The Public Procurement And Disposal Of Public Assets Appeals Tribunal has dismissed an application filed by a Chinese company against Uganda National Roads Authority (UNRA) over a multibillion World Bank deal.
In their application, the China Civil Engineering And Construction Corporation wanted the tribunal presided over by Nelson Nerima, Thomas Brookes Isanga, Geoffrey Nuwagira Kakira, Paul Kalumba and Charity Kyarisiima to review the procurement for civil works for the upgrade of Koboko-Yumbe-Moyo road measuring 193.98km from gravel to pavement standard.
The Chinese company stated that on 21 April 2022, UNRA invited tenders using the open international competitive bidding method of procurement and sixteen firms submitted their bids.
After technical evaluation, the evaluation committee of UNRA recommended that the following bidders be considered for financial opening and these include; China Communication Construction Company, Chongqing International Construction Corporation, China Wu Yi Company Limited, China Railway Seventh Group Limited and Zhongmei Engineering Group Limited.
On 15th May 2023, UNRA in writing notified the unsuccessful bidders on the outcomes of the technical evaluation committee.
UNRA informed China Civil Engineering And Construction Corporation that their bid was rejected on grounds that their bid’s Environmental and Social Health Management Strategies and Implementation Plan did not contain a Gender Based Violence and Sexual Exploitation and Abuse prevention and response action plan.
UNRA further stated that China Civil Engineering and Construction Corporation bid did not contain a comprehensive Labour Force Management Plan, did not have the Environmental Protection plan and Emergency Preparedness plan.
China Civil Engineering And Construction Corporation told the tribunal that it was dissatisfied with the evaluation process at the detailed technical stage and immediately applied for administrative review before the UNRA Accounting Officer on 23 May 2022 which was dismissed.
In their application, China Civil Engineering And Construction Corporation accuses the UNRA Accounting Officer of making and communicating her administrative review decision on their complaint outside the statutory period which rendered it null and void.
The Chinese company insisted that it was erroneous for UNRA to reject their bid application on account that there is non-compliance regarding Environmental and Social Management Strategies and Implementation plan upon which their bid was rejected were not part of the evaluation criteria.
UNRA protested the application on point of law that the tribunal has no jurisdiction to preside over the matter explaining that the procurement is pursuant to a financing agreement between the Government of Uganda and the World Bank and was conducted under the World Bank Procurement Regulations.
However, the Chinese company through their lawyers of Muhumuza, Kateeba and company advocates contested UNRA’s submissions explaining that UNRA is a Procurement and Disposing entity and the Public Procurement and Disposal of Public Assets Act applies to all procurements by a Procuring and Disposing Entity.
The lawyers further submitted that UNRA has not shown any conflict between the Act and the conditions imposed by the World Bank.
China Civil Engineering And Construction Corporation insisted that UNRA Accounting Officer made the administrative review decision on 7th June 2023 yet he received the complaint on May, 23rd 2023 which breached the Section 89(7) of the Public Procurement and Disposal of Public Assets Act.
He insisted that it was supposed to be delivered on June 2nd 2023.
The lawyers pleaded to the tribunal to allow their application and direct UNRA to conduct re-evaluation of their proposal in accordance with the PPDA Act.
UNRA through their directorate of legal service submitted that the procurement is pursuant to a financing agreement between the government of Uganda and the World Bank dated October 21st, 2022 in which the International Development Associations which is an arm of the World Bank which agreed to finance the project of constructing the roads and bridges in the refugee hosting districts and all the required laws and regulations were followed.
The lawyers added that China Civil Engineering And Construction Corporation bid only concentrated on HIV/AIDS prevention and mitigation excluding other communicable and other sexually transmitted diseases, illicit behaviour and crime and they only reproduced their Code of Conduct instead of providing an action plan on labour force management.
In conclusion, the tribunal found that China Civil Engineering And Construction Corporation had no locus-standi to file the application because its bid had expired due to the wrongful omission of UNRA at the time of filing the application before the tribunal.
The tribunal lifted the order issued early on enforcing the resolutions of UNRA’s technical evaluation committee and ordered each party to bear its own costs.
By Sengooba Alirabaki
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