Meera Investment Limited v National Lotteries Board and Another (Application 44 of 2024) [2024] UGPPDPAAT 42 (5 November 2024)

Full Case Text

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

**APPLICATION NO. 44 OF 2024**

### **BETWEEN**

MEERA INVESTMENT LIMITED ==================APPLICANT

### AND

- 1. NATIONAL LOTTERIES AND GAMING **REGULATORY BOARD** 2. RIVERSTONE AFRICA LTD/ - GRAND CAPITAL REALITY =================RESPONDENTS

APPLICATION FOR REVIEW IN RESPECT OF THE PROCUREMENT FOR PROVISION OF 1,000 SQMS OF OFFICE SPACE FOR 3 YEARS RENEWABLE UNDER PROCUREMENT REFERENCE NUMBER NLGRB/N-CONS/23-24/00123

**BEFORE: NELSON** NERIMA, PAUL KALUMBA, **CHARITY** KYARISIIMA, AND KETO KAYEMBA, MEMBERS

### DECISION OF THE TRIBUNAL

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

- $1.$ The National Lotteries and Gaming Regulatory Board (the 1st Respondent) initiated a procurement for provision of 1,000 sams of office space for 3 years renewable under procurement reference number NLGRB/N-CONS/23-24/00123 using open bidding method on May 29, 2024. - Bids were received from 10 (ten) bidders namely; Meera $2.$ Investments Ltd (the Applicant), The Bible Society of Uganda Holdings Ltd, Imperial Group of Hotels, Knight Frank (U) Ltd, Twed Property Development Ltd, Re/max Acacia Place. Riverstone Africa Ltd (the 2nd Respondent), Eclipse Property Ltd, Bagaine & Co Advocates Ltd and Rumee Investments Ltd on June 20, 2024. - $3.$ Upon conclusion of evaluation and adjudication of the procurement process, on August 7, 2024, the 1st Respondent issued a best evaluated bidder notice for award of the contract for 1,154 sqm to Riverstone Africa Ltd (on behalf of Grand Capital Reality) Grand Luthuli House as the Best Evaluated Bidder at a total contract price of UGX $72,252,863.2/$ = per month VAT inclusive (UGX 867,034,358/= VAT Inclusive per year). - $4.$ The award to *Riverstone Africa Ltd* (on behalf of Grand Capital *Reality)* Grand Luthuli House was successfully challenged by the Applicant through an administrative review complaint filed on August 16, 2024. The Accounting Officer of the 1st Respondent found merit in the Complaint and in a decision communicated on August 23, 2024, directed that the bids in the impugned procurement be re-evaluated. - 5. The bids were subjected to a re-evaluation on September 12, 2024, the 1st Respondent issued a Best Evaluated Bidder Notice for award of the contract for 1,154 sqm to Riverstone Africa Ltd (on behalf of Grand Capital Reality) Grand Luthuli House as the Best Evaluated Bidder at a total contract price of **UGX** $72,252,863.2$ per month VAT inclusive (UGX $867,034,358$ = VAT Inclusive per year).

- 6. The Best Evaluated Bidder Notice also stated that the Applicant's bid was disqualified at the technical evaluation stage for the following reasons: - Environmental Consideration with the building being $(i)$ located on a busy street with lots of noise from taxi operators and other street vendors. - (ii) Failure to have lifts thus making the building noncompliant. - (iii) Lack of disability access. - (iv) Failure to meet the office space requirements of 1,000 sqm. - 7. The Applicant filed an administrative review complaint with the 1st Respondent on September 25, 2024, challenging the outcome of procurement process. The Accounting Officer of the 1st Respondent dismissed the Applicant's complaint by letter dated October 2, 2024 but delivered on October 3, 2024. - 8. The Applicant being dissatisfied with the decision of the Accounting Officer of the 1st Respondent, filed the instant application with the Tribunal on October 16, 2023, seeking to review the decision of the 1st Respondent. The Applicant also named Riverstone Africa Ltd/Grand Capital Reality as the 2nd Respondent. - 9. The Applicant's complaint is premised on three grounds: - Riverstone Africa Ltd was not an eligible bidder. It was a $(i)$ mere agent of Grand Capital Reality and could not submit a bid in its name. - $(ii)$ The property offered by *Riverstone Africa Ltd* does not meet the specification because it did not have ramps and turnstiles for disability access. - (iii) The property offered by *Riverstone Africa Ltd* does not meet the space requirement of 1,000 sqms excluding washrooms and general circulation areas but instead offers 529-577 sqms excluding washrooms and general circulation areas. - (iv) The property offered by *Riverstone Africa Ltd* is located near a busy road which is noisy

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- The Applicant's bid was restrictively and erroneously $(v)$ evaluated by the evaluation committee with respect to environmental considerations; lifts; disability access; and office space requirements. - (vi) The bid of *Twed Property Development* does not comply with the internal height for floor and ceiling requirement. - (vii) The bid of Twed Property Development did not comply with the requirement for ramps and turnstiles for disabled access. - 10. The Applicant filed written submissions through Walusimbi & Co. Advocates - The 1st Respondent filed a response to the Application through 11. Attorney General's chambers on October 22, 2024, and written submissions through the same chambers on October 25, 2024. - 12. The $2nd$ Respondent also filed a response to the Application through Okecha Baranyanga & Co. Advocates on October 21, 2024, and written submissions through the same chambers on October 25, 2024.

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

- 1. The Tribunal held an oral hearing via Zoom on October 31, 2024. The appearances were as follows: - $1)$ Mr. Walusimbi Nelson appeared for the Applicant. - $2)$ Mr. Geoffrey Madete, the Principal State Attorney from the Attorney General's office appeared for the 1st Respondent. - Mr. Joachim Ssenkatuuka, Mr. Michael Okecha and Mr. Saad $(3)$ Seninde appeared for the $2^{nd}$ Respondent. (Best Evaluated Bidder).

In attendance were;

Mr. Prabhat Mishra, a representative of the Applicant and Ms. Adrine Otunga, the Acting Manager Legal of the 1st Respondent.

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#### $\mathbf{C}$ . **RESOLUTION**

- $1.$ The Tribunal has considered the pleadings, perused the bids, the bidding document, and the submissions. The Application raised 4 issues. - $2.$ In view of the responses and submissions, the Tribunal has framed the issues as follows: - $(i)$ Whether the Application before the Tribunal is competent? - (ii) Whether the $2^{nd}$ Respondent was an eligible bidder? - (iii) Whether the 1st Respondent erred when it disqualified the Applicant's bid? - (iv) Whether the bid of the $2^{nd}$ Respondent was responsive to the requirements of the bidding document? - (v) What remedies are available to the parties?

## Issue No.1:

# **Whether the Application before the Tribunal is competent?**

- $3.$ The 1st Respondent's counsel raised a point of law that the Applicant is not a bidder because its bid expired on September 30, 2024. - $4.$ Counsel for the Applicant contended that the Applicant extended its bid validity vide a letter attached to the administrative review complaint to the 1st Respondent's Accounting Officer. - 5. Under section 115 (1) of the *Public Procurement and Disposal of* Public Assets Act, Cap 205 on which this application is premised, a bidder who is aggrieved, as specified in section 106 $(7)$ or $(8)$ may apply to the Tribunal for review of a decision of a procuring and disposing entity. - 6. A "bidder" means a physical or artificial person intending to participate or participating in public procurement or disposal Page 5 of 9

proceedings. See section 2 of the Public Procurement and *Disposal of Public Assets Act, Cap 205*

- 7. Regulation 62 $(1)$ , $(2)$ and $(5)$ of the Public Procurement and Disposal of Public Assets (Rules and Methods for Procurement of Supplies, Works and Non-Consultancy Services) Regulations, 2023 provides that the bidding documents shall state the date up to which a bid shall be valid; and that a bid shall remain valid until the close of business on the last day of the validity period. Where an extension to the bid validity period becomes necessary, a bidder shall be requested in writing, before the expiry of validity of their bid, to extend the validity for a specified period. - 8. Where an administrative review complaint has been filed before an Accounting Officer, it is now mandatory for the Accounting Officer to immediately suspend the procurement process and request the bidders to extend the period of the bid validity and bid security for the duration of the suspension. See sections 106(5) and 106 (6) of the *Public Procurement and Disposal of Public Assets Act Cap 205.* - $9.$ The bidding document under ITB 18.1 in Part 1 Section 2, Bid Data Sheet at page 25, required the bids to be valid until September 30, 2024. - 10. The Applicant in its bid submission sheet stated that its bid would be valid until September 30, 2024. - $11.$ The Tribunal notes that, the Accounting Officer of the 1st Respondent, upon receipt of the application for administrative review on September 25, 2024, did not request the bidders to extend the validity of their bids and the bid securities yet he was aware that the initial bid validity was due to lapse on September 30, 2024. This was a blatant breach of the law. - 12. Nonetheless, under regulation 62 (6) of the *Public Procurement* and Disposal of Public Assets (Rules and Methods for *Procurement of Supplies, Works, and Non-Consultancy Services)* Regulations, 2023 a bidder may on his or her own discretion

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extend the bid validity period where the procuring and disposing entity delays requesting the bidder to extend the bid and the bid validity period is likely to expire before the completion of the procurement process.

- 13. The Applicant lodged an administrative review complaint before the 1st Respondents Accounting Officer vide a letter from Walusimbi & Co. Advocates dated September 25, 2024. - 14. We have not found any proof in the Procurement Action File submitted to the Tribunal, to show that the Applicant utilised the self-help remedy prescribed in the aforesaid regulation 62(6) to extend the validity of its bid beyond September 30, 2024. - 15. After the hearing, the firm administrator of *Walusimbi* & Co. Advocates lodged, by e mail, a purported bid extension letter dated September 25 2024. - 16. The purported letter is not on the Procurement Action File. We are convinced that the said letter was not attached to the administrative review complaint as alleged by the Applicant's counsel. The said administrative review complaint does not even mention that a bid extension letter was attached. In the Application to the Tribunal, the Applicant does not mention that it extended its bid validity. There is no evidence of who delivered the letter, and who received it. - If this document was genuine, the Applicant would have 17. produced it at the earliest opportunity after the 1st Respondent had raised the objection relating to bid expiry. Since the matter was contentious, the Applicant would also have presented evidence of delivery at the hearing. The purported bid extension letter appears to be an afterthought. The letter was also introduced in a very casual manner and we are not satisfied that the Applicant has discharged the evidential burden to prove bid validity extension. - 18. Therefore, after September 30, 2024, the Applicant ceased to be a bidder within the meaning of section 2 of the Public Procurement and Disposal of Public Assets Act. The Applicant, not being a bidder anymore, had no *locus standi* to apply to the Tribunal before the Tribunal on October 16, 2023 under section 106 (7) of the Public Procurement and Disposal of Public Assets Act.

## See Application No. 3 of 2022-VCON Construction (U) Ltd Vs. Makerere University.

The instant application is therefore incompetent and there is no 19. need to delve into the merits of the Application.

#### D. **DISPOSITION**

- $1.$ The Application is struck out. - $2.$ The Tribunal's suspension order dated October 17, 2024, is vacated. - 3. Each party is to bear its own costs.

Dated at Kampala this 5th day of November, 2024.

Munic

**NELSON NERIMA MEMBER**

PAUL KALUMBA **MEMBER**

**CHARITY KYARISIIMA MEMBER**

**KETO KAYEMBA MEMBER**