PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC ASSETS
AUTHORITY
REPORT ON ADMINISTRATIVE REVIEW APPLICATION IN
RESPECT TO THE PROCUREMENT OF A CONTRACTOR TO
CONSTRUCT THE NATIONAL DRUG AUTHORITY TOWER
ENTITY
:
NATIONAL DRUG AUTHORITY
APPLICANT
:
ROKO CONSTRUCTION LIMITED
MARCH 2017
Table of Contents
Acronyms ........................................................................................................................................ 2
1.0
BACKGROUND ................................................................................................................. 3
2.0
LEGAL PROVISIONS APPLICABLE ............................................................................... 4
3.0
METHODOLOGY .............................................................................................................. 4
4.0
THE ADMINISTRATIVE REVIEW PROCESS AT ENTITY LEVEL ............................ 5
5.0
APPLICATION FOR ADMINISTRATIVE REVIEW AT PPDA LEVEL ........................ 7
6.0
DECISION OF THE AUTHORITY ................................................................................. 10
Page 1 of 11
Acronyms
AAR
BEB
BOQ
M
NDA
NOBEB
PDU
PPDA
UGX
USD
-
Application for Administrative Review
Best Evaluated Bidder
Bills of Quantities
Million
National Drug Authority
Notice of Best Evaluated Bidder
Procurement and Disposal Unit
Public Procurement and Disposal of Public Assets Authority
Uganda Shillings
United States Dollars
Page 2 of 11
1.0
BACKGROUND
1)
On 13th September 2016, National Drug Authority (NDA) initiated a procurement for
Construction of the NDA Tower Phase 1 – Block A and the basement for Phase 2- Block B)
Reference No: NDA/WORKS/16-17/00005.
2)
On 7th October 2016, the Contracts Committee approved the open international bidding
procurement method, the bidding document and bid notice.
3)
On 13th October 2016, the procurement was advertised in the New Vision Newspaper with
deadline for bid closing of 28th November 2016.
4)
Twenty three (23) firms purchased and were issued the bidding document.
5)
On 3rd November 2016, a pre-bid meeting was held which was attended by representatives
of the twenty three (23) firms that had purchased the bidding document.
6)
On 28th November 2016, bid submission was closed and the record of bids received
according to Form 11 was seven bids. The record of bid opening indicated the following
information:
Table 1: Prices read out at bid opening
No
1.
2.
3.
Bidders
5.
CRJE (East Africa) Limited
Seyani Brothers and Company Uganda Limited
China National Aero Technology international
Engineering Corporation
China National Complete Plant Import & Export
Corporation Limited (Complant)
Yanjian Group Company Limited
6.
7.
Roko Construction Limited
Cementers Uganda Limited
4.
Bid Price
USD 7,787,718.31
USD 8,138,295.69
USD 8,525,667.26
USD 7,593,031.48
USD 8,496,412.91
USD 7,707,223.44
USD 9,209,700.45
7)
The evaluation report signed on 17th January 2017 indicated that three firms, China
National Complete Plant Import and Export Limited (COMPLANT), Yanjian Group
Company Limited and Cementers Uganda limited, did not pass the preliminary and
technical stage and did not qualify for further evaluation.
8)
Four firms, CRJE (East Africa) Limited, Seyani Brothers & Co. (U) Limited, China
National Aero Technology International Engineering Corporation and Roko Construction
Limited passed the preliminary and technical examination and therefore qualified for
financial evaluation.
9)
During the financial comparison, arithmetic checks were carried out on all Bills of
quantities (BoQs) for all bidders and the corrected total bid prices were subjected to a
3
margin of preference in accordance with Section 59A of the PPDA Act. It was noted that
only Seyani Brothers & Co Limited qualified for a margin of preference and Roko
Construction Limited did not qualify though they had indicated that they were eligible.
10)
The Committee therefore recommended award to Seyani Brothers and Company Uganda
Limited at UGX USD 8,163,202.76. (United States Dollars Eight Million One Hundred Sixty
Three Thousand Two hundred Two and Seventy Six Cents) inclusive all taxes.
11)
The Notice of Best Evaluated Bidder was displayed from 23rd January 2017 to 6th February
2017.
12)
On 27th January 2017, Roko Construction Limited applied for Administrative Review which
was rejected by NDA on 6th February 2017.
13)
On 15th February 2017, Roko Construction Limited applied for Administrative Review
before the Authority.
2.0
LEGAL PROVISIONS APPLICABLE
i)
ii)
iii)
iv)
3.0
The Public Procurement and Disposal of Public Assets Act, 2003.
The Public Procurement and Disposal of Public Assets Regulations, 2014.
The PPDA (Administrative Review) Regulations, 2014.
The Bidding Document issued.
METHODOLOGY
In investigating the application for Administrative Review, the Authority adopted the following
methodology:
3.1
Review of the following documents:
i)
Bid notice;
ii) Bidding document issued to bidders;
iii) Pre-bid minutes;
iv) Bids submitted by bidders;
v) Record of receipt of bids;
vi) Record of bid opening;
vii) Evaluation report;
viii) Application for Administrative Review to the Accounting Officer, NDA by Roko
Construction Limited
ix) Administrative Review decision by the Accounting Officer, NDA; and
x) Application for Administrative Review to the Authority by Roko Construction
Limited
4
3.2
Administrative Review Hearing
An Administrative Review hearing was held on 3rd March 2017. The hearing was attended by the
following persons:
Table 2: Attendance at the Administrative Review hearing
No Attendee
NDA - Entity
1.
Moses Kirungi
2.
Miriam Lawino
Title
Head Procurement & Disposal Unit
Ministry of Education & Sports – Member of the
Evaluation Committee.
3.
Eng. Happy Moses Were
KCCA – Member of the Evaluation Committee
4.
Cyprian Mwesigwa
Contracts Committee Chairperson
5.
Kiguli Peter Kitooke
Evaluation Committee Chairman
6.
Paddy Lutalo
Ag. ED/SA
7.
Mark Kamanzi
Head Legal
Roko Construction Limited - Applicant
1.
Derek Cippssen
Director, Roko Construction
2.
Mark Koehler
Managing Director, Roko
3.
Nyakato Diana
Roko
4.
Munguci Brenda
Quantity Surveyor
5.
George Akule
Quantity Surveyor
Seyani Brothers and Company Uganda Limited - BEB
1.
Manish Siyani
Managing Director
2.
Sarfaraz Jiwani
General Manager
4.0
THE ADMINISTRATIVE REVIEW PROCESS AT ENTITY LEVEL
4.1
Application for Administrative Review to the Accounting Officer
On 27th January 2017, Roko Construction Limited, applied to the Accounting Officer of NDA for
Administrative Review and the grounds were as follows: (Annex 1)
a)
The projects (Course View towers and URA Head Quarter Towers) submitted by Seyani
Brothers & Company (U) Limited as experience did not meet the requirements stated in
the NDA bidding document. The evaluation criteria under Section 3- Evaluation
Methodology and Criteria item 6.2.7 stated in part: “Specific Experience”
(i)
Participation as a contractor, management contractor, or subcontractor, in at least
03 (three) contracts within the last 05 (five) years with a minimum of 9 floors, with
a minimum value of USD 9,000,000 or UGX 30 billion that have been successfully
completed and are like the proposed works. The similarity shall be based on the
5
physical size, complexity, methods/technology or other characteristics as described
in Section VI Employer’s Requirements (page 39 of 111)
b)
Seyani Brothers (U) Limited did not meet the requirements of benefiting from the margin
of preference in accordance with Section 59A (1a and 3b) of the PPDA Act, 2003 and ITB
34.1 and 34.3 of the NDA bidding document. From the bidding document under Section
D, Financial Comparison criteria, clause 8.3 (a) was used to give a margin of preference to
Seyani Brothers (U) Limited. There was no proof of Ugandan Citizenship furnished to
NDA by Seyani Brothers and Company.
4.2
Response by the Accounting Officer to the Application for Administrative Review
On 6th February 2017, the Accounting Officer of NDA dismissed the application for
Administrative Review by Roko Construction Limited for the following reasons: (Annex 2)
i.
Whereas Seyani Brothers & Company (U) Limited executed the projects referred to by
Roko Construction Company Limited as inadequate experience, Seyani Brothers &
Company (U) Limited did not submit Course View Towers to support their specific or
general experience. The bidder submitted URA Headquarters Towers among current
and ongoing projects but not for specific experience. NDA never based its decision to
award Seyani Brothers & Company (U) Limited on the said two projects.
The projects considered at evaluation were; Construction of Office premises for the
Office of the Auditor General at Plot 2 C, Apollo Kaggwa Road Kampala of 13 floors
at UGX 60,323,502,985, Commercial Development on Plot No. 24-26, Martin Road,
Old Kampala of 9 floors at USD 10,668,090.00 and Constructing Foundations and a
Reinenforced Concrete Frame for an Office Block known as Block A including a
basement car parking & retail outlet levels at Nile Avenue, Kampala (a phased project
of 15 floors, phase 1 comprising of mass excavation , Phase 2 Construction of 15 levels
of reinforced concrete structures with epoxy floor and fare finished concrete at USD
9,162,090.00
ii.
On the ground of the margin of preference, the NDA bidding document indicated in
the Instruction To Bidders (ITB), Part 34.2 and 34.3 that for purposes of granting a
margin of preference, bids will be classified in one of the following three groups:



Group A: bids from contractors incorporated or registered in Uganda with
more than fifty percent of the bidder’s capital owned by Ugandan Citizens or
by the Government or a Procuring and Disposing Entity of Uganda;
Group B: bids from joint ventures or associations registered in Uganda and
including a contractor qualifying under the conditions in Group A which holds
more than fifty percent beneficiary interest in the joint venture or association;
and
Group C: all other bids which do not qualify for preference under group A and
B.
6
Part 34.3 of the bidding document stated that “bidders claiming eligibility for a margin of
preference must complete the declarations in the bid submission sheet and provide
documentary evidence of their eligibility in accordance with group “A” and “B” above”.
Seyani Brothers & Company (U) Limited submitted evidence of a certified true copy of an
Annual Company Returns Form, having a share capital dated 15th October 2016, indicating
that there are 7 shareholders and the majority shareholder is Mr. Parbat Bhimji Siyani who
owns 52.1% shares of the Company. Seyani Brothers & Company (U) Limited submitted
Mr. Parbat Bhimji Siyani’s passport that indicated his Nationality as a Ugandan.
The Bid submitted by Seyani Brothers & Company (U) Limited therefore fell in Group A
and qualified for a margin of preference of seven percent (7%) in accordance with section
59(A) (1) (a) and Section 59(A) (3) (b) of the PPDA Act 2003.
5.0
APPLICATION FOR ADMINISTRATIVE REVIEW AT PPDA LEVEL
On 15th February 2017, Roko Construction Limited applied for Administrative Review to the
Authority on two grounds. (Annex 3)
1. The projects submitted by Seyani Brothers & Company (U) Limited as experience did not meet
the requirements stated in the NDA bidding document.
The complainant further submitted that constructing foundations and a reinforced concrete
frame for an office block known as block A including a basement car parking and retail outlet
levels at Nile Avenue Kampala does not meet the specifications of a building similar in nature
as this is a concrete frame and not a successfully completed building similar in construction to
the proposed NDA towers as per the tender requirements.
2. Seyani Brothers Company Limited was not eligible for the margin of preference accorded.
6.0.
FINDINGS OF THE AUTHORITY
Ground 1
The bidding document, part 1 of section 3, under the detailed evaluation criteria (Commercial
Criteria) Paragraph 5.2 (d) provided that;
“Evidence by the bidder that they have constructed a minimum of 03 (Three) buildings each with
a minimum of 9 floors in the East African Region during the last 05 (five) years. At least 01 (One)
building among the three buildings should be of phased construction. The contract value of each
building should be a minimum of USD 9,000,000 (United State Dollars Nine Million) or
30,000,000,000 (Uganda Shillings Thirty Billion). The bidder should provide evidence by
submitting completion certificates and copies of signed contracts clearly stating the values.”
7
Seyani Brothers & Co (U) Ltd submitted the following experience in their bid document in respect
to the above provisions which was considered by the Entity during the evaluation process.
No
a)
b)
c)
Name of Project
Number of floors Project Value
Construction of office premises for the
13 floors.
UGX 60,323,502,985
office of the Auditor General at Plot
2C, Apollo Kaggwa Road, Kampala.
Commercial Development on Plot 24 –
9 floors
USD 10,668,090.00
26, Martin Road, Old Kampala.
Construction Foundations and a
15 floors
USD 9,162,903.77
Reinforced concrete frame for an office
block known as Block A including a
basement car parking & retail outlet
levels at Nile Avenue, Kampala.
In respect to Projects above;
a) Construction of office premises for the office of the Auditor General at Plot 2C, Apollo
Kaggwa Road, Kampala
The evaluation committee found that this building complied with the requirements of the
bidding document under Paragraph 5.2 (d).
b) Commercial Development on Plot 24 – 26, Martin Road, Old Kampala
The complainant noted that the Commercial Development on Plot No. 24-26, Martin Road,
Old Kampala only had 8 floors and therefore did not meet the tender requirements.
The evaluation committee found that this building complied with the requirements of the
bidding document under Paragraph 5.2 (d).
During the Administrative Review hearing, NDA further submitted that the building on
one side has 8 floors, however, on the other side it had 9 floors and that the 9th floor was a
terrace.
The MAC members that travelled to Martin Road to carry out a due diligence on the
building in respect to the number of floors established that the building had 9 floors
excluding the terrace. The floors were labelled as B for basement with a car park and G;
the ground floor that has a restaurant, the other floor labelled P with a parking area, and
another level of the restaurant and six apartment floors plus a terrace. Attached is a copy
of the elevation drawings of the building. (Annex 4)
c) Construction foundations and a reinforced concrete frame for an office block known as
Block A including a basement car parking & retail outlet levels at Nile Avenue, Kampala.
8
The complainant noted that the project of Construction foundations and a reinforced
Concrete Frame for an Office Block known as Block A including a basement car parking
& retail outlet levels at Nile Avenue, Kampala was inadequate experience because this did
not qualify as a successfully completed project.
The evaluation committee found that this building complied with the requirements of the
bidding document under Paragraph 5.2 (d).
In light of the above, the Authority established that the project of Construction of foundations and
a reinforced concrete frame for an office block known as Block A including a basement car parking
& retail outlet levels at Nile Avenue, Kampala met the requirements in paragraph 5.2 (d).
Decision of the Authority on Ground One
The Authority finds no merit in Ground One since the buildings submitted under specific
experience met the requirements in paragraph 5.2 (d).of the bidding document.
Ground 2:
The complainant alleged that Seyani Brothers Company Limited was not eligible for the margin
of preference accorded.
The NDA bidding document indicated in the instruction to bidders, Part 34.2 and 34.3 that for
purposes of granting a margin of preference, bids will be classified in one of the following three
groups:



Group A: bids from contractors incorporated or registered in Uganda with more than fifty
percent of the bidder’s capital owned by Ugandan Citizens or by the Government or a
procuring and disposing entity of Uganda;
Group B: bids from joint ventures or associations registered in Uganda and including a
contractor qualifying under the conditions in Group A which holds more than fifty percent
beneficiary interest in the joint venture or association; and
Group C: all other bids which do not qualify for preference under group A and B.
Part 34.3 of the bidding document stated that “bidders claiming eligibility for a margin of
preference must complete the declarations in the bid submission sheet and provide
documentary evidence of their eligibility in accordance with group “A” and “B”
requirements.
ITB 34.3 in the solicitation document provided that:
“bidders claiming eligibility of a margin of preference must complete the declarations in the bid
submission sheet and provide documentary evidence of their eligibility in accordance with
paragraphs 34.2 (a) or (b)”
ITB 34.3 (c) of the bid Data sheet provides that:
The bidder shall submit with its bid the following documents to evidence that they qualify for a
margin of preference
(c) Evidence of citizenship of shareholders or directors.
9
Seyani Brothers & Company (U) Limited submitted the following documents as evidence:
i. A certified true copy of an Annual Company Returns Form, having a share capital dated
15th October 2016, indicating that there are 7 shareholders and the majority shareholder is
Mr. Parbat Bhimji Siyani who owns 52.1% shares of the Company. Seyani Brothers &
Company (U) Limited submitted
ii. Mr. Parbat Bhimji Siyani’s passport (Annex 5) that indicated his Nationality as a Ugandan.
On 6th March 2016, the Authority sought guidance from the Directorate of Immigration and
Citizenship Control on whether:
(a) possession of a Ugandan Passport is proof of Ugandan citizenship; and
(b) Mr. Parbat Bhimji Siyani is a Ugandan.
The Authority further requested the Directorate to verify the authenticity of the Bio data page of
Mr. Siyani Parbat Bhimji Premij. (Annex 6)
On ………, the Authority received a response from the Directorate of Immigration and Citizenship
Control stating that………
Decision of the Authority on Ground Two
Decision pending response from the Directorate of Immigration and Citizenship.
7.0
DECISION OF THE AUTHORITY
In accordance with Section 91 (4) of the PPDA Act 2003 and in light of the findings of the
Authority during the Administrative Review process, the Application for Administrative Review
by Roko Construction Company Limited is ..
10