings on the said issue. Once the Tribunal directed for a re-evaluation, the Respondent was obligated to conduct a de-novo evaluation without recourse to its earlier findings preceding the Tribunal's December 14, 2023 decision. - 21. The Applicant therefore has locus to file the Application before the Tribunal and the Tribunal is seized with jurisdiction to inquire into the application.

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

Decision for PPDA Appeals Tribunal Application No. 8 of 2024\_K-Solutions v Ministry of **Water & Environment**

# Issue No.2: Whether the Respondent erred when it disqualified the Applicant's bid?

- 23. Regulation 19(1) of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations S. I No. 103 of 2023 provides that an Evaluation Committee shall conduct a detailed evaluation of a bid that passes the preliminary examination to assess— (a) the responsiveness of the bid to the terms and conditions of the bidding document; and (b) the technical responsiveness of the bid to the statement of requirements. - 24. Regulation 47 (3) of the Public Procurement and Disposal of Public Assets (Rules and Methods for Procurement of Supplies, Works and Non-Consultancy Services) Regulations S. I No. 100 of 2023 provides that the evaluation criteria shall be used to assess compliance with the statement of requirements, the technical and financial ability of a bidder to perform the contract and the availability of the required resources. - 25. ITB 19 of the Biding Document provides that to establish its qualifications to perform the contract, the bidder shall submit the evidence indicated for each qualification criteria specified in Section 3, Evaluation Methodology and Criteria. - 26. The bidding document contains detailed statements $\mathbf{O}f$ requirements for both Lots 1 and 2. In Lot 1, the assignment entails construction of 10 stations (civil works), supply and installation of hydrological equipment and training of staff in the directorate of water Resources management. Lot 2 is for the supply of 10 meteorological weather stations. - 27. Part 1, Section 3, Evaluation Methodology and Criteria, C-Detailed Evaluation Criteria, 5- Commercial Criteria (d) at page 5 of Bidding Document required a bidder to demonstrate the commercial responsiveness of its bid by submitting at least 3 similar contracts of a similar nature and value (documentary *evidence must be submitted).*

Decision for PPDA Appeals Tribunal Application No. 8 of 2024\_K-Solutions v Ministry of **Water & Environment**

- 28. A bidder therefore had to demonstrate experience in at least 3 assignments similar in nature and value to the supply and installation of hydrological equipment and training of staff, and the supply of meteorological weather stations. - 29. The Tribunal has guided that the interpretation of the evaluation criteria relating to experience as stipulated in the evaluation and qualification criteria should not be interpreted or applied in a manner which restricts competition. See section 46 of the *Public* Procurement and Disposal of Public Assets Act and regulation 47 (5) of the *Public Procurement and Disposal of Public Assets (Rules* and Methods for Procurement of Supplies, Works and Non-Consultancy Services) Regulations S. I No. 100 of 2023, and Application No. 4 of 2021, Samanga Elcomplus J v PPDA & UEDCL, para 41, page 18. - 30. Regulation 5 (1) of the then *Public Procurement and Disposal of* Public Assets (Evaluation) Regulations, S. I No. 103 of 2023 provides that the evaluation of a bid, shall be conducted in accordance with the evaluation criteria stated in the bidding documents. Regulation $5(2)$ of the said regulations provides that an Evaluation Committee shall not, during an evaluation, make any amendment including any addition to the evaluation criteria stated in the bidding document, and shall not use any other criteria other than the criteria specified in the bidding document. - 31. It is not a requirement of the evaluation criteria that the previous projects must be identical to construction or installation of meteorological and hydrological stations. It is enough that the bidder has experience in at least three projects with some aspects which are similar (but not necessarily identical or the same as) meteorological and hydrological stations.

See: Application No. 30 of 2021, GAT Consults Limited $v$ *National Water and Sewerage Corporation para 45 and 46, and* Application No. 6 of 2021, GAT Consults Limited v PPDA and *Ministry of Water and Environment.*

Decision for PPDA Appeals Tribunal Application No. 8 of 2024\_K-Solutions v Ministry of **Water & Environment** - 32. Ideally, the Bidding Document should have specified the benchmarks for similarity of nature and value. This was not done. However, it is clear that in order to achieve the objectives of the procurement, the Respondent wanted providers with experience of similar contracts in terms of nature and value. - 33. The Applicant has contested the criteria for similarity of value of previous contracts, arguing that the Respondent did not state the minimum amount that would be equivalent to the project value. However, as discussed above, similarity does not require that the value of previous assignments must be equivalent or identical to the procurement in issue. - 34. The Tribunal finds that in view of the detailed statement of requirements, a bidder could determine the nature and value of the procurement. A bidder's own bid price is a fair yardstick of what that bidder considers to be the value of the procurement. A bidder would reasonably be expected to show experience in performing similar contracts whose value is in the range of its bid price. - 35. The Applicant also had an opportunity to request for clarification of the impugned criteria as provided under regulation 59 of the Public Procurement and Disposal of Public Assets (Rules and *Methods for Procurement of Supplies, Works and Non-Consultancy* Services) Regulations, S. I No. 100 of 2023 and ITB 7 of the Biding Document. Having failed to seek clarification, the Applicant is deemed to have been satisfied that it could reasonably respond to the criteria relating to similarity of value of previous contracts. At the hearing, the Applicant's Managing Director conceded that his understanding of the criteria was that a bidder should have done work "within that range" of his bid price. He explained that "the bid price which we quoted is what we were looking at" to guide on the contracts of similar value. - 36. The Applicant therefore had a reasonable understanding of the impugned criteria and submitted a bid to respond to all the criteria.

37. It is disingenuous for a bidder who had an option to seek clarification or even challenge the Bidding Document to fail to do so, proceed to submit a bid and then complain after the outcome of the procurement is not in its favour based on a matter not clarified or even complained about before deadline for submission of bids for the procurement.

See: Engineering Solutions (U) Ltd vs. Ministry of Water and Environment, Application No.24 of 2021 and Application No. 6 of 2022, Technology Associates Limited in Consortium with Comviva *Technology Limited v Post Bank Uganda Limited*; and *Consolidated Applications No. 31 and 32 of 2023, EAA Company Ltd & Others v Uganda National Bureau of Standards.*

- 38. An entity is entitled to exercise discretion in determining how to achieve the objectives of a given procurement. The Tribunal may not disregard an evaluation criteria unless there is an illegality or a fundamental irregularity which vitiates the entire evaluation. - 39. Although the benchmark for similarity of value was not clearly stated in the bidding document, the Evaluation Committee could still reasonably make a fair and objective assessment to determine similarity of nature and value. - 40. Apparently, the Evaluation Committee used the yardstick of the project budget to assess similarity of value. However, this project value was subjective and unknown to the bidders. We do not find that approach to be the best to achieve fairness and objectivity. - 41. In the absence of a clear specific benchmark for similar value, a bidder's own bid price may reasonably suffice as a fair and objective assessment of similarity.

As observed above, the Applicant's own Managing Director informed the Tribunal that the bid price which the bidder quoted is what they were looking at to assess similarity in value.

- 42. The Tribunal is a merits review body whose decision involves a consideration of whether, on the available facts, the decision made was a correct one, includes, reconsideration of the facts, law and policy aspects of the original decision and determination of the correct decision and further being directed to ensuring fair treatment of all persons affected by a decision, and improving the quality and consistency of primary decision making. See the judgment of Hon Justice Stephen Mubiru in Public Procurement and Disposal of Public Assets Authority V Basaar Arua Bus Operators Cooperative Society Ltd, Civil Appeal-2016/4) [2017] UGHCCD 5. - 43. We shall therefore proceed to review the Applicant's bid to determine whether there was a fair and objective evaluation of contracts submitted to prove experience in similar projects in terms of nature and value. - 44. We examined the Applicant's bids for Lots 1 and 2 and observed that the Applicant listed 14 contracts as Specific Experience some with/without evidence of contract performed, submitted in its bid. These 14 contracts are the following: - Installation and commissioning of Real time flow gauging $$ stations on River Nile for Uganda Electricity Generation Co. Ltd at a contract sum of shs. 2,714,762,779. A copy of the contract was submitted. - $2)$ Installation and commissioning of forty one (41) solar powered hydrometric stations for Ministry of Water and Environment at a contract sum of 789,000 Euros. No evidence of the contract was submitted. - Supply of 5 K W solar power system for St. Francis Academy $(3)$ Nankonge at a contract sum of shs. 41,000,000,000. No evidence of the contract was submitted.

- $4)$ Supply and installation of 20 street lights to Bukedea Comprehensive Academy at a contract sum of shs. 120,000,000. No evidence of the contract was submitted. - $5)$ Supply of 3 KW solar power system and 7 water heaters to Enganzi Game Lodge Ltd. At a contract sum of shs. 98,000,000. No evidence of the contract was submitted. - Supply and installation of 8 300 L water heaters and a 4.6 KW $6)$ solar back up system to Agenda Hotel at contract sum of shs. 148,060,000. No evidence of the contract was submitted. - $7)$ 2 solar-stand Alone village community water pumping system for Hope after Rape at a contract sum of approx. U. S \$ 80,000. No evidence of the contract was submitted. - $8)$ Installation and commissioning of solar photovoltaic energy package and wifi system at Bunjako island for Winch Energy at a contract sum of approx. U. S. \$ 10,000. No evidence of the contract was submitted. - $9)$ Motorized water systems, battery back system and solar water heater for Orugano Mountain Gorilla Lodge at a contract sum of shs. 67,000,000. No evidence of the contract was submitted. - $10)$ Supply, installation and commissioning of solar photovoltaic energy packages for energy packages for 17 sub-county offices in Acholi for Japan International Co-operation Agency at a contract sum of approx. U. S. \$ 271,694. No evidence of the contract was submitted. - Supply, installation and commissioning of solar photovoltaic $11)$ energy packages for energy packages for 205 sub-county offices in Northern and Eastern Uganda under ERT II at a contract sum of approx. U. S. \$ 724,000. No evidence of the contract was submitted.

- $12)$ Construction of solar support structures in Kyamugarura and Kanyegaramire in Kyenjojo district for Rural Electrification Agency at a contract sum of approx. U. S. \$ 68,000. The Applicant submitted a copy of a recommendation letter issued on May 2, 2016, by Rural Electrification Agency. - $(13)$ Supply, installation and commissioning of sine wave converters and battery banks for UEDCL sub-stations in Northern Uganda at a contract sum of approx. U. S. \$51,508. No evidence of the contract was submitted. - $$ Training of district technicians in Acholi region on the maintenance of solar systems at a contract sum of approx. U. S. $$11,000$ . No evidence of the contract was submitted. - 45. As already stated above, the determination of similarity of contracts submitted should be based on whether the contracts are similar but not necessarily identical. The Tribunal will now proceed to determine whether the contracts cited by the Applicant as specific experience were similar in nature and value. - 46. Only two out of the fourteen contracts listed by the Applicant as listed in paragraph 44 above had evidence submitted. These are nos. 1 and 12. The assignments in nos. 2; 3; 4; 5; 6; 7; 8; 9;10;11;13; and 14 which were listed under Specific Experience cannot be considered since the Applicant did not submit any evidence of the contracts or assignments in its bid. - 47. The assignment (no. $1$ ) for supply and installation of real time flow gauging stations on River Nile for Uganda Electricity Generation Co. Ltd at a contract sum of shs. 2,714,762,779 was evidenced by a copy of the contract.

This contract was similar in nature and value to the projects in both Lots $1$ and $2$ of the procurement.

- 48. The construction of solar support structures in Kyamugarura and Kanyegaramire in Kyenjojo district for Rural Electrification Agency (no. 12) was evidenced by a copy of a recommendation letter issued on May 2, 2016, by Rural Electrification Agency. However, the recommendation letter does not state the contract sum. The construction of solar support structures has a similarity to some aspects in Lot 1 e.g solar panels for weather accessories. The construction of solar support structures also has a similarity to some aspects in Lot $2 e.g$ civil works. However, as already observed, there is no evidence of the value of this contract. This contract cannot therefore be considered as similar in value. - 49. The Applicant also submitted copies of the following documents to prove 4 extra assignments although they were not listed in its bid among the fourteen contracts/assignments under Specific Experience: - $1)$ A sub-contract agreement between the Applicant and Siap+Micros SRL for surveys, installation, maintenance, training, hiring of Hydrometry expert Dr. Omar Munyaneza at a budget of EUROS 100,000 (shs. 412,200,000). - $2)$ Completion certificate for installation supply, and commissioning of CCTV system at Nalubaale and Kira power stations at a project cost of shs. 107,267,658. - $\overline{3}$ Contract Award by the Nile Basin Initiative for the construction of 2 hydrological field stations in Burundi on March 3, 2022, at a value of USD 20,666. - $4)$ A training and installation report for the automatic water level stations including pictorials and a narrative for having trained technical officers of DWRM on Automated Water Level Stations, conducted by the Applicant on behalf of SIAP+Micros. The contract sum is not indicated.

- The sub-contract agreement between the Applicant and 50. Siap+Micros SRL for surveys, installation, maintenance, training, hiring of Hydrometry expert Dr. Omar Munyaneza at a budget of EUROS 100,000 was evidenced by a copy of the contract. This sub-contract was similar in nature of the projects in both Lots 1 and 2 of the procurement. However, the contract value of EUROS 100,000 is not similar to the project value in the instant procurement. The Applicant's bid prices for Lot 1 and Lot 2 are shs. 915,335,488 and shs. 842,929,400 respectively. Applying an objective comparison, we are not persuaded that a project value of shs. 915,335,488 or shs. 842,929,400 is similar to a project value of shs. 412,200,000 (less than a half). This sub-contract is therefore not similar in value to the procurement in issue. - 51. The supply, installation and commissioning of CCTV system at Nalubaale and Kira power stations is similar to the procurement in issue since both have an element of ICT. However, the project cost of shs. 107,267,658 is well below the value of the impugned procurement, even by the standard of the Applicant's own bid price. - 52. The training and installation report for the automatic water level stations in respect of training of technical officers of DWRM on behalf of SIAP+Micros is part of the sub-contract above. It is not a separate contract. - 53. The contract award by the Nile Basin Initiative for the construction of 2 hydrological field stations in Burundi on March 3, 2022, at a value of USD 20,666 is similar in nature to the projects in Lots $1$ and $2$ .

However, we are not persuaded that it is similar in value to the impugned procurement. The Applicant conceded this at the hearing.

- 54. The Tribunal therefore found that only the assignment for supply and installation of real time flow gauging stations on River Nile for Uganda Electricity Generation Co. Ltd at a contract sum of shs. 2,714,762,779 was similar in nature and value to the projects in both Lots 1 and 2 of the instant procurement. The Applicant did not have evidence of 3 similar contracts of similar nature and value. - 55. Even if an overly liberal approach is applied and the contract with Siap+Micros SRL (EUROS 100,000) is accepted, still the Applicant would fall short of the requirement for at least 3 similar contracts. - 56. In conclusion, the Respondent did not err when it disqualified the Applicant's bid.

## 57. Issue no. 2 is resolved in the negative.

## Issue no. 3: What remedies are available to the parties?

- 58. Having conducted a merits review as above, the Tribunal concluded that the Applicant did not qualify for this procurement. - 59. Even if the procurement were to be remitted for re-evaluation, the exercise would be moot or academic because there would be no change in the outcome of the procurement. - 60. The Applicant is not entitled to any remedy.

See: Application no. 04 of 2024; Gold Star Insurance Company Ltd v *Uganda National Roads Authority.*

## $D$ . **DISPOSITION**

- $1.$ The Application is dismissed. - The Tribunal's suspension order dated January 29, 2024, is $2.$ vacated. - Each party shall bear its own costs. $3.$

Dated at Kampala this 12<sup>th</sup> day of February, 2024.

**FRANCIS GIMARA S. C CHAIRPERSON**

**THOMAS BROOKES ISANGA MEMBER**

Ummir

**NELSON NERIMA MEMBER**

**GEOFFREY NUWAGIRA KAKIRA MEMBER**

PAUL KALUMBA **MEMBER**

muce

**CHARITY KYARISIIMA MEMBER**

**KETO KAYEMBA MEMBER**

Page 18 of 18 Decision for PPDA Appeals Tribunal Application No. 8 of 2024\_K-Solutions v Ministry of **Water & Environment**