EXPERT OPINION: Attorney General’s position to Parliament on Kampala Kingdom Mall is unfounded in procurement and encourages unfairness to government suppliers In this article, Ms Mwesigye Samantha, LLB (MUK), LLM (Public Procurement Law and Policy (Nottingham)), a Public Procurement Specialist with 12 years of experience as an advocate in the Attorney General’s Chambers/ Ministry of Justice & Constitutional Affairs shares her opinion on the procurement impasse between the Parliament Commission and Meera Investments over the procurement of 300 parking spaces for MPs at the latter’s Kampala Kingdom building. The impasse has drawn in the Attorney General who has opined that the Parliamentary procurement team erred in awarding the deal to Meera Investments since their bid did not include the required 300 complimentary parking slots alongside the desired 9,030 square metres of office space, which made the bid non-responsive. In her expert opinion, the procurement law expert dismisses the Attorney General’s opinion saying that the Meera Investments bid was simply “non-conforming” but not “substantially unresponsive” and according to the law can be corrected since there was no “material deviation.” She also questions the requirement to provide 300 free parking spaces as unjust, arguing that the creators of the Procurement Act intended to achieve fairness, transparency and value for money in public procurements, but not for government to press its service providers to the wall.

On 27^th November 2021, the New Vision wrote a story on the hire of rental space by Parliament in Kingdom Kampala titled “Parliament on the spot over sh1.3b Sudhir contract”.

In that story we are told that the Parliamentary Commission issued a standard bidding document for the hire of 9,030 square metres of office space for two years to Kingdom Kampala Limited, requiring it to, among others, give at least 300 car parking slots on a complimentary basis.

However, Kingdom Kampala Limited offered 300 parking slots on a chargeable basis at UGX 54,900,000 per month, totalling UGX 1,317,600,000 for the contract period of 24 months.

The Hon. Attorney General Kiryowa Kiwanuka is quoted to have written to the Clerk to Parliament saying;

“It can be discerned from the above information that the bid by Kingdom Kampala was a non-responsive bid that did not meet the technical specifications which required a 300 car parking space on a complimentary basis.”

He quoted regulations 19(3) and 19(4) of the Public Procurement and Disposal of Public Assets (Evaluation) Regulations, No. 9 of 2014 requiring a detailed evaluation to determine whether a bid conforms to the terms and conditions of the bidding documents, without any material deviation. According to the Attorney General, where a bid is not substantially responsive to the minimum requirement of the detailed evaluation, it shall be rejected at the detailed evaluation stage.

The Hon Attorney General goes on to conclude that: “From the above provisions, it is clear that failure of the evaluation committee to reject the bid on grounds that it did not conform to the statement of requirements is contrary to the law.” is unfounded.

In my expert opinion, this conclusion by the Attorney general is unfounded.

The question should be if there was any “material deviation” or if it was “substantially unresponsive” which is a very subjective test.

A “substantially unresponsive” bid would have been one that left Parliament without rental space or one that did not meet the required rental space requirements. The PPDA Act requires procuring and Disposing Entities to consider best practices and industry standards.

It requires an accounting officer to undertake an assessment of the market price and not to sign a contract where the price is above market price. In determining the market price a wholesome approach is taken and an understanding of the industry is required. It is therefore interesting how the Evaluation Committee, which rightly exercised its judgement in determining if it were a material deviation or if they inadvertently did not even consider it how they can be faulted.

This was not a non-responsive bid. It was a non-conforming bid which the evaluation committee may correct if there is no material deviation. This is corrected by putting a price to the non-conforming part of the bid and cumulating the price of the service thereby getting a clear cost for the provision of the services.

The Attorney General also cited the Supreme Court case of Galleria in Africa Limited & Uganda Electricity Distribution Company Limited and stated that it was instructive on the failure by the parties to follow the PPDA laws.

He quoted the Supreme Court ruling: “Firstly, the objectives of the Act cannot be met without due regard to the provisions of the law as already stated in this judgment. The provisions of the PPDA Act are the life engine of its objectives.

“The objectives of the Act for all purposes and intents are to achieve fairness, transparency and the value for money procurement, among others. Therefore, breach of the provisions is not a mere irregularity since it goes to the core of the Act.”

The Galleria case is good law. In requiring that the PPDA Act (the law) needed to be followed and that the objectives of the law needed to be fulfilled among which is achieving fairness, it was never meant to be read as protecting the Government against service providers. Where is the fairness in requiring a service provider to provide you with 300 free parking spaces? Which of the business people in Parliament would agree to such a clause?

While a lot can be said about the hire of rental space by Government, its Departments and Agencies and the cartels that rent out space to the Government, this is not the case that will cure those ills.