PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC ASSETS AUTHORITY
REPORT ON APPLICATION FOR ADMINISTRATIVE REVIEW BY HOME TAKE
INVESTMENTS (U) LTD IN RESPECT TO THE PROCUREMENT FOR REVENUE
COLLECTION FROM LOADING/OFFLOADING AND STREET PARKING NO.
MBAL760/SRVCS/16-17/00003
ENTITY: MBALE MUNICIPAL COUNCIL
APPLICANT: HOME TAKE INVESTMENT (U) LTD
SEPTEMBER 2016
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1.0
BACKGROUND
1.1
On 10th May 2016, Mbale Municipal Council initiated a procurement for the revenue
collection from loading, offloading and street parking for a period of 11 months. The bid
notice was published in the New Vision Newspaper of 19th May 2016 and the closing
date was 13th June 2016.
1.2
On 13 June 2016, the Contracts Committee approved the following members of the
Evaluation Committee:
Table 1: Members of the Evaluation Committee
No. Member
Designation
Organization
1. Mr. Amos Kongo Mayoka Cashier, Wanale Division
Mbale MC
2. Mr .Ali Wodero
Procurement Officer
Mbale MC
3. Mr. John Moses Wotsomu Senior Economic Planner
Mbale MC
4. Mr. Julius Wafela
Senior Accounts Assistant
Mbale MC
1.3
According to the record of issue of bids, seven firms were issued with the bidding
documents and all the seven firms submitted bids. The bid prices were read out at the bid
opening held on 13th June 2016 as indicated in Table 2 below:
Table 2: Bidders who submitted bids
No
Name of Bidder
1.
Home Take Investments (U)Ltd
2.
3.
4.
5.
6.
7.
Equator Touring Services Ltd
Muroma Building and Supplies Ltd
Faith Agro Inputs Ltd
Kamuge Contractors
Bamgoma Investments Ltd
Mayanja General Services Co.
Bid Price read out (UGX)
21,145,000
19,845,000
29,500,000
20,311,600
25,100,000
19,800,000
19,020,000
1.4
The Evaluation report dated 12th July 2016 indicated that 2 firms were eliminated at
preliminary evaluation stage, Mayanja General Services Company Limited was
eliminated due to submitting an incomplete price schedule and an expired income tax
clearance, Faith Agro Inputs Ltd did not submit a bid security and a current Income Tax
Clearance. The remaining five proceeded to the next stage.
1.5
Four firms were eliminated in the detailed technical evaluation stage as follows;
 Kamuge Contractors submitted experience which did not relate to the experience
required in the criteria and there was no evidence of authority to seek reference from
their bankers.
 Bangoma Investments attached a letter of appointment dated 30th March 2016 for
their manager and the assumption of duty was dated 1st July 2014 which implies that
the manager assumed duty before the appointment and the firm also forged
experience in collection of revenue from Sironko DLG.
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

1.6
Home Take Investments U Ltd submitted agency letters from Industrial and Northern
Divisions as evidence of relevant work experience to which the committee through
the Town Clerk sought guidance from the Solictor General who advised that it was
illegal.
Muroma Building and Suppiers submitted a manager who lacked experience in
services of the similar nature and his CV did not show any responsibility as a
manager. They also forged experience in collection of revenue from Sironko DLG.
On 12th July 2016, the Evaluation Committee recommended award of tender to Equator
Touring Services Limited as the best evaluated bidder at a contract price of UGX
19,845,000 per month. This was approved by the Contracts Committee on 15th July 2016.
The notice of best evaluated bidder was displayed from 20th July to 2nd August 2016.
2.0
ADMINISTRATIVE REVIEW PROCESS
2.1
On 1st August 2016, Home Take Investments Uganda Limited applied to the Accounting
Officer, Mbale Municipal Council for Administrative Review.
2.2
On 2nd August 2016, the Accounting Officer 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.
2.3
On 8th August 2016, the Committee submitted the Administrative Review Report to the
Accounting Officer in which they found no merit in the complaint lodged by Home Take
Investments (U) Ltd.
2.4
On 12th August 2016, the Accounting Officer wrote to the Home Take Investments (U) Ltd
informing the complainant of the committee’s decision rejecting the application for
Administrative Review.
2.5
On 15th August 2016, Home Take Investments (U) Limited applied for Administrative
Review to the Authority.
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:
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4.1
Analysis was made of the following documents:
a)
b)
c)
d)
e)
f)
g)
h)
i)
4.2
The invitation for bids to the various bidders
Bids submitted by the bidders
Copy of detailed bidding document issued to bidders
Record of issue and receipt of bids
All Public Procurement Forms related to this procurement;
The evaluation report;
Contracts committee minutes for this procurement;
The administrative review report by the Accounting officer Mbale MC
All correspondence and other documentation related to this matter
On 30th August 2016, PPDA convened an Administrative Review hearing which was
attended by the following officials:
Table 3: Persons who attended the Administrative Review hearing
No. Name
Designation
5.0
Mbale Municipal Council
1. Mr. Martin Busiku
2. Mr. Fredrick Stuma
Town Clerk
Head Procurement Disposal Unit
Home Take Investments (U) Ltd
1. Mr. Murami Bulukhan
2. Mr. Bernard Mabonga
Director
Advocate
Equator Touring Services Ltd
1. Mr. Kizito Mulwana
Project Manager
GROUNDS RAISED BY THE APPLICANT
Grounds raised at Entity level
1. That Home Take Investments Limited should not have been disqualified on the grounds
that it lacked experience in the collection of revenue from street parking and loading/off
loading or works of similar nature, and yet they are the ones currently collecting dues from
loading and offloading as well as street parking in Mbale Municipality.
2. That Home Take Investments Limited quoted higher than the best evaluated bidder but was
not considered, a decision that will lead to a reduction in council revenue. The best
evaluated bidder Equator Touring Services Ltd quoted UGX 19,845,000 per month an
amount that was lower than Home Take Investments Ltd UGX 20,500,000.
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Grounds raised at PPDA level
1. That the complainant was never given an opportunity to be heard prior to the final decision
of the Administrative Review Committee which is clearly a breach of the principle of
natural justice as guaranteed under Articles 28,42 and 44 of the Constitution of Uganda.
2. That the Town Clerk’s act of delegating his responsibility of carrying out an Administrative
Review to a committee is contrary to the provisions of Section 90 and Regulation 7 of the
PPDA Act and Regulations.
3. That Section 180(2) of the PPDA Act 2003 cited by the Town Clerk in seeking for advice
from the Solicitor General is nonexistent therefore the Town Clerk had no legal basis to
seek the said advice thus rendering the Solicitor General’s opinion a nullity.
4. That in addition to the above, Section 7(1) (a) and (c) of the PPDA Act vests the advisory
role in the Authority and not any other person. It is the Authority to advise on all public
procurement and disposal policies, principals, practices, education and training,
competence levels and certification requirements.
5. That the Town Clerk’s letters to the Solicitor General office that formed the basis for the
administrative review decision interfered with the independence and functions of the
evaluation committee, procurement and disposal unit, contracts committee and the
Authority a provided in sections 28,31,37 and 38 of the PPDA Act 2003.
6. That the complainant has the required experience since it has been collecting revenue on
behalf of Industrial, Northern Divisions and Mbale Municipal Council for the last three
years to date thus the Municipal Council cannot allege that the complainant lacks
experience.
7. That the monthly bid amount of UGX 19,500,000 which was offered by Equator Safaris
which was declared the best evaluated bidder was lower than UGX 20,500,000 offered by
our client.
6.0
PPDA FINDINGS ON THE GROUNDS RAISED BY THE APPLICANT
The Authority noted that grounds 1 and 2 are legal issues that arose out of the Administrative
Review decision at Accounting Officer level and ground 3 and 4 were part of the ground on
experience.
Ground One:
That the complainant was never given an opportunity to be heard prior to the final decision of the
Administrative Review Committee which is clearly a breach of the principle of natural justice as
guaranteed under Articles 28,42 and 44 of the Constitution of Uganda.
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Findings:
i.
Home Take Investments (U) Ltd alleged that the provider was never given an opportunity
to be heard by the Administrative Review Committee, a breach of the principle of natural
justice contrary to Articles 28, 42 and 44 of the constitution of Uganda.
ii.
At the hearing before the Authority, the Entity submitted that they had all information thus
did not need a physical appearance of the complainant before it.
iii.
The Authority noted that the complainant applied for Administrative Review and stated the
two grounds in writing which was used by the Administrative Review Committee in
addition to the bid submitted to investigate the complaint.
iv.
The Authority finds that the right to be heard does not require physical presence by the
complainant and that the Administrative Review Committee considered the written
application of the complainant before arriving to the findings.
v.
The Authority finds that the Entity accorded the complainant a right to be heard and there
was no breach of the principle of natural justice.
Decision of the Authority on the ground:
The Authority finds no merit in this ground.
Ground Two:
That the Town Clerk’s act of delegating his responsibility of carrying out an Administrative Review
to a committee is contrary to the provisions of Section 90 and Regulation 7 of the PPDA Act and
Regulations.
Findings
i.
The Accounting Officer appointed an Administrative Review Committee to
handle/investigate the Administrative Review by Home Take Investments (U) Ltd. This
Committee prepared a report of findings which formed the basis of the decision to reject
the Administrative Review.
ii.
Regulation 139 (2) of the Local Government (PPDA) Regulations 2006 provides that; ‘the
Accounting Officer shall immediately on receipt, constitute a committee of three persons
with the requisite technical expertise on the subject of the complaint, to review and advise
on the complaints.’
iii.
The complainant cited Section 90 of the PPDA Act which provides for review by the
Accounting Officer generally. The Regulation 7 of the PPDA Regulations 2014 is not
applicable to Local Governments.
iv.
The Authority finds that the Accounting Officer constituted a committee to handle the
application in accordance with the Local Government (PPDA) Regulations.
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Decision of the Authority on the ground
The Authority does not find merit in this ground.
Ground Three
That Section 180(2) of the PPDA Act 2003 cited by the Town Clerk in seeking for advice from the
Solicitor General is nonexistent therefore the Town Clerk had no legal basis to seek the said advice
thus rendering the Solicitor General’s opinion a nullity.
Findings
Under Section 3, clause 5.1(c) of the Bidding Document required bidders to submit copies of
contract agreements, Local purchase orders, including some copies of payment
acknowledgments as evidence for possession of experience in collection of revenue from street
parking and loading/offloading or similar nature on behalf of the city council/district council/
Municipal Council/Town Council/Division Council for a period of one year
i.
ii.
The complainant submitted letters from Northern and Industrial Divisions, for award of agency
to collect loading, offloading and street parking fees in Northern and Industrial Divisions dated
10/12/2013, 20/12/2013, 31/03/2015, and 29/06/2015 as well as receipts acknowledging
remittances of Revenues to the Municipal Council as evidence of possession of experience in
collection of revenue.
iii.
On 1st July 2016, the Entity sought advice from Solicitor General in respect to the
complainant’s submission of award letters of agency from the Industrial and Northern
Divisions.
iv.
On 12th July 2016, the Solicitor General guided that the law did not give Division Councils
contractual capacity and therefore the offer letters could not be taken as valid experience.
v.
The Authority established that the complainant was collecting revenue from which fact was
acknowledged by the Accounting Officer. The Entity had also received revenue from the
provider before the current procurement.
vi.
The Authority finds that the guidance by the Solicitor General was on the legality of the
contract and not the experience of the provider which was the requirement of the bidding
document.
vii.
The Authority finds that the applicant had the required experience based on the submission in
the bid and the Accounting Officer’s confirmation of the same at the hearing.
Decision of the Authority on the ground
The Authority finds merit in this ground.
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Ground Four
That in addition to ground three, Section 7(1) (a) and (c) of the PPDA Act vests the advisory role
in the Authority and not any other person. It is the Authority to advise on all public procurement
and disposal policies, principals, practices, education and training, competence levels and
certification requirements.
Findings
The Authority found that this ground is similar to ground 3 above.
Ground Five
That the Town Clerk’s letters to the Solicitor General office that formed the basis for the
administrative review decision interfered with the independence and functions of the evaluation
committee, procurement and disposal unit, contracts committee and the Authority as provided in
sections 28,31,37 and 38 of the PPDA Act 2003.
Findings
i. Article 119 of the Constitution of Uganda grants the Solicitor General the mandate to
provide legal guidance to Government.
ii.
The Authority finds that the guidance by the Solicitor General was not in reference with
the independence of the procurement structures of the Entity.
iii.
The Authority finds that this was not a ground at Accounting Officer level but is related to
ground 3 above.
Decision of the Authority on the ground
The Authority finds no merit in this ground.
Ground Six
That the complainant has the required experience since it has been collecting revenue on behalf
of Industrial, Northern Divisions and Mbale Municipal Council for the last three years to date
thus the Municipal Council cannot allege that the complainant lacks experience.
Findings
The findings of the Authority are as in ground 3 above.
Decision of the Authority on the ground
The Authority finds merit in this ground.
Ground Seven
That the monthly bid amount of UGX 19,500,000 which was offered by Equator Touring Services
which was declared the best evaluated bidder was lower than UGX 20,500,000 offered by our
client.
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Findings
i.
Home Take Investments (U) Ltd quoted a bid price of UGX 20,500,000 while Equator
Touring Services quoted a bid price of UGX 19,500,000.
ii.
Home Take Investments (U) Ltd failed at detailed technical evaluation stage and therefore
did not proceed to financial evaluation.
iii.
The Authority noted that whereas the complainant quoted a higher bid price than the best
evaluated bidder, Home Take Investments (U) Ltd had already been failed at the detailed
technical evaluation stage and was not evaluated at financial evaluation.
iv.
The Authority finds that the Entity did not evaluate the complainant’s experience properly.
Decision
The Authority finds merit in this ground.
7.0
DECISION OF THE AUTHORITY
In light of the above findings and in accordance with section 91(4) of the PPDA Act, 2003, the
application for Administrative Review by Home Take Investments is upheld due to the findings
in grounds 3, 6 and 7. The merit found in ground six and seven materially affects the outcome of
the procurement process.
The Entity is advised to:
i.
Re-evaluate all bids and correct all anomalies during the evaluation period.
ii.
Refund Administrative Review fees paid by the complainant in accordance with Guideline
No.5 of 2008 of the Local Government (PPDA) Guidelines, 2008.
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