PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC ASSETS AUTHORITY
REPORT ON APPLICATION FOR ADMINISTRATIVE REVIEW BY STRAIGHT
AUCTIONEERS AND COURT BAILLIFS IN RESPECT OF THE PROCUREMENT FOR
PROVISION OF AUCTIONING SERVICES.
ENTITY:
BUNDIBUGYO DISTRICT LOCAL GOVERNMENT
APPLICANT:
STRAIGHT AUCTIONEERS AND COURT BAILLIFS
JANUARY 2017
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1.0
BACKROUND
1.1
On 7th September 2016, the Contracts Committee of Bundibugyo District Local
Government approved the public auctioning disposal method and the Evaluation
Committee for auctioning services to the District.
1.2
On 12th September 2016, the Entity published a bid notice in the New Vision Newspaper
for provision of auctioning services.
1.3
On 10th October 2016, three firms were issued with the bidding document. On the same
day, bids were submitted by the three firms and opened as indicated in Table 1:
Table 1: Record of Bids read out.
No
Name of Bidder
Percentage commission
(UGX)
13%
1.
Reliable Auctioneers
2.
Straight Auctioneers and Court Bailiffs
14%
3.
Intrepid Recovery Association
16%
1.4
On 21st November 2016, the Contracts Committee approved the evaluation report and
awarded the contract to Reliable Auctioneers at a bid total of 13% of the realized total
sales.
1.5
On 21st November 2016, the Notice of the Best Evaluated Bidder as displayed with a
removal date of 5th December 2016.
1.6
On 7th December 2016, a contract was signed between Bundibugyo District Local
Government and Reliable Auctioneers for provision of auctioning services.
1.7
On 13th December 2016, Reliable Auctioneers advertised in the press for the
auctioning/boarding off of motor vehicles, scrap materials and iron sheets belonging to
Bundibugyo District Local Government.
2.0
ADMINISTRATIVE REVIEW PROCESS
2.1
On 19th December 2016, Straight Auctioneers and Court Bailiffs wrote to the Accounting
Officer, Bundibugyo District Local Government to halt the auctioneering exercise that
was scheduled on the same day on grounds of procedural irregularities.
2.2
On the same date (19th December 2016), the District Chairperson instructed the Chief
Administrative Officer to halt the procurement process to make room for investigations
about the said allegations.
2.3
On 20th December 2016, the Chief Administrative Officer wrote to Straight Auctioneers
and Court Bailiffs informing it that the acquisition of the auctioneer was duly undertaken.
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He further stated that the petition was submitted after the statutory period of ten days of
the display of the Notice of the Best Evaluated Bidder.
2.4
On 22nd December 2016, Straight Auctioneers and Court Bailiffs wrote to the Accounting
Officer for a follow up and more clarification on the petition.
2.5
On 27th December 2016, Straight Auctioneers and Court Bailiffs paid a sum of UGX
500,000 to Bundibugyo District Local Government Account Number 0140047180101.
2.6
On 30th December, Straight Auctioneers and Court Bailiffs wrote to the Authority
appealing against the conduct of the procurement committee and the decision of the
Accounting Officer of Bundibugyo District Local Government.
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)
e)
f)
g)
h)
4.2
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;
Best Evaluated Bidder Notice; and
All correspondence and other documentation related to this matter.
On 24th January 2017, the Authority convened an Administrative Review hearing which
was attended by the following individuals:
Table 3: Persons who attended the Administrative Review hearing
No. Name
Designation
Straight Auctioneers and Court Bailiffs
1.
Mr. Godfrey Kasuka
2.
Mr. Richard Ojara
Reliable Auctioneers
3.
Mr. Edward Mugarura
Director
Company Secretary
Director
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The Entity was not represented at the hearing despite having been notified to attend the meeting.
5.0
GROUNDS RAISED BY THE APPLICANT
5.1
Grounds raised at Entity level
The Applicant raised the following grounds at the Accounting Officer level:
i.
Awarding a non-pre-qualified company.
ii.
Parameter or criteria under which Reliable Auctioneers was identified.
iii.
Failure to display the Notice of Best Evaluated Bidder for ten days as required by
law and to communicate to other bidders giving reasons why they never
succeeded in the contract awarding process.
iv.
Failure to follow the parameter/criteria period.
v.
Even the alleged awarded company (Reliable Auctioneer) advertised but did not
follow the rightful procedure for auctioneering processes i.e. no details of the
items to be auctioned or disposed of was reflected in the advert for the public to
compete.
5.2
Grounds raised at PPDA level
i.
That the Accounting Officer did not investigate the issues raised by the applicant
in the petition as required by the PPDA Act and Regulations.
ii.
That the District had two prequalified firms to provide auctioneering services but
were rejected at the time of awarding the tender.
iii.
That the Notice of the Best Evaluated Bidder was not displayed on 21st November
2016 as alleged and that it was not served to the intended recipients.
iv.
That the advert published in the Daily Monitor of 13th December 2016 did not
show the types of vehicles and or their registration numbers to clearly inform the
public on the actual properties to be auctioned.
v.
The Accounting Officer ignored information gathered by the Applicant about the
irregularities, abuse of office and fraudulent intentions of the procurement office.
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6.0
PPDA FINDINGS ON THE GROUNDS RAISED BY THE APPLICANT
Ground One
That the Accounting Officer did not investigate the issues raised by the applicant in the petition
as required by the PPDA Act and Regulations.
Findings:
1.
On 19th December 2016, Straight Auctioneers and Court Bailiffs applied to the
Accounting Officer, Bundibugyo District Local Government for Administrative review
and requested the halting of the auctioning exercise that was scheduled on the same day
due to procedural irregularities.
2.
On 19th December 2016, the Senior procurement Officer, Bundibugyo District Local
Government wrote to the Chief Administrative Officer responding to the issues raised by
Straight Auctioneers and Court Bailiffs.
3.
On 20th December 2016, the Chief Administrative Officer informed Straight Auctioneers
and Court Bailiffs that the acquisition of the auctioneer was duly undertaken and that the
petition was submitted after the statutory period of ten days of the display of the Notice
of the Best Evaluated Bidder. A copy of the response by the Senior Procurement Officer
was also attached to the decision.
4.
On 22nd December 2016, Straight Auctioneers and Court Bailiffs wrote to the Accounting
Officer for follow up and more clarification on its petition with respect to the alleged
fraud surrounding the award of a tender of auctioneering Government equipment at
Bundibugyo District Local Government.
5.
The applicant informed the Authority that it received the information giving raise to the
complaint on 19th December 2016 since it was not aware of the best evaluated bidder
notice and hence applied for Administrative Review on the same date
6.
The Authority reviewed the application by the Applicant dated 19th December 2016 and
noted that it was submitted on the date that the applicant became aware of the grounds of
the complaint and hence the Applicant was within ten working days as required under
section 90(19)(b) of the PPDA Act.
7.
The Authority further found that the Accounting Officer did not constitute the
Administrative Review Committee as required under Regulation 139(2) of the Local
Government (PPDA) Regulations which provides for constitution of a committee of three
persons to review and advise on the complaint. The review was undertaken by the Senior
Procurement Officer only and not a committee.
Decision on Ground One
The Authority finds merit in ground one.
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Ground Two
That the District had two prequalified firms to provide auctioneering services but were rejected
at the time of awarding the tender.
Findings
1.
The Applicant alleged that the award was to a non-prequalified firm yet the Entity had
two prequalified firms for auctioning services which were rejected.
2.
The Senior Procurement Officer had guided the Accounting Officer that since the Entity
had two prequalified firms, they could not be invited as the law requires a minimum of
three firms to be invited.
3.
The Authority found that the procurement was under national bidding and a bid notice
was published the New Vision Newspaper of 12th September 2016. The notice was not
for only prequalified firms.
Decision on Ground Two
The Authority finds no merit in ground two.
Ground Three
That the Notice of the Best Evaluated Bidder was not displayed on 21st November 2016 as
alleged and that it was not served to the intended recipients.
Findings
1.
The Authority found that the procurement file contained a copy of the Notice of the Best
Evaluated Bidder with a display date of 21st November 2016 and a removal date of 5th
December 2016. The Authority was not able to confirm as to whether the notice was
displayed since the Entity did not appear at the meeting with the Authority and no
documentary evidence was on the procurement file that it was received or sent to the
bidders.
2.
The Applicant alleged that it found out on 19th December that the contract for auctioning
services for Bundibugyo District Local Government assets was in progress hence applied
to the Accounting Officer for the review. It was further submitted that it did not receive a
copy of the Notice of Best Evaluated Bidder.
3.
The Best Evaluated Bidder (Reliable Auctioneers) submitted that it was notified of
contract award for provision of auctioning services to Bundibugyo District Local
Government and responded to the same through acceptance of the award as the best
evaluated bidder. The Authority found that the notification was dated 6th December 2016
and the acceptance was dated 7th December 2016.
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4.
The Authority established that there was no evidence of receipt of Notice of Best
Evaluated Bidder by all participating bidders on the procurement file contrary to
Regulation 85 (5) of the Local Governments (PPDA) Regulations, 2006.
5.
The Authority finds no evidence that the Notice of Best Evaluated Bidder was displayed
on the purported date of 21st November 2016 and that the Applicant was not given a copy
as required by law.
Decision on ground Three
The Authority finds merit in ground three.
Ground Four
That the advert published in the Daily Monitor of 13th December 2016 did not show the types of
vehicles and or their registration numbers to clearly inform the public on the actual properties to
be auctioned.
Findings
1.
The Applicant alleged that the advert for the items to be auctioned did not specify the
types and registration numbers of the vehicles to be auctioned.
2.
On 13th December 2016, Reliable Auctioneers published a notice in the Daily Monitor
Newspaper indicating that there was to be a sale/ board off of motor vehicles, scrap
materials and iron sheets belonging to Bundibugyo District Local Government by public
auction. The notice further stated that assets could be viewed by persons who intended to
buy them between 13th – 19th December 2016.
3.
The Authority noted that the period provided between notification of the public auction
and the date of auction was five working days i.e 13th – 19th December 2016 instead of
ten working days as required under Regulation 124(2) of the Local Governments (PPDA)
Regulations, 2006.
4.
The Authority finds that the advert was clear on where to view the assets to be auctioned
not withstanding that the period was less than that under the law.
Decisions on ground Four
The Authority finds no merit in ground four.
Ground five
The Accounting Officer ignored information gathered by the Applicant about the irregularities,
abuse of office and fraudulent intentions of the procurement office.
Findings
1.
The Applicant stated at the hearing before the Authority that he had information of
fraudulent practice amongst District Officials where one of the District officials
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mentioned that Straight Auctioneers was the Best Evaluated Bidder but the result of the
process was otherwise.
2.
The Applicant failed to submit evidence to the Authority and since the Entity did not
appear for the meeting, the Authority was not in position to conclude on this ground.
7.0
OBSERVATIONS
7.1
Issue of bidding document and receipt of bids
1.
The Authority observed from the Evaluation Report that the Applicant was eliminated on
grounds of lack of the required experience in auctioning services evidenced by award
letters or contract agreements and personnel qualifications. The Applicant submitted that
he was denied access to the bidding document and thus submitted the company profile
and a quotation to suit the process since it was not aware of the criteria or requirements.
2.
The Authority further observed that the record of issue of solicitation documents dated
10th October 2016 indicated that the Reliable Auctioneers and Straight Auctioneers and
Court Bailiffs had received the documents on 7th and 10th October 2016 respectively.
However, the record of receipt dated 10th October 2016 indicated that the bids were
received on 10th October 2016 between 11:40 am and 12:47 pm. The record of bid
opening was on 10th October 2016 but did not indicated the time for opening. All this
created doubt on whether there was a bidding document issued.
7.2
Evaluation methodology
1.
The Authority noted that the Entity used the Quality Cost Based Selection evaluation
methodology instead of the Technical Compliance Selection method for the nonconsultancy services of auctioning. The criteria included experience in auctioning
services evidenced by either award letter, personnel qualifications (post graduate in
Laws- Bar Course) and personnel qualifications (Degree in Law). The lowest score of 25
marks was allocated in the bidding document to the most important criteria of experience
in auctioning. The Authority further noted that none of the bidders scored a single mark
on experience in auctioning services yet this was the reason that was stated in the Notice
of Best Evaluated Bidder for disqualification of Straight Auctioneers and Court Bailiffs.
2.
The Authority found that it was irregular to issue bidding documents and receive bids on
the same date. This created doubt as to whether the bidding documents were issued to the
bidders.
3.
The Authority further observed contradictions in the Evaluation Report in respect to
submission of the bid by Straight Auctioneers and Court Bailiffs. The report indicated
that the applicant contradictory as the Applicant states in a document dated 19th
December 2016 that submitted its bid on 7th October 2016 yet the Entity’s Record of
receipt indicates the bid was submitted on 10th October 2016. The Report further more
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states that the Applicant’s total price was 13% of the total price contrary to the 10%
stated in the Applicant’s bid provided by the Entity.
7.3
Discrepancies in the Procurement Forms
The Authority noted the following discrepancies in the procurement forms:
i)
ii)
7.4
The record of bid opening indicated that bid opening was on 10th October 2016
yet the record of issue of solicitation documents also indicated the same date. This
creates doubt on the authenticity of the documents and confirms the allegation
that no bidding document was issued; and
The record of bid opening indicated that the bid price read out was 14% instead of
10% quoted by Straight Auctioneers and Court Bailiffs’ bid dated 7th
October 2016.
Contract Signed
The Authority observed that on 7th December 2016, Bundibugyo District Local Government
signed a contract for provision of auctioning services with Reliable Auctioneers. The Auctioneer
further proceeded with placing the auctioning notice on 13th December 2016. The Authority
found that there were procedural irregularities that led to the contracting of the contractor.
8.0
DECISION OF THE AUTHORITY
In accordance with Section 91 (4) of the PPDA Act and in light of the findings, the application
for Administrative Review by Straight Auctioneers and Court Bailiffs is upheld. However in
light of the presence of the contract, the Authority advises that:
1.
The Accounting Officer should seek the guidance of the Attorney General on the contract
already executed;
2.
The Accounting Officer should caution the Head Procurement and Disposal Unit for
failure to adhere to the procedure and use of the appropriate documents as provided under
the Local Governments (PPDA) Regulations, 2006.
3.
The Entity should refund the Administrative Review fees paid by the Applicant in
accordance with Local Governments (PPDA) Guideline No. 8/2008.
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