Palm Construction Company Limited v Ministry of Agriculture, Animal Industry and Fisheries (Application 45 of 2024) [2024] UGPPDPAAT 44 (13 November 2024)

## THE REPUBLIC OF UGANDA

# PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC ASSETS **APPEALS TRIBUNAL**

## **REGISTRY APPLICATION NO. 45 OF 2024**

### **BETWEEN**

## PALM CONSTRUCTION CO. LTD::::::::::::::::::::::::::::::::::::

### AND

## MINISTRY OF AGRICULTURE, ANIMAL INDUSTRY AND FISHERIES:::::::::::::::::::::::::::::::::::

APPLICATION FOR ADMINISTRATIVE REVIEW IN RESPECT OF THE PROCUREMENT BY MINISTRY OF AGRICULTURE, ANIMAL INDUSTRY AND FISHERIES FOR THE CONSTRUCTION OF CONSTRUCTION OF 4 ZONAL ANIMAL DISEASES CONTROL CENTRES UNDER AVCP-A (LOT 3-BUSUNJU ZONAL DISEASES CONTROL CENTRE) UNDER PROCUREMENT REFERENCE NO. MAAIF-AVCP/WORKS/2023-2024/00026-LOT 3

BEFORE: FRANCIS GIMARA S. C CHAIRPERSON; NELSON NERIMA; GEOFFREY NUWAGIRA KAKIRA: PAUL KALUMBA: CHARITY KYARISIIMA, KETO KAYEMBA; AND ENG. CYRUS TITUS AOMU **MEMBERS**

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## DECISION OF THE TRIBUNAL

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

- $\overline{1}$ . The Government of Uganda, represented by the Ministry of Agriculture, Animal Industry and Fisheries (MAAIF), received financing in various currencies from the African Development Bank (hereinafter called "AfDB") towards the cost of the Agricultural Value Chain Development Programme (AVCP) Project. - $2.$ The Ministry of Agriculture, Animal Industry, and Fisheries intends to apply part of the proceeds of this loan to eligible payments under the Contract for procurement of works for the construction of four proposed zonal animal disease control centres in various districts in Uganda. - 3. The Ministry of Agriculture, Animal Industry and Fisheries (hereinafter called "the Respondent") initiated a procurement for the construction of four zonal animal diseases control centres under AVCP-1 (Lot 3-Busunju Zonal Animal Diseases Control) involving *administration* blocks, staff accommodation, tyre and foot washes, loading and offloading ramps, spray races, cattle crush, livestock infrastructure, fencing, access roads, external works and landscaping, mechanical and electrical reticulation and site works under procurement reference No. MAAIF-AVCP/WORKS/2023-2024/00026-LOT $\mathbf{3}$ using Open **Competitive Building (OCB)** National Method. - 4. The Respondent received bids from six (6) bidders namely: F&S Uganda Limited, Area Plan Consults Limited, Palm Construction Co. Ltd (the Applicant), Egiss Engineering Contractors Limited. $\operatorname{CMD}$ Investment Ltd, and Siima *Construction Services Ltd.* - 5. On August 8, 2024, the Respondent displayed the Notice of Best Evaluated Bidder with a removal date of August 22, 2024. Page 2 of 11

The Notice indicated that F&S Uganda Limited was the bestevaluated bidder with a contract price of **Uganda Shillings** 2,718,839,650, exclusive of Value Added Tax (VAT).

- 6. The Notice of Best Evaluated Bidder also stated that the Applicant's bid was disqualified for having a higher bid price than that of the lowest evaluated compliant bidder. - $7.$ By a letter dated August 13, 2024, the Applicant filed a complaint with the Respondent's Accounting Officer, contending that - It is the lowest bidder by contract price from the bid prices $(i)$ read at bid opening - The contract price indicated for F&S *Uganda Limited* as the $(ii)$ Evaluated **Best** Bidder Notice (Uganda Shillings $2,718,839,650$ ) is completely different from the two prices that were read for the same company at bid opening i.e. (Uganda Shillings 2,478,645,935 and Uganda Shillings 2,843,816,150). - (iii) F&S Uganda Limited indicating two prices was a bidding error, and according to the PPDA Act, a bidder with an error is supposed to be immediately disqualified from the bidding process. - 8. In an email sent to *Plan Mugisha* (the Applicant's Managing Director) on October 10, 2024, by the Respondent's Assistant Commissioner in charge of Procurement, Stanley Ahabwe, reference was made to an earlier telephone conversation regarding the Applicant's objection to the Notice of Best evaluated Bidder. The Respondent also reminded the Applicant administrative review fees of **Uganda Shillings** to pay **5,000,000** before October 14, 2024, stating that failure to pay would indicate disinterest in the procurement process. - 9. On October 18, 2024, the Applicant responded to *Stanley Ahabwe's* email, apologising for the delayed response,

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expressing willingness to pay the administrative review fees, and reiterating interest in the procurement process.

- 10. On October 21. 2024, the Respondent's Assistant Commissioner in charge of Procurement, Stanley Ahabwe, informed the Applicant's Managing Director, Plan Mugisha, by email that the deadline for payment of administrative review fees had elapsed, and the Respondent could no longer address the complaint. - 11. The Applicant, dissatisfied with the Respondent's decision, filed the instant application with the Tribunal on October 25, 2024. seeking to review the Respondent's omissions, actions, and decisions. - 12. The Application was by ordinary letter and did not raise any specific issues for determination for the Tribunal. However, a perusal of the facts reveals the following issues for determination. - $(i)$ *Whether the Application is competent before the Tribunal* - $(ii)$ Whether the Respondent erred in law and fact in evaluating the Applicant's bid. - (iii) Whether the Respondent erred in law in determining $F\&S$ *Uganda Limited* as the best-evaluated bidder. - (iv) *What remedies are available to the parties?* - 13. The Respondent filed a response and contended that the Applicant did not accompany the complaint with proof of having paid administrative review fees despite several meetings held between the Respondent's Accounting Officer and the Applicant. Furthermore, the Respondent stated that the Respondent's Assistant Commissioner in charge of Procurement reminded the Applicant through emails and telephone calls to pay the administrative review fees in vain and that, to date, the Applicant had not paid the administrative review fees.

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$14.$ The Tribunal invited **F&S Uganda Limited** to respond to the application and attend the hearing if they wished. **F&S Uganda** *Limited* did not respond.

#### $B.$ THE ORAL HEARING

- 1. The Tribunal held an oral hearing on 7<sup>th</sup> November 2024 at the Tribunal's office premises. The appearances were as follows: - Francis Harimwomugasho, assisted by Buyinza Mark, was $1)$ the Applicant's counsel. Plan Mugisha, the Applicant's Managing Director, and Waswa Joel, an administrator, were also in attendance. - Fred Mayanja, the Commissioner for Agricultural Planning $2)$ and Development, acting for and on behalf of the Respondent's Accounting Officer. Also in attendance was Stanley Ahabwe, Assistant Commissioner in charge of Procurement. Amanyire Willington, a project engineer and member of the evaluation committee, *Naboth Katongole*, a Senior Procurement Officer, and Munyagwa Peter, a procurement officer - The Tribunal noted that $F\&S$ *Uganda Limited* (the best $2.$ *evaluated bidder*), though invited by the Tribunal, did not attend the hearing.

#### $C.$ **SUBMISSIONS**

The parties highlighted their written submissions and made oral submissions as follows:

# **Applicant**

1. Counsel for the Applicant adopted its written submissions filed on November 1, 2024, and orally submitted that failure to pay administrative review fees or court filing fees cannot invalidate a suit or action as per the Supreme Court decision in *Lawrence* Muwanga Vs Stephen Kyeyune SCCA No. 12 of 2001.

$2.$ Counsel for the Applicant contended that the Applicant had no Page 5 of 11

knowledge of the email purportedly sent by the Respondent on October 10, 2024, but only became aware of its contents on October 18, 2024, when he claims to have accessed their email. The Applicant submitted that the service of court process by email is effective upon the receiver opening the document as per the decision of the High Court in *Male Mabirizi vs Attorney* General, Miscellaneous Application No. 918 of 2021.

- 3. Counsel submitted that it was, therefore, unfair for the Compliant to be dismissed on October 21, 2024, when the window for paying administrative review fees had lapsed without the Applicant's knowledge. - 4. Counsel averred that it was illegal for the Respondent to award the Contract to **F&S Uganda Limited**, who had fraudulently submitted two bid prices of Uganda Shillings 2,478,645,935 and Uganda Shillings 2,843,816,150) and that this was an illegality that the Tribunal must not close its eyes to. - 5. Counsel prayed that the Tribunal quashes the Respondent's decision and orders the Respondent to pay the Applicant's costs.

## **Respondent**

- The Respondent reiterated that the Applicant did not pay $6.$ administrative review fees and that the Accounting Officer had no duty to investigate the complaint where the prescribed administrative review fees were not paid as per Section 98 $(3)(a)$ of the PPDA Act, 2003 and as such, the Complaint did not fulfil the statutory conditions, and the Respondent did not entertain it. - 7. The Respondent submitted that in evaluating the bid of $F&S$ **Uganda Limited**, a price adjustment was made on the summary page of the Bill of Quantities, adjusting **F&S Uganda** Limited's bid price of Uganda Shillings 2,478,645,935 (in the best evaluated bidder's submission sheet) by **Uganda Shillings** Page 6 of 11 240,193,715 bringing it to Uganda Shillings 2,718,839,650 in accordance with ITB 32.4(a) of the bidding document. That there was nothing illegal in making an adjustment to the bid price of F&S Uganda Limited using the corrected price adjustment that was made by the Evaluation committee of the Respondent on the summary page of the Bill of Quantities.

#### $D.$ **RESOLUTION BY THE TRIBUNAL**

# Issue no. 1

# Whether the Application is competent before the Tribunal.

- 1. Under Section $115(1)(a)$ -(c) of Public Procurement and Disposal of Public Assets Act Cap 205, an Application to the Tribunal for review of a decision of a procuring and disposing entity can only be made by - a bidder who is aggrieved, as specified in section 106 (7) or $(i)$ $(8);$ - a person whose rights are adversely affected by a decision $(ii)$ made by the Accounting Officer; and - (iii) a bidder who believes that the Accounting Officer has a conflict of interest as specified in section $106$ (9) - $2.$ The Applicant is a bidder who participated in the impugned procurement and filed an administrative review complaint before the Respondent's Accounting Officer on August 13, 2024. - 3. Under section 106(7) of the *Public Procurement and Disposal of Public Assets Act*, the Accounting Officer must mandatorily, within ten days of receipt of a complaint, make and communicate a decision, in writing, addressed to the bidder who makes the complaint, and which shall indicate the reasons for the decision taken and the corrective measure to be taken, if any. - 4. The time stated to run on August 14, 2024 and lapsed on August 23, 2024. By that date, the Accounting Officer had not made or communicated a decision regarding the complaint made by the Applicant.

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- $5.$ We observed that the email communications between *Stanley Ahabwe* of the Respondent and *Plan Mugisha* of the Applicant on October 21, 2024, indicated that the Respondent did not investigate the complaint, make a decision, or communicate a decision to the Applicant because the prescribed fees for administrative review were not paid to the Respondent by October 14, 2024. - 6. The Tribunal has consistently interpreted Section $106(3)(a)$ of the Public Procurement and Disposal of Public Assets Act together with Regulation 7(4) of the *Public Procurement and Disposal of Public* (*Administrative Review*) *Regulations*, *Assets* $2023$ on the requirement for a complaint to be accompanied with payment of the fees prescribed and guided that late payment of filing fees is not necessarily fatal, and even actual non-payment of court fees is not to be fatal so long as the proper fees can be accessed and paid. See Vision Scientific & Engineering Limited vs Makerere University, Applications No. 26 and 27 of 2022, Ssamanga Eelcomplus JV vs Uganda Electricity Distribution Company Limited, Application No.17 of 2021, Kasokoso Services **Limited** $\upsilon$ s Jinja School of Nursing $and$ Midwiferu. Application No. 13 of 2021. - 7. In so holding, the Tribunal was guided inter alia by the case of Lawrence Muwanga v Stephen Kyeyune (Legal Representative of Christine Kisamba, deceased) Supreme Court Civil Appeal No. 12 of 2001. - 8. Therefore, where the Applicant had indicated its willingness to pay the administrative review fees required by the Respondent in its email of October 18, 2024, it became incumbent on the Applicant to pay the required **Uganda Shillings 5,000,000** using the Uganda Revenue Authority e-payment system. See Guide No. 3 of *Guideline No. 7 of 2024 Administrative Review Fees.* - 9. To date, the Applicant has not demonstrated that it later paid the assessed administrative review fees.

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- $10.$ Nonetheless, having found that the Respondent's Accounting Officer ought to have made or communicated a decision to the complainant not later than August 23, 2024, it follows that any other communication between the Respondent and the Applicant post August 23, 2024, were inconsequential. It follows that the Respondent did not make or communicate a decision to the Applicant within the statutory timeframe set by the law. - 11. The Respondent's Accounting Officer having failed to make and communicate an administrative review decision within the statutory timeframe, the purported communications with the Applicant after August 23 2024 were superfluous and inconsequential. - 12. The law prescribes that where an Accounting Officer does not make a decision or communicate a decision within the period specified in subsection (7), the bidder may make an application to the Tribunal, in accordance with Part VIIA of this Act and specifically within ten days from the date of expiry of the period within which the Accounting Officer ought to have made and communicated his administrative review decision. See sections 106(8), $116(1)(a)$ and $116(2)(b)$ of the Public Procurement and Disposal of Public Assets Act Cap 205. - 13. The time of reckoning for the Applicant to come to the Tribunal after failure to obtain an Accounting officer's decision, commenced on August 24, 2024 and lapsed on September 2, 2024. - At the hearing, when questioned why the Applicant did not 14. immediately file an application before the Tribunal upon the expiry of the 10 days allowed under the law for an Accounting Officer to make and communicate a decision, the Applicant responded that it was not aware of the law or the timelines prescribed for filling an application before the Tribunal in the absence of a decision by an Accounting Officer.

15. The Tribunal empathises with the Applicant's ignorance of the law. Page 9 of 11

However, for ages now, the law has firmly stood on the foundation of the Latin maxim, "ignoratia juris non excusat" - ignorance of the law or court procedure is untenable. See the decision of Hon. Mr. Justice Bashaija K. Andrew in Byansi Elias and anor v. Kiryomunju Tofasi, HCT - 05 - CV - CA - 029/2010, 2013 UGHCCD 104.

- 16. The timelines within the procurement statute were set for a purpose and are couched in mandatory terms. There is no enabling provision within the Public Procurement and Disposal of Public Assets Act that gives the Tribunal the power to enlarge or extend time set by law to address a complaint. Once a party fails to move within the time set by law, the jurisdiction of the Tribunal is extinguished as far as the matter is concerned. See *Eclipse* Edisoil JVC Ltd vs Napak District Local Government, High Court (Civil Appeal) No. 05 of 2024, (arising out of Tribunal *Application No. 33 of 2023- Eclipse Edisoil JVC Ltd vs Napak District* Local Government) and Application No. 29 Of 2024- Clear View Investments Ltd vs Mbarara University School of Science and Technology (MUST) and Application No. 25 Of 2024- Achelis Uganda Ltd vs Ministry of Lands, Housing and Urban Development. - 17. The instant Application lodged with the Tribunal on **October 25**, **2024,** is outside the time prescribed under sections $106(8)$ , 115(1)(a) and 115(2)(b) of the Public Procurement and Disposal of Public Assets Act Cap 205. - 18. The upshot of our finding is that the Application is incompetent. In the circumstances, we shall not delve into the Application's merits.

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

- The Application is struck out. $1.$ - $2.$ The Tribunal's suspension order dated October 25, 2024, is vacated. - 3. Each party is to bear its own costs.

Dated at Kampala this 13<sup>th</sup> day of November, 2024.

FRANCIS GIMARA S. C **CHAIRPERSON**

**NELSON NERIMA MEMBER**

GEOFFREY NUWAGIRA KAKIRA **MEMBER**

PAUL KALUMBA **MEMBER**

**CHARITY KYARISIIMA MEMBER**

KETO KAYEMBA **MEMBER**

ENG. CYRUS TI **TUS AOMU MEMBER**

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