The Procurement Appeals Tribunal rules that clarification mechanisms under the PPDA (Evaluation) Regulations are strictly limited and cannot be used to cure material defects or omissions in a bid.

Rebecca Mutesi
May 29
6 min read

Updated: May 30

Legal Brief on Procurement Appeals Tribunal Application No.12 of 2025, Chint Meters and Electrical Uganda Company Limited v Uganda Electricity Distribution Company Limited, Farad Electric Solutions Company Limited & XJ Metering Co. Ltd JV, and Uzuzi Meter Technologies Ltd.

Area of Law: Procurement Law.

Introduction:

Chint Meters and Electrical Uganda Company Ltd (the Applicant) filed an administrative review application to the Procurement Appeals Tribunal on 17th April 2025, seeking to challenge the decision of Uganda Electricity Distribution Company Ltd (the 1st Respondent) disqualifying the Applicant’s bid for being non-responsive to the bidding document.

The 1st Respondent opposed the Application, stating that the Applicant failed to comply with the requirements of the bidding document, which constituted a material deviation.

Representation:

Mr. Robert Apenya and Mr. Tumwesigye Francis, legal representatives from Meritas Advocates - Counsel for the Applicant.
Mrs. Susan Nafula Bukenya, Mr Robert Mugisha, Ms. Dorothy Mubiru - Counsel for the 1st Respondent.
Mr. Denis Kusasira, Mr. Disan Kalanzi, Mr. Grace Waiswa Nsaawa - Counsel for the 2nd Respondent
Mr. Joel Israel Kidandaire - Counsel for the 3rd Respondent (Best Evaluated Bidder).

Background:

Uganda Electricity Distribution Company Ltd (the 1st Respondent) initiated a procurement for supply of PLC single phase and three phase direct connect 100A smart energy meters comprising of Lots 1,2,3, and 4. It invited bidders to bid and the Applicant, the 2nd & 3rd Respondents together with other four firms submitted bids.

Upon conclusion of the evaluation process, the 1st Respondent issued a Notice of Best Evaluated Bidder which indicated that the Applicant’s bid was eliminated at the detailed technical evaluation stage for being non responsive to the technical parameters and for failure to submit samples of items as required in the solicitation document.

The Applicant being dissatisfied with the decision of the 1st Respondent, filed an administrative review complaint to the Accounting Officer of the Entity.

The Accounting Officer dismissed the complaint for lack of merit. The Applicant filed this Application to the Procurement Appeals Tribunal seeking to challenge that decision.

Issues Raised:

Whether the Evaluation Committee acted in breach of Regulation 5 of the PPDA (Evaluation) Regulations, 2023 when it erroneously concluded that the Applicant did not submit the samples required under the bidding document?
Whether the Evaluation Committee acted in breach of Regulation 6 of PPDA (Evaluation) Regulations, 2023, when it failed to seek clarification and additional information from the Applicant in regard to submission of samples for metal oxide varistor, polycarbonate meter boxes and circuit breakers?
Whether the Evaluation Committee acted in breach of Regulation 5 of PPDA (Evaluation) Regulations 2023, the PPDA Guideline 12/2024 and ITB 35.1 when it declared bidders who did not meet the strict technical, capacity and local participation and reservation requirements as the best evaluated bidders for Lots 1 and 3 and Lots 2 and 4?
Remedies available to the Parties?

Determination of the Tribunal:

Issue One: Whether the Evaluation Committee acted in breach of Regulation 5 of the PPDA (Evaluation) Regulations, 2023 when it erroneously concluded that the Applicant did not submit the samples required under the bidding solicitation documents?

The Tribunal observed that Regulation 5 of the PPDA (Evaluation) Regulations, 2023 forms the legal framework within which all bid evaluations must be conducted. It mandates a strict adherence to the Evaluation Criteria specified in the bidding documents and prohibits introduction of any new or amended criteria during the evaluation process.

The Tribunal noted that the bidding document required the bidders to submit one (1) sample for single phase and one (1) for three phase direct connect energy meters. The samples supplied were to conform to the statement of requirements stated in Part 2, Section 6 of the Bidding Document. This meant that the quality of the sample to be provided had to correspond exactly with the sample in quality as per the statement of requirements.

It observed that the Applicant submitted meters without the metal oxide varistor, polycarbonate meter boxes and circuit breakers as required in the bidding document.

The Tribunal found that the failure or omission by the Applicant to supply samples as instructed by the bidding document was a material deviation that would in a substantial way, affect the quality of the supplies to be procured and would ultimately affect the ability of the applicant to perform the proposed contract contrary to Regulation 7(4) a) and b) of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations, 2023. Therefore the Evaluation Committee acted lawfully procedurally and within the confines of its mandate.

The Applicant further asserted that it sought clarification from the 1st Respondent, whose response amended the scope of requirements. The Tribunal found that contrary to the assertion, the 1st Respondent merely responded to bidder queries regarding the number of samples required, not their nature or composition.

Issue Two: Whether the Evaluation Committee acted in breach of Regulation 6 of PPDA (Evaluation) Regulations, 2023 when it failed to seek clarification and additional information from the Applicant in regard to submission of samples for metal oxide varistor, polycarbonate meter boxes and circuit breakers?

The Tribunal observed that Regulation 6(4) of the PPDA (Evaluation) Regulations 2023 permits the Evaluation Committee to seek clarifications only regarding minor, non material issues that do not alter the substance of the bid.

It also noted that ITB 18.3 provided that submission of mandatory samples was a material component of the bid and failure to comply would lead to automatic disqualification of the bidder. Upon perusal of the Applicant’s bid, it revealed that the Applicant did not submit the required samples as per the instructions of the bidding document.

The Tribunal found that the Evaluation Committee lacked any legal basis to seek clarifications from the Applicant and to do so would have amounted to a breach of Regulation 6 of the PPDA (Evaluation) Regulations, 2023 for bidding clarifications that substantially alter anything which forms a crucial or deciding factor in the evaluation of the bids.

Issue Three: Whether the Evaluation Committee acted in breach of Regulation 5 of PPDA (Evaluation) Regulations 2023, the PPDA Guideline 12/2024 and ITB 35.1 when it declared bidders who did not meet the strict technical, capacity and local participation and reservation requirements as the best evaluated bidders for Lots 1 and 3 and Lots 2 and 4?

The Applicant argued that the Evaluation Committee declared Farad Electric Solutions Company Limited and XJ Metering Co. Limited Joint Venture (Lots 1 and 3) and Uzuzi Meter Technologies Limited (Lots 2 and 4) as best evaluated bidders despite the fact that they did not meet the local participation and reserved scheme requirements stipulated in the PPDA Guidelines 12/2024.

The Tribunal observed that the PPDA issued Guidelines No. 12 of 2024 (Reservation Schemes to promote the Participation of Local Providers in Public Procurement) and under Paragraph 3.3 of the Guidelines, supply of electric cables and conductors is restricted to suppliers with manufacturing facilities in Uganda. Similarly, paragraph 3.4 restricts the supply of transformers to suppliers with manufacturing facilities in Uganda.

The bidding documents incorporated the reservation schemes to promote the participation of local providers in public procurements under the PPDA Guidelines No. 12/2024.

The Tribunal found that the Applicant did not adduce evidence that the 2nd or 3rd Respondent did not meet the requirements of technical, capacity, local participation and reservation requirements or that neither the 2nd and the 3rd Respondent has a manufacturing facility in Uganda to qualify as the best evaluated bidders.

The Tribunal reviewed the evidence on file and noted that the 2nd Respondent operated a manufacturing facility in Uganda located at Kyagwe Block 113, behind Roofing, Namanve Industrial Park. Similarly, the 3rd Respondent has a manufacturing facility in Namanve. The 1st Respondent had also conducted a due diligence exercise and confirmed the same.

Rule of Law:

Regulation 5 of the PPDA (Evaluation) Regulations, 2023 serves a critical function in the public procurement regime as it ensures that all bidders are assessed on a level playing field and guards against arbitrary decision making by evaluation committees. It mandates strict adherence to the Evaluation Criteria specified in the bidding document.
Responses to bidder requests for clarification are not meant to amend a bidding document by introducing new information.

Conclusion:

The Application was dismissed, and the decision of the Accounting Officer dated 2nd April, 2025 upheld. The 1st Respondent was advised to proceed with the procurement process to its logical conclusion. Each party was ordered to bear its own costs.

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