THE PROCUREMENT APPEALS TRIBUNAL HAS AFFIRMED THAT THE NON-SUBMISSION OF AN ELIGIBILITY DOCUMENT IS NOT A FATAL FLAW, AS THE P.D.E IS OBLIGATED TO REQUEST ITS SUBMISSION THROUGH CLARIFICATION.

The Uganda Procurement Appeals Tribunal has affirmed that the non-submission of an eligibility document is not a fatal flaw, as the Procuring and Disposing Entity (PDE) is obligated to request its submission through clarification as per Regulation 17(6) of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations, 2023.

Furthermore, the evaluation committee must adhere strictly to the criteria outlined in the bidding document and cannot consider any additional evaluation factors as per Section 76(3) of the Public Procurement and Disposal of Public Assets Act, Cap 205.

Introduction.

Emtec Technical Services Ltd (the Applicant) filed an administrative review application to the Procurement Appeals Tribunal on 24th February 2025, seeking to challenge the decision of the Accounting Officer of The Uganda High Commission, Dar es Salaam, Tanzania (the Respondent) for reaffirming the reasons given by the Respondent’s Evaluation Committee for the disqualification of its bid. The Respondent filed its responses through The Attorney General’s Chambers on 3rd March 2025.

Representation.

Mr. Felix Ampaire of M/S F. Ampaire Advocates & Solicitors, Counsel for the Applicant.
Mr. Masaba Peter, an Assistant Commissioner in the Attorney General’s Chambers assisted by Mr. Samuel Kananda, State Attorney with the Attorney General’s office - Counsel for the Respondent.

Background:

The Uganda High Commission in Dar es Salaam, Tanzania initiated a procurement for the construction of the Chancery Building Associated External Works and Building Services for Uganda High Commission in Dodoma, Tanzania. It invited firms to submit bids, and the Applicant together with other ten (10) firms submitted a bid.

Upon conclusion of the evaluation, the Respondent issued a Notice of Best Evaluated Bidder which indicated that the Applicant’s bid was eliminated at the preliminary stage for failure to submit evidence of registration with the Uganda National Association of Builders, Suppliers and Engineering Contractors (UNABSEC), which is the equivalent to the Contractors Registration Board (CRB).

The Applicant being dissatisfied with the decision of the Respondent filed an administrative review complaint to the Respondent’s Accounting Officer challenging the outcome of the procurement. The Accounting Officer dismissed the complaint, affirming the decision of the Entity. The Applicant filed this Application to the Procurement Appeals Tribunal seeking to challenge that decision.

Issues Raised.

Whether the Respondent erred in law and fact when it disqualified the Applicant’s bid?
Remedies available.

Determination by the Tribunal.

Issue One: Whether the Respondent erred in law and fact when it disqualified the Applicant’s bid?

The Tribunal noted that the sub-item 3.2 (a.iii) of section 3 of the Bidding Document required bidders to provide the following as evidence of eligibility;

a) A registration certificate from the Contractor’s Registration Board as a Building Contractor Class 1 and Civil Works Contractor Class II; or

b) A registration certificate which was equivalent to a registration certificate from the Contractors’ Registration Board as the Building Contractor Class 1 and Civil Works Contractor Class II; or

c) For foreign Contractors, a letter of their willingness to register with the Contractor’s Registration Board of Tanzania before the award.

The Tribunal found that the Applicant submitted a copy of the Certificate of Registration issued by the Public Procurement and Disposal of Public Assets Authority (PPDA) Register of Providers Secretariat that confirmed that the Applicant was registered on the PPDA Register of Providers under the Category of Works, with sub categories of Civil Engineering, Construction of Buildings and Carpentry, Construction of roads and bridges, Electrical, Plumbing and other installation activities, Mechanical works.

The Applicant did not submit an equivalent of a registration Certificate from the Contractors’ Registration Board as a Building Contractor Class I and Civil Works Contractor Class II.

The Tribunal found that registration with PPDA as a provider was generic and had nothing to do with the Registration and classifications as a building contractor within the meaning of the Tanzania Contractors Registration Act 1997.

It further noted that the Applicant submitted a letter dated 22nd January 2025 which indicated that the Applicant was willing to register with the Contractors' Registration Board of Tanzania before the award of Contract. The Applicant being a foreign Contractor in Tanzania, the evaluation criteria permitted them to merely submit a letter of willingness to register with the Contractors’ Registration Board of Tanzania.

The Tribunal found that the requirement was futuristic in nature and therefore the Respondent erred when it disqualified the Applicant on that ground.

The Tribunal also found that the document was an eligibility document which the Respondent was obligated under the law to request for.

Issue Two: Remedies available.

The Tribunal having determined that the Applicant’s bid was wrongly disqualified at the preliminary stage, it remitted the procurement back to the Respondent for re-evaluation.

Rule:

Non Submission of an eligibility document is not fatal because the Procuring and Disposing Entity is obligated to request a bidder to submit the said document through clarification as per Regulation 17 (6) of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations 2023.

No other evaluation criteria other than that stated in the bidding document can be considered by the evaluation committee during the evaluation of bids as per Sec 76(3) of the Public Procurement and DIsposal of Public Assets Act Cap 205.

Conclusion

The Tribunal found that the Respondent erred and acted in breach of the law when it disqualified the Applicant’s bid for alleged non-submission of an eligibility document.

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