PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC ASSETS AUTHORITY
REPORT ON APPLICATION FOR ADMINISTRATIVE REVIEW BY OPULE MUHAMMED IN
RESPECT OF THE PROCUREMENT FOR REVENUE COLLECTION FROM KAMUGE
WEEKLY MARKET FOR FY 2016/17
ENTITY:
PALLISA DISTRICT LOCAL GOVERNMENT
APPLICANT:
OPULE MUHAMMED
DECEMBER, 2016
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1.0
BACKGROUND
1.1
On 10th April 2016, Pallisa District Local Government initiated a procurement for the
revenue collection from Kamuge Weekly Market. The bid notice was published in the
Daily Monitor Newspaper of 29th June 2016 with a closing date of 19th July 2016.
1.2
The Contracts Committee approved the following members of the Evaluation
Committee:
Table 1: Members of the Evaluation Committee
No. Member
Designation
1. Mr. Iddi Sale
Finance Officer
1.3
2.
Mr. Emmanuel Kiirya
Accountant
3.
Mr. Jaziru Pozi
Senior Assistant Secretary
4.
Ms. Daniel Okello
Ag Procurement Officer
5.
Mr. Apollo Opongoru
Senior Procurement Officer
Organization
Pallisa
District
Local Government
Pallisa
District
Local Government
Pallisa
District
Local Government
Pallisa
District
Local Government
Pallisa
District
Local Government
According to the record of issue of bids, two (2) providers were issued with the bidding
documents and both submitted bids. The bid prices read out at the bid opening held on
21st June 2016 are indicated in Table 2 below:
Table 2: Bidders who submitted bids
No
Name of Bidder
1.
Mr. Stephen Mbayo
2.
Mr. Muhammed Opule
Bid Price read out (UGX)
67,200,000
62,665,200
1.4
The Evaluation report dated 2nd August 2016 indicated that Mr. Mbayo Stephen was
eliminated at technical evaluation stage for not stating the number of women to be
employed and failure to understand the terms of reference and hence did not qualify for
the financial evaluation.
1.5
On 2nd August 2016, the Evaluation Committee recommended award of tender to Mr.
Muhammad Opule as the best evaluated bidder at a contract price of UGX 62,665,000
1.6
On 23rd August 2016, the Contracts Committee rejected the evaluation committee report
stating that it was biased and awarded Mr. Stephen Mbayo as best evaluated bidder.
1.7
The notice of best evaluated bidder was displayed from 29th September 2016 to 12th
October 2016. The reason for Mr. Muhammed Opule being unsuccessful was ranking
number 2 as per contracts committee decision.
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2.0
ADMINISTRATIVE REVIEW PROCESS
2.1
On 10th October 2016, Mr. Muhammad Opule applied to the Accounting Officer, Pallisa
District Local Government for Administrative Review.
2.2
On 12th October 2016, the Accounting Officer appointed a Committee to conduct the
Administrative Review investigation.
2.3
On 24th October 2016, the Committee submitted the Administrative Review report to the
Accounting Officer stating that there was no reason why Mr. Muhammed Opule was not
awarded the contract since he passed the technical and financial evaluation based on their
findings and re-evaluation assessment.
2.4
On 2nd November 2016, the Accounting Officer submitted the report to the contracts
committee for review and consideration and communicated to the Mr. Muhammad Opule
informing him of receipt of report from the committee appointed that he will get the final
decision after the Contracts Committee has taken a final decision
2.5
On 8th November 2016, Mr. Muhammed Opule communicated to the Accounting Officer
seeking clarification on the Administrative Review he applied for.
2.6
On 9th November 2016, the Head, Procurement and Disposal Unit the Contracts
Committee’s rejected to act on the report which he indicated was outside his mandate
citing the PPDA Act 2003, Section 90 (2) (b) and Regulation 139 (5) which mandates the
Accounting Officer to communicate and advise the complainant on the Administrative
Review.
2.7
On 9th November 2016, Mr. Muhammed Opule applied to the Authority for Administrative
Review.
3.0
LAW APPLICABLE
i.
ii.
4.0
The Public Procurement and Disposal of Public Assets Act, 2003.
The Local Governments (PPDA) Regulations, 2006.
METHODOLOGY
In investigating the application for Administrative Review, the Authority adopted the
following methodology:
4.1
Analysis was made of the following documents:
a)
b)
c)
d)
The invitation for bids to the various bidders
Bidding document issued to bidders
Bids submitted by the bidders
Record of issue and receipt of bids
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e)
f)
g)
h)
4.2
All Forms related to this procurement;
The evaluation report;
Contracts committee minutes for this procurement;
All correspondence and another documentation related to this matter
On 1st December 2016, PPDA convened an Administrative Review hearing which was
attended by the following people.
Table 3: Persons who attended the Administrative Review hearing
No.
Name
Designation
Pallisa DLG
1. Mr. Muhammad Galya
2. Mr. Apollo Opongoru
Complainant
1. Mr.Muhammed Opule
2. Mr. Solomon Naita
3. Mr. Idi Katalo
4. Mr.Badru Kiirya
5. Mr.Tonny Okwanye
6. Mr. Solomon Naita
Best Evaluated Bidder
7. Mr. Stephen Mbayo
8. Mr. Fesitine Amudala
9. Mr. Moses Bola
5.0
On behalf of the Accounting Officer
Senior Procurement Officer
Complainant
Chairman NRM Puti-Puti S/C
Resident Puti-Puti S/C
Lawyer, KOB Advocates
Lawyer, KOB Advocates
Resident,Puti-Puti S/C
Resident, Puti-Puti S/C
Resident, Puti-Puti S/C
Resident, Puti-Puti S/C
GROUNDS RAISED BY THE APPLICANT
Grounds raised at Entity and PPDA level
1. That most of the bid documents for FY 2016/17 were evaluated in the Month of
August 2016 and the results were released apart from that of Kamuge Market which
wasn’t evaluated and the results not released.
2. That the Head of PDU- Pallisa issued an evaluation report to Mr. Stephen Mbayo and
the information contained in the report indicated that Mr. Mohammad Opule’s bid was
the only responsive and best evaluated with a score of 93% against 63% of Mr. Stephen
Mbayo which is below the pass mark.
3. That on 8th October 2016 the Head PDU, Pallisa DLG displayed the evaluation report
for the Kamuge Market and purportedly indicated that it was displayed on 29th
September 2016 and Mr. Stephen Mbayo as the best evaluated.
4. That a committee was constituted to handle Mr. Mohammad Opule’s administrative
review application and recommendations where submitted to the Accounting Officer
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but wasn’t advised within the fifteen days. He received communication on 7th November
2016, from the Accounting Officer but no indication of whether there was merit in the
complainant or not. Instead it extended the time unlimited pending the contracts
committee decision which shall be final.
5. That the contracts committee already unlawfully awarded the contract minus
evaluation reports or recommendations.
6.0
PPDA FINDINGS ON THE GROUNDS RAISED BY THE APPLICANT
The Authority noted that ground five was not raised at PPDA level and therefore no
findings were made under it.
Ground One:
That most of the bid documents for FY 2016/17 evaluated in the Month of August 2016, the
results were released except that of Kamuge Market which wasn’t evaluated and the results
not released.
Findings:
i.
The Applicant stated that the evaluation results of the Kamuge Market were not
released in August 2016 yet most of the bids received were evaluated and published in
August 2016.
ii.
The Authority noted that the evaluation report for the bid was dated on 2nd August 2016
and submitted to the contracts committee for approval.
iii.
The Contract Committee took a decision on 23rd August and the notice of Best
Evaluated Bidder (BEB) was displayed from 29th September to 12th October 2016.
iv.
The Authority observed that the Procuring Disposal Unit took over a month from the
contract award to display the notice of the BEB which is contrary to the Regulations
86 (3) of the Local Governments (PPDA) Regulations, 2006 which requires display
within two working days of the contract award.
v.
The Authority finds that much as the evaluation was undertaken in August, the
Contracts Committee approval of the BEB was 23rd August 2016. The display notice
of the BEB couldn’t have been undertaken before the Contracts Committee approval.
Decision:
The Authority finds merit in ground one.
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Ground Two
That the Head of Procurement Disposal Unit - Pallisa issued an evaluation report to Mr.
Stephen Mbayo and the information contained in the report indicated that Mr. Mohammad
Opule’s bid was the only responsive and best evaluated with a score of 93% against 63% of
Mr. Stephen Mbayo which is below the pass mark.
Findings:
i.
The Applicant alleged that his bid was the only responsive and best evaluated with a score
of 93% and passed both the technical and financial stages.
ii.
The Authority found out that the evaluation report dated 2nd August 2016 was submitted to
the Contracts Committee for approval. However, the Contracts Committee rejected it and
recommended award to Mr. Stephen Mbayo at UGX. 67,200,000 on the ground that the
evaluation team was biased. The Contracts Committee noted that the need to realize more
revenue for the entity and hence award to the highest bidder.
iii.
At the hearing before the Authority, the Accounting Officer submitted that the Contracts
Committee approved Mr. Stephen Mbayo as the BEB on grounds that his bid had the gender
aspect and methodology contrary to the Evaluation Committee report.
iv.
The Accounting Officer further submitted that the Entity did not use selective bidding of
co-operatives since there are no registered cooperatives or associations in the district and
therefore the tender attracted individual bids.
v.
The Authority established that the bidding document under Section 3 (2) (2.1)) provided for
the quality and cost based selection evaluation methodology that takes into account both
quality and price of bids in the process under which technical bids are evaluated without
access to financial bids shall be used. The Entity was a wrong evaluation methodology
since this was a non-consultancy service when the technical compliance selection
methodology should have been used.
vi.
The Authority finds that the Entity used a wrong evaluation method for the procurement
and hence an irregular award was arrived at.
vii.
The Authority further found the decision of the Contracts Committee to award to a bidder
not recommended by the Evaluation Committee irregular. The Contracts Committee
should have rejected the Evaluation Report with reasons and refer the report to the
Evaluation Committee for re-evaluation.
Decision:
The Authority finds merit in ground two.
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Ground Three:
That on 8th October 2016 the Head Procurement and Disposal Unit, Pallisa DLG displayed
the evaluation report for the Kamuge Market and purportedly indicated that it was displayed
on 29th September 2016 and Mr. Stephen Mbayo as the best evaluated.
Findings:
i.
The Applicant alleged that Head Procurement and Disposal Unit displayed the notice of the
best evaluated bidder on 8th October 2016 not 29th September 2016. However, no evidence
was submitted to the Authority to substantiate the allegation indicated.
ii.
The Accounting Officer’s representative informed the Authority that the BEB had been
displayed on 29th September 2016.
iii.
The Authority noted that the notice of best evaluated bidder was displayed from 29th
September 2016 to 12th October 2016.
iv.
The Authority found out that in absence of evidence to support the allegations, it was
persuaded by the confirmation by the Entity that the BEB was displayed on 29th September
2016. The Authority further noted that the bidders’ right was not affected since he was able
to lodge his complaint with the Accounting Officer as required under the Local
Governments (PPDA) Regulations, 2006.
Decision:
The Authority finds no merit in ground three
Ground Four:
That a committee was constituted to handle Mr. Mohammad Opule’s administrative review
application and recommendations where submitted to the Accounting Officer but wasn’t
advised within the fifteen days. He received communication on 7th November 2016, from the
Accounting Officer but no indication of whether there was merit in the complaint or not.
Instead it extended the time pending the contracts committee decision.
Findings:
i.
The Authority established that the Accounting Officer on 12th October 2016 appointed a
committee to conduct the Administrative Review investigation as per Regulation 139 of
the Local Governments (Public Procurement and Disposal of Public Assets) Regulations,
2006. The Committee submitted the Administrative Review report to the Accounting
Officer on 24th October 2016.
ii.
The Accounting Officer submitted the report to the Contracts Committee for consideration.
However, the Contract Committee stated that it was outside its mandate to handle
Administrative Reviews.
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iii.
On 2nd November 2016, the Accounting Officer communicated to the Applicant informing
him of receipt of report from the committee appointed to handle his Administrative Review
that he would be informed of the final decision after the Contracts Committee.
iv.
Section 90 (3) of the PPDA Act provides for the bidder to submit in an application for
administrative review in case the Accounting Officer does not issue a decision within
fifteen working days or the bidder is not satisfied with the decision of Accounting Officer.
v.
The Authority found that the Accounting Officer didn’t submit a decision to the
complainant within the 15 days as required time by the law since the time elapsed on 31st
October 2016 contrary to Section 90 (2)(b) of the PPDA Act which provides for an
Accounting Officer to issue his or her decision in writing within fifteen working days after
receipt of the application
Decision:
The Authority finds merit in ground 4. However, the non-submission of the decision within 15
working days did not bar the complainant from submitting an appeal to the Authority which was
undertaken on 9th November, 2016.
7.0
OBSERVATION
The Authority observed that the Entity should encourage the market vendors to form market
vendor associations so that they are given priority to manage them. This is in accordance with the
Government Policy Decisions on the Development and Management of Markets in the City,
Municipalities and Towns (b) the sitting market who stalls (emidala).
8.0
DECISION OF THE AUTHORITY
In accordance with Section 91 (4) of the PPDA Act 2003 and in light of the findings and
observations of the Authority during the Administrative Review process, the Application for
Administrative Review by Mr. Muhammed Opule is upheld.
The Entity is advised to:
1. Re-tender the procurement and rectify any anomalies during the procurement process; and
2. Refund Administrative review fees paid by applicant in accordance with Guideline No.5
of 2008 of the LG (PPDA) Guidelines 2008.
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