THE PROCUREMENT APPEALS TRIBUNAL REAFFIRMED THAT THE EXPIRY OF A BID VALIDITY PERIOD CONCLUDES A PROCUREMENT PROCESS—THE BID IS DEEMED INVALID IN THE ABSENCE OF ANY EXTENSION.

Legal Brief on Procurement Appeals Tribunal Application No. 6 of 2025, Lankaran Yol Tinkinti OJSC in Joint Venture with UCA Insaat v Ministry of Works and Transport [Legal successor to Uganda National Roads Authority]

Area of law: Procurement Law.

Introduction.

The Uganda Procurement Appeals Tribunal, in a decision rendered on March 21, 2025, reaffirmed that courts of law and the Tribunal are duty-bound to jealously guard the sovereignty of the Republic of Uganda.

The tribunal further held that the mere fact that a procurement is funded by a loan and subject to the lender’s procurement guidelines does not oust the jurisdiction of the Tribunal and Courts of law in Uganda, unless there is a clear provision to that effect.

The procurement tribunal also asserted that the three-tier system of resolving procurement-related complaints as provided for in the Act is part of the scheme established by Uganda in furtherance and safeguarding of the fundamental principles of procurement, which are laid down in Sections 46-49 of the PPDA Act Cap 205.

The objectives of the entire Act cannot be fulfilled if certain provisions are too easily made inapplicable unless there is a clear discretion to that effect.

Representatives.

Mr. Charles Nsubuga of M/S Muwema & Co. Advocates, Counsel for the Applicant.
Mr. Kasirye Robert, Policy and Legal Analyst of the Respondent, represented the Respondent.

Background.

The Government of Uganda, represented by the Uganda National Roads Authority (UNRA), received funding from the Islamic Development Bank (IsDB) towards the upgrading of national roads in Uganda.

UNRA initiated a tender for the upgrading of Kyenjojo (Kihura) Bwizi- Rwamwanja - Kahunge (68 km) and Mpara- Bwizi Road (38 km); including the construction of 20 km of town roads to Bituminous standards. It invited bids and received the same from nine (9) firms, including a bid from the Applicant.

Upon conclusion of the evaluation process, UNRA issued a Notification to award to all bidders indicating Arab Contractors (Osman Ahmed and Co) as the best Evaluated Bidder.

Lankaran Yol Tinkinti OJSC, in Joint Venture with UCA Insaat (the Applicant), filed a procurement-related complaint with the Accounting Officer of UNRA alleging that the price in the Notification of Intention to award was not part of the bid of Arab Contractors (Osman Ahmed and Co).

On 7th August 2024, the Accounting Officer of UNRA dismissed the complaint for lack of merit. On 18th December 2024, UNRA entered into a contract with Arab Contractors (Osman Ahmed and Co).

On 5th December 2024, the Applicant filed another procurement-related complaint with the Accounting Officer of UNRA claiming corrupt practices, fraudulent practices and obstructive practices in the preparation and evaluation of the bid of Arab Contractors (Osman Ahmed and Co). The Accounting Officer dismissed the complaint on 20th February 2025 for being filed out of time.

On 28th February 2025, the Applicant filed this Application to the Tribunal seeking to review the decision of the Accounting Officer.

Issues Raised.

Whether the Tribunal had jurisdiction to determine the Application?
Whether the Application was competent before the Tribunal ?
Whether the Accounting Officer of the Respondent erred in law and fact when it subjected the Applicant’s complaint to PPDA (Administrative Review) Regulations 2023 instead of Annex C of the Guidelines for the Procurement of Goods, Works and related services under IsDB Project Financing?
Whether the Accounting Officer erred in law and fact when he dismissed the Applicant’s complaint?
Whether the Respondent did err in the evaluation of the bid of the Arab Contractors (Osman Ahmed Osman)?
Remedies available.

NOTE:

The Uganda National Roads Authority Act Cap 214 was repealed to enable the mainstreaming of functions of the Uganda National Roads Authority into the ministry responsible for roads. Consequently, UNRA was dissolved. Effective December 2024, all assets, rights and obligations of UNRA were vested in the Government of Uganda under the Ministry responsible for roads.

Determination by the Tribunal.

Issue One: Whether the Tribunal has jurisdiction to determine the Application?

The Tribunal noted that it is a creature of the Public Procurement and Disposal of Public Assets Act [PPDA] Cap 205. It highlighted Section 3 (1) of the PPDA Act Cap 205 which provides that where the Act conflicts with an obligation of the Republic of Uganda arising out of an agreement with one or more States, or with an international organisation, the provisions of the agreement shall prevail over the Act.

It observed that the procurement in issue was funded under financing agreements between the Government of Uganda and the Islamic Development Bank (IsDB). The Tribunal studied the Guidelines for the Procurement of Goods, Works and Related Services under IsBD project Financing 2018 and observed the following;

Paragraph 1.7 of the Guidelines provided that the ultimate responsibility for achieving maximum value for money for the Goods, Works and/or related services procured and the successful completion of projects rested with the beneficiary.
Paragraph 4 of the Guidelines provided for the roles of the beneficiary under 4.1 and 4.2 which included but were not limited to resolving complaints promptly and fairly.

It further noted that the beneficiary was defined in the Bid Data Sheet to mean the Government of the Republic of Uganda. ITB 48 of the Bidding Document of Section II - Bid Data Sheet provided for the procedure for making a procurement-related complaint and details under the Procurement Guidelines (Annex C).

The Tribunal found that under the Guidelines for Procurement of Goods, Works and Related Services under IsBD Project Financing 2018 and the bidding document, the Government of Uganda, as the beneficiary, was responsible for the procurement and resolution of the procurement-related complaints.

It also found that the legal and institutional framework for resolving procurement-related complaints is found in the PPDA Act Cap 205. It is a 3-tier process for resolution.

The first step is a complaint to the Accounting Officer of the procuring and disposing entity, the second step is an application to the Tribunal for review of the Accounting Officer’s decision and the third step is a final appeal to the High Court on a point of law.

The Applicant made a complaint to the permanent secretary of the Respondent on 5th February 2025 and he rendered a decision on 20th February 2025. The Tribunal found that the complaint to the Permanent Secretary of the Respondent was an administrative review application for purposes of the PPDA Act Cap 205 and the decision made was reviewable by the Tribunal under Sections 106 (8) and 115 (1) of the Act.

It further found that the jurisdiction of the Tribunal to review the Accounting Officer’s decision did not conflict with any obligation of the Republic of Uganda arising out of the agreements between the Republic of Uganda and the Islamic Development Bank.

To the contrary, the resolution of the complaints was left to the Government of Uganda. The handling of the Application by the Tribunal was a fulfillment of the obligations of the Republic of Uganda to handle the complaints as stipulated in the Guidelines of Goods, works and Related Services under IsBD Project Financing.

The issue was resolved in the affirmative.

Issue Two: Whether the Application is competent before the Tribunal?

The Respondent dismissed the Applicant’s second complaint filed on 5th February 2025 for being filed out of time.

The Tribunal studied the Guidelines for Procurement of Goods, Works and Related Services under IsBD Project Financing 2018 and noted that they required a standstill period of ten (10) Business Days after the transmission of the Notification of Intention to Award the contract. It did not envisage the filling of a complaint to the beneficiary after expiry of the standstill period.

The Notification of Intention to Award was sent to all bidders on 5th July 2024 and the Applicant duly filed a complaint with the Accounting Officer of UNRA. A decision by UNRA was issued on 7th August 2024.

The Tribunal found that a second procurement related complaint filed by the Applicant in February 2025 was an abuse of the process. It noted that litigation and administrative review cannot be conducted in installments. All grievances must be presented within the stipulated time.

It observed that ITB 18.1 of the Bidding Document stated that the bid validity shall be for a period of 150 days from the submission deadline. The Applicant, upon request, extended the validity of its bid to 28th February 2025.

The Tribunal found that there was no record that the Applicant extended its bid validity beyond 28th February 2025 and to that extent it ceased to be a bidder in the impugned procurement.

It further found that the Applicant had no locus standi before the Tribunal since it had ceased to be a bidder and the Application was incompetent.

This issue was resolved in the negative.

Rule of Law:

The Tribunal must consider whether its handling of the Application conflicts with an obligation of the Republic of Uganda under the Financing Agreements.
The expiry of a bid validity period prior to the date stipulated in the bidding document or before the conclusion of the procurement process leads to a conclusion that the bid submitted is no longer valid and thus non-existent. A bidder whose bid validity has expired is not a bidder in actual sense and has no locus standi to apply for administrative review.

Conclusion.

The Tribunal found that the Application was time-barred, incompetent, and incurably defective and struck it out.

Written by: Mutesi Rebecca

Lawpoint Uganda.