MBJ Technologies Limited v Mbarara City Council (Application 37 of 2024) [2024] UGPPDPAAT 38 (16 September 2024)

# THE REPUBLIC OF UGANDA PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC ASSETS APPEALS **TRIBUNAL**

## APPLICATION NO. 37 OF 2024

## **BETWEEN**

MBJ TECHNOLOGIES LIMITED ==================APPLICANT

### AND

MBARARA CITY COUNCIL======================RESPONDENT

APPLICATION FOR REVIEW IN RESPECT OF THE PROCUREMENT FOR CONSULTANCY SERVICES FOR THE SUPERVISION OF THE COMPLETION OF BUREMBA-BISHOP STUART UNIVERSITY (BSU) ROAD (0.99KM) AND UPGRADING OF MACKHANSIGN-VICTOR BWANA LINKS (0.16KM) UNDER USMID-AF INFRASTRUCTURE PROGRAM IN MBARARA CITY UNDER PROCUREMENT REFRENCE NO. MBAR 609/USMID/SRVCS/2023-2024/00013.

BEFORE: FRANCIS GIMARA S. C, CHAIRPERSON; NELSON NERIMA; PAUL KALUMBA; CHARITY KYARISIIMA AND CYRUS TITUS AOMU, **MEMBERS**

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# DECISION OF THE TRIBUNAL

#### **BRIEF FACTS** $A.$

- Mbarara City Council (Respondent) received funds from the World $1.$ Bank and the Government of Uganda under the Uganda Support to Municipal Infrastructure Development - Additional Funding (USMID-AF) programme for the design review (1.99km) and construction supervision of civil works for the rehabilitation of Buremba Road (1km) in Mbarara City during the financial year 2023/2024. - The Respondent invited bids for Consultancy Services under $2.$ Restricted Domestic Bidding under procurement Ref: Mbar 609/USMID/SRVCS/2023-2024/00013. The subject of the procurement was stated as follows:

Provision of Consultancy Services for supervising consultant of *Completion of Buremba-Bishop Stuart University (BSU) road (0.99) km)* and *Upgrading* of *Mackhansign-Victor Bwana Links* (0.16) *km) Under USMID-AF Infrastructure Program in Mbarara City.*

- 3. The Request for Proposal dated June 17, 2024, was issued to 8 shortlisted consultants, namely *Centre* for *Infrastructure* Consulting Limited, UB Consulting Engineers, Adriax Consults SMC *Limited, Westlands Engineering Associates (WEA) Ltd, Athwax* Consultants SMC Limited, KKAT Consult Limited, Footnote Consult Ltd and MBJ Technologies Limited. - Only two firms, *Athwax Consultants Limited* and *MBJ Technologies* $4.$ *Limited*, submitted proposals on June 21, 2024. - On July 29, 2024, the Respondent's Contracts Committee, under $5.$ minute No. $302/07/2024/2025(b)$ , approved the technical evaluation report for the impugned procurement, authorized the issuance of invitation letters to Athwax Consultants Limited and MBJ Technologies Limited on July 30, 2024, for the opening of financial bids that was scheduled for August 2, 2024.

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- On August 13, 2024, *MBJ Technologies Limited* (the Applicant) 6. received an invitation letter from the Respondent to the opening of the financial proposals on Friday, 16<sup>th</sup> August 2024, at 11:30 pm at the Mbarara City Council Procurement and Disposal Unit Office. - On August 13, 2024, the Applicant, in a letter addressed to the 7. Head Procurement and Disposal Unit of the Respondent, requested clarification on the time and date of the financial opening of the bids since 11:30 pm as stated, would not be official working hours for public offices in Uganda, requested to be furnished with the technical scores of the bids and requested the Respondent to display the technical scores on the Respondent's noticeboard as required by law. - The Respondent, in a letter dated August 13, 2024, and addressed 8. to the Applicant, clarified that the opening of the financial bids would take place on 16<sup>th</sup> August 2024 at 11:30 am at the Mbarara City Council Procurement and Disposal Unit Office, and not at 11:30 pm as was previously communicated. - On August 14, 2024, the Applicant, in a letter addressed to the 9. Head Procurement and Disposal Unit of the Respondent, reminded the Respondent to share and publish the technical scores of bids. - On August 15, 2024, the Applicant filed an administrative review 10. complaint to the Respondent's Accounting Officer, challenging the Respondent's Head Procurement and Disposal Unit to omitting to sharing the technical scores of bids with the Applicant and displaying the said scores on the Respondent's noticeboard as required by law. - On August 16, 2024, the Applicant, in a letter addressed to the 11. Respondent's Accounting Officer, requested proof that the Accounting Officer had suspended the procurement process upon receipt of the Applicant's complaint as required by law. The Respondent did not respond to respond to this request.

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- 12. On August 17, 2024, the Respondent opened the financial bids of Athwax Consultants Limited and MBJ Technologies Limited and displayed the details of the financial bid opening on the notice board of its Procurement and Disposal Unit. - The details of the financial bid opening displayed on the notice 13. board of its Procurement and Disposal Unit indicated that Athwax Consultants Limited had a technical score of 93% and a bid price of UGX 498,212,500/= while *MBJ Technologies Limited* had a technical score of 80% and a bid price of UGX 319,020,000/ $=$ . - $14.$ On August 21, 2024, the Respondent displayed the Notice of Best Evaluated Bidder in the impugned procurement. The Notice stated that Athwax Consultants Limited was the Best Evaluated Bidder at a Contract Price of UGX $498,212,500/$ = and a combined technical and financial score of 87.2%. - On August 23, 2024, the Respondent's Accounting Officer made $15.$ and communicated his administrative review decision on the Applicant's complaint filed on August 15, 2024. The Accounting Officer did not find merit in the application and dismissed the complaint. - The Applicant, being dissatisfied with the procurement process, 16. alleged a lack of impartiality on the Respondent's part and thus applied directly to the Tribunal on August 27, 2024, seeking review of the impugned actions, omission, or breach of the bidding document and law by the Respondent.

### $\mathbf{B}$ . APPLICANT'S SUBMISSIONS

- The Applicant submitted that the Respondent did not display the $1.$ technical scores of the bids evaluated on its noticeboard as required under Regulation 27(4) of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2023, which is a mandatory requirement. - The Applicant contended that the legislative justification for Reg $2.$

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$27(4)$ was to allow any bidder who is aggrieved by a decision of a procuring and disposing entity or who claims that there has been any omission or breach of the Act, to exercise its right to make a complaint to the Accounting Officer of the procuring and disposing entity as stipulated under section $106$ (1) and (2) of the Public Procurement and Disposal of Public Assets Act Cap 205 at any stage of the procurement process. The Applicant relied on the decision in Application No. 6 of 2022, **Technology Associates** Limited in consortium with Comviva Technologies Limited Vs. **Post Bank Uganda Limited,** to fortify its submissions.

- 3. The Applicant averred that it had not received the alleged posted notice and that the alleged notices did not dispense with the duty to display the scores for the technical bids on its notice board. - $4.$ The Applicant submitted that *Athwax Consultants Limited* was deregistered from the Register of Companies and was therefore not eligible under 3.2(b) of the Preliminary Examination Criteria of the solicitation document while relying on regulation $74(3)(a)$ of the Public Procurement and Disposal of Public Assets (Procurement of Consultancy Services) Regulations, 2023 and Regulations 2, 42(6) and $43(1)$ of the Companies Regulations 2023. - 5. The Applicant also contended that the change in the shareholding of Athwax Consultants Limited does not change the fact that Athwax Consultants Limited was struck off the Register of Companies. - 6. The Applicant further argued that Athwax Consultants Limited did not have the required specific experience as described in ITB 1.2 of the bid data sheet. The Applicant submitted that the four projects that Athwax Consultants Limited cited in compliance with ITB 1.2, such as Consultancy services for the improvement of matooke market to tarmac in western division, Construction of Stormwater Drainage for Mwanjari Business Centre, Design and construction supervision of Ankole Resort Hotel and Provision of consultancy services for the design of kanuuma road did not meet the requirements for specific experience related to the assignment, and are, therefore, not similar or identical or specific to the Page 5 of 17

experience required under ITB 1.2 of the bid data sheet.

- While relying on statutory declarations deponed by its proposed $7.$ personnel for the key staff positions of Electrical Engineer and Environmental Specialist, the Applicant contended that the bid of Athwax Consultants Limited ought not to have been scored for nominations where the proposed personnel had denied having agreed to work with it. - 8. The Applicant concluded by arguing that the non-objective scoring of the bid of Athwax Consultants Limited, which neither had the specific experience related to the assignment, as required under ITB 1.2 of the bid data sheet, nor a dedicated Electrical Engineer and an Environmental Specialist as the proposed personnel, could not have scored any more than 93 points at the technical evaluation stage. - 9. The Applicant also contended that the Respondent did not conduct due diligence on the bid for Athwax Consultants Limited and prayed for the bids to be re-evaluated as guided by the Tribunal and the Application to be allowed.

### $C.$ **RESPONDENT'S SUBMISSIONS**

- The Respondent submitted that the Evaluation Committee 1. followed the Evaluation Criteria specified in the bidding document and found that $M/s$ Athwax Consultants Limited had the requisite experience and deserved the awarded score. - $2.$ The Respondent averred that they contacted both the proposed *Malaba Phillip Davis* and the Electrical Engineer. Eng. Environmental Specialist, Mr. Hassan Lubega, by email, but only Eng. Malaba Phillip Davis responded confirming his association with MBJ Technologies Limited and that the Applicant's bid was thus scored accordingly. - $3.$ Regarding the alleged de-registration of Athwax Consultants Ltd, the Respondent submitted that the bidder is an existing company

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having converted from a Single Member Company known as Athwax Consultants -SMC Limited under Certificate of Conversion registration No. 80020002350258 of September 21, 2023, to Athwax Consultants Ltd and that both certificates were submitted in the bid.

- 4. The Respondent submitted that post qualification evaluation was not undertaken because it was not part of the evaluation criteria in the solicitation document and that the criteria stated in the solicitation document was sufficient to fulfil the objectives of the procurement. - 5. The Respondent averred that the Notice Following Technical Evaluation for Consultancy Services containing scores for the technical evaluation, was displayed on the Respondent Entity's Notice Board on July 30, 2024, and copies sent to participating bidders through Post Office Mail on 7th August 2024. - 6. The Respondent prayed for the Application to be dismissed with costs.

#### $D.$ SUBMISSIONS BY ATHWAX CONSULTANTS LTD

1. The Best Evaluated Bidder averred that it has successfully executed multiple projects that encompass drainage works, earthworks, subbase crushed stone base, asphalt concrete wearing surfaces, and modern urban road safety signage and are directly relevant to the assignment in question in the last five years. The Bidder cited projects such as *provision of consultancy services for design of Kanuuma Road (7KM) and Nkamwesiga Road* (2.5 KM), provision of consultancy services for supervision of improvement of Matooke Market to tarmac in Western Division, *Consultancy services for supervision of construction of storm water* drainage for Mwanjari Business Centre, Mukombe Road along Katuna Highway and consultancy Services for Design and *Construction Supervision of 5-star, Ankole Resort Hotel in Ntungamo Municipality.*

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- $2.$ The Best Evaluated Bidder submitted that it was duly incorporated on 30th January 2020 as Athwax Consultants - SMC LTD and converted into a private company limited by shares on September 21, 2023, with the new name Athwax Consultants Limited. - The bidder relied on a letter from the Register of Companies dated 3. August 29, 2024, to submit that it has never been deregistered, as argued by the Applicant. - The best-evaluated bidder also contended that its authorized $4.$ representative, *Phillip Kakuru*, contacted both proposed Electrical Engineer, Eng. Malaba Phillip Davis and the Environmental Specialist, Mr. Hassan Lubega and in course of their respective telephone conversations, consented to, authorized the use of their curriculum vitae, and agreed to collaborate with *Athwax Consultants Limited* in the event of award of the tender. - $5.$ The best-evaluated bidder prayed that the Tribunal dismisses the Application and upholds the decision of the Respondent's Accounting Officer.

### $\mathbf{E}$ . THE ORAL HEARING

- The Tribunal held an oral hearing via the Zoom Cloud Application on 1. September 10, 2024. The appearances were as follows: - For the Applicant Benjamin Mushabe, the Authorised $1)$ Representative of the Applicant. In Attendance were Simon Peter Odoch, the Resident Engineer, and Daisy Anena, the Highway Engineer - For the Respondent *Alauterio Ntegyerize*, the Senior Legal Officer $2)$ of the Respondent, together with Dinah Mwije, the Senior Procurement Officer of the Entity/Respondent - For Athwax Consultants Limited as an interested party, Bernard $3)$ Ayinamanyi, the Legal Officer, and *Phillip Kakuru*, the Authorised Representative of *Athwax Consultants Limited*.

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#### $\mathbf{F}$ . **RESOLUTION BY THE TRIBUNAL**

- $1.$ The Tribunal has considered the pleadings, the bids, the bidding document and the submissions. The Application and the Response to the Application raised three grounds or issues that the Tribunal has framed as follows: - *Whether the Application before the Tribunal is competent?* $(i)$ - Whether the Respondent erred in law when it did not display the $(ii)$ scores for technical bids before the opening of financial proposals or omitted to avail the Applicant with scores for technical bids before *the opening of financial proposals?* - (iii) Whether Athwax *Consultants* Limited's bid was lawfully determined to be the best-evaluated bid by the Respondent? - *What remedies are available to the parties?* $(iv)$

# Issue 1- Whether the Application before the Tribunal is competent?

- $2.$ The Tribunal is duty-bound to inquire into the existence of the facts to decide whether it has jurisdiction. This is because Jurisdiction must be acquired before judgment is given. As such, the Tribunal must inquire into the facts of whether the Applicant has the locus to file an application before it and, secondly, whether the Tribunal is seized or clothed with Jurisdiction to interrogate the merits of the Application before it. See **Application** No. 31 of 2024, JILK Construction Limited Vs Kira Municipal Council. - 3. 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 or not

### Page 9 of 17 he has a case worth listening to. See *Njau & Others vs. City* Council of Nairobi [1976-1985] 1 EA 397 at 407.

## $4.$ In Owners of Motor Vessel "Lillian S" Vs Caltex Oil (Kenya) **Ltd (1989) KLR 1**, Justice Nyarangi JA (as he then was) stated:

"...... A question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, court has no power to make one more step. Where court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence. A court of law downs tools in respect of a matter before it the moment it *holds the opinion that it is without jurisdiction*"

5. Section 106(9) of the **Public Procurement and Disposal of Public Assets Act Cap 205** states as follows.

"Where a bidder believes that the Accounting Officer has a conflict of interest in respect of the complaint, omission or breach that would be made under this section or that the matter cannot be handled impartially by the procuring and disposing entity, the bidder shall make an application to the Tribunal for determination of the complaint, omission or breach"

- 6. The Applicant, in paragraphs 11(i) to (iv) and 12 on pages 3-4 of the Application, pleaded that the Respondent is not impartial and stated as follows. - 11. The Applicant is not satisfied with the evaluation of the bid of *Athwax consultants Limited and therefore seeks a merits review from the Tribunal for the following reasons.* - The Applicant complained about the non-display of technical $(i)$ scores by the Respondent but received no response regarding the same - (ii) The Applicant filed an administrative review Compliant with the *Respondent, challenging the non-display of the technical scores.*

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- (iii) The Respondent did not suspend the procurement process on August 15, 2024, upon receipt of the Applicant's Complaint but blatantly proceeded to open financial proposals on August 17, 2024, in an unprecedented rush, yet the bid document required a *waiting period of 7 days before opening of financial proposals* - The Respondent went ahead to conduct a financial evaluation of $(iv)$ bids and even displayed the best evaluated bidder notice on August 21, 2024 before responding to the Applicant's complaint on August 23, 2024 when it had already achieved its ulterior motives - On the premise of the reasons provided above, the Applicant $12.$ believes that its challenge of the evaluation of the bid of Athwax Consultants Limited is a matter that cannot be handled impartially by the Respondent and only an external body like the *Tribunal can independently review the evaluation of bids* objectively. - 13. The Applicant therefore applies directly to the Tribunal pursuant to Section 106 (9), 115(1)(c) of the PPDA Act Cap 205 and Reg 9(5) of the PPDA (Administrative Review) Regulations 2023 for review of the evaluation of the bid of Athwax Consultants Limited - $7.$ Section 115 (1)(c) of the **Public Procurement and Disposal of** Public Assets Act, Cap 205 provides that a bidder who believes that the Accounting Officer has a conflict of interest as specified in section $106$ (9) can apply to the Tribunal for review. This means that an Applicant whose application is hinged on the premise or belief that the Accounting Officer has a conflict of interest has direct access to the Tribunal without having to first file a complaint before the Accounting Officer. See Application No. 22 of 2024 - Magobe Badiru v Sironko District Local Government. - 8. Existence of a conflict of interest is a question of both law and fact. Conflict of interest as a real or seeming incompatibility between one's private interest and one's public or fiduciary duties. Page 11 of 17

It is both the actual and the perception that counts when tracing conflict of interest in a transaction. It is what a reasonable person would conclude while viewing the transaction from a distance that counts. It is related to the rule against bias. **See Application No.** 18 Of 2024 - Kacyber Security Technologies Ltd Vs Mbarara City Council.

- 9. The Public Procurement and Disposal of Public Assets Act Cap **205** does not define the meaning of the adverb "impartially" as used in the text of Section 106 (9). - 10. However, Courts of law in Uganda have guided that the noun "impartiality" is "... a principle of justice holding that decisions should be based on objective criteria rather than on the basis of bias, prejudice or preferring the benefit to one person over the other for improper reasons". See the judgement of Sekaana J in V Attorney General (Miscellaneous Baruaruha Cause-2016/149/2019/UGHCCD 67. - The Merriam-Webster dictionary defines 'conflict of interest' as 'a $11.$ *conflict between the private interests and the official responsibilities* of a person in a position of trust'. - Private interest is also known as 'self-interest' and is defined by 12. the Merriam-Webster Dictionary as 'a concern for one's own *advantage and well-being' or 'one's own interest or advantage'.* - 13. Conflict of interest for a public officer entails a confluence of private interest and public interest. The Merriam-Webster dictionary defines '*public interest*' as '*the general welfare and rights* of the public that are to be recognized, protected, and advanced', 'a specific public benefit or stake in something', or 'the concern or *attention of the public'.* - $14.$ The 10th Edition of Black's Law Dictionary defines a Conflict of Interest as 'a real or seemingly incompatibility between one's private interests and one's public or fiduciary duties.'

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## 15. In the case of **Uganda vs Patricia Ojangole Criminal Case No.** 1/2014, Justice Gidudu held that.

"Conflict of interest has also been generally defined as any situation in which an individual or corporation is in position to exploit a professional or official capacity in some way for their personal or corporate benefit"

- 16. Comparatively and nearer to home in the Republic of Kenya, Justice Mwita in Belvin Wanjiru Namu v National Police Service Commission & another [2019] eKLR, at paragraphs 23 and 24, defined conflict of interest as: [A] situation where an individual has interests or loyalties competing against each other. It involves dual relationships where person in a position in one *relationship* is in another competing relationship in another position such that the person has conflicting responsibilities. - 17. In the **Belvin** case (referenced above), the learned judge further elaborated that conflict of interest is to the effect that a public officer should use the best efforts to avoid being in a situation where personal interest conflicts with the officer's official duties. In that case, a conflict of interest would arise where a person finds oneself confronted by two different interests so that serving one interest would be against the other. For there to be a conflict of interest in the petitioner's case, her participation in the business while at the same time performing duties as a police officer should be shown to have been inconsistent, incompatible, and prejudicial to her official duties. Furthermore, Justice Mwita, in paragraphs 25-27, 29 and 31 of the judgement, held that there should be evidence that the person actually acted in favour of the selfinterest as opposed to public interest and that the occurrence of the conflict of interest must be 'clear and manifest'. - 18. It therefore goes without saying that 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. It is not enough for one to state that they believe that the Accounting

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Officer has a conflict of interest in respect of the complaint, omission, or breach or that the matter cannot be handled impartially by the procuring and disposing entity. The basis of that belief must be shown to the satisfaction of the Tribunal. This is because the burden of proving any fact that is within the knowledge of any person is upon that person alleging the fact as per section 106 of the **Evidence Act. Cap 8**.

- 19. To challenge administrative action successfully on personal bias, it is essential to prove that there is a "reasonable suspicion of bias" or "real likelihood of bias". See **Metropolitan Properties Ltd** vs Lannon [1968] 3 All ER 304. - 20. The Supreme Court of Nigeria has in Mohammed Oladapo Ojengbede v. M. O. Esan (Loja-Oke) (S. C. 132/1991) [2001] **NGSC** 58, while dealing with cases involving allegations of bias or real likelihood of bias or impartiality guided as follows;

"There must be cogent and reasonable evidence to satisfy the" court that there was in fact such bias or real likelihood of bias as alleged. In this regard, it has been said, and quite rightly too, that *mere vague suspicion of whimsical and unreasonable people* should not be made a standard to constitute proof of such serious complaints" See also R. v. Sussex Justices, Ex parte McCarthy (1924) 1 K. B. 259 and R. v. Camborne Justices & Anor Ex parte Pearce (1955) 1 Q. B. 41.

- $21.$ It is important that fanciful and unmeritorious allegations of bias are discouraged and that there is proper regard to the context in which the issue arises. A line must be drawn between genuine and fanciful allegations of bias. Allegation of bias on imaginary basis cannot be sustained. See Federation of Railway Officers Association v Union of India (2003) 4 SCC 289, which was relied upon by Sekaana J in Baryaruha v Attorney General (miscellaneous cause-2016/149) [2019] UGHCCD 67. - 22. An Applicant bears the onus to demonstrate that its complaint or matters arising out of the impugned procurement could not be handled impartially by the Accounting Officer of the procuring and

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disposing entity or that the Accounting Officer has a conflict of interest in respect of the complaint, mission or breach to the satisfaction of the Tribunal. The Applicant must adduce cogent and reasonable evidence to satisfy the Tribunal that there was, in fact, such partiality or real likelihood of partiality or conflict of interest. See Application 24 of 2024, Rhino Engineering Works Limited v Otuke District Local Government. Application No. 31 of 2023 Consortium of EAA Company LTD and East Africa Auto Technical Testing v UNBS and Application No. 32 of 2023 Auto Terminal Japan Limited, Pal Auto Garage Ltd, Africa Automotive Analysis Ltd JV and Application 18 of 2021, Abasamia Hwolerane Association Ltd Vs. Jinja City Council.

- 23. This Tribunal has, however, previously held that there is no need to prove that the Accounting Officer is actually biased or partial or has a conflict of interest. The requirement is to demonstrate a sincere belief, and the basis for that belief, that the Accounting Officer has a conflict of interest in respect of the complaint, omission, or breach or that the matter cannot be handled impartially by the procuring and disposing entity. See Application No.07 of 2022 SMS Construction Ltd, Farrin YYISVT Ltd & STI Joint Venture v Ministry of Justice and Constitution Affairs. - 24. The Applicant merely alleged "lack of impartially by the respondent" but has not adduced cogent and reasonable evidence to satisfy the Tribunal that there was, in fact, such partiality or real likelihood of partiality as alleged. - 25. The Applicant did not adduce any evidence to show a clear and manifest partiality on the part of the Accounting Officer or that the Respondent acted in favour of self-interest as opposed to public interest. - 26. The Applicant's allegations of any omission or breach by a procuring and disposing entity of the Act, regulations or guidelines or any provision of the bidding documents are not evidence of a conflict of interest because the Public Procurement and Disposal Page 15 of 17

of Public Assets Act Cap 205 prescribes a remedy for the said breach by making a complaint to the Accounting Officer. The mere making of an allegedly wrong decision does not of itself imply conflict of interest or partiality.

- 27. The Applicant, therefore failed to discharge the said burden, and as such, the Tribunal cannot clothe itself with jurisdiction to hear the Application brought under section 106(9) of the **Public** Procurement and Disposal of Public Assets Act Cap 205. The Application is, therefore, incompetent. - 28. This issue is answered in the negative. - 29. In view of our finding under issue No.1, it is not necessary to interrogate the merits of the Application and the Applicant is not entitled to any remedy. The Respondent is entitled to continue with the procurement process.

## $G$ . **DISPOSITION**

- 1. The Application is struck out. - $2.$ The Respondent may continue with the procurement to its logical conclusion. - 3. The Tribunal's suspension order dated August 28, 2024, is vacated. - $4.$ Each Party is to bear its costs.

Dated at Kampala this 16<sup>th</sup> day of September 2024.

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

Meum

**NELSON NERIMA MEMBER**

muce

PAUL KALUMBA **MEMBER**

**CHARITY KYARISIIMA MEMBER**

TITUS AOMU S **MEMBER**

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