How can an aggrieved person who was not a bidder to a procurement challenge a PPDA Contract?

Procurement and disposal of assets under the public domain are often troublesome due to the stakes that may be involved either financially or politically. The law under the Public Procurement and Disposal of Public Assets Act, 2003 (PPDA Act) provides for intricate rules or procedures to govern the procurement or disposal by public entities. In such an exercise there are various interested parties however where one is not satisfied with the procedure, the remedy may depend on what sort of interest that person has in the procurement process. For example, if a person was not one of the bidders who took part in the exercise, the remedy is not as straightforward as that involving a bidder.

Generally speaking, any person aggrieved by the decision of a public entity in awarding may have recourse to courts through judicial review proceedings. To bring an application for judicial review, the person bringing it must have been a victim of the decision, or must have sufficient interest in the decision. Courts have stated in cases such as Fuelex Uganda Ltd against Attorney General & others (Misc. Cause No. 048 of 2014), that the purpose is to ensure that the individual is given fair treatment by the entity in question. In order to succeed, the person has to show that the decision or act complained of was arrived at illegally, irrationally or without regard to procedure. Article 42 of the Constitution of Uganda states that any person dealing with an administrative body is entitled to be treated justly and fairly and shall have a right to apply to a court of law in respect of a decision taken against him or her.

However, according to the Judicature (Judicial Review) Rules (as amended), a person seeking judicial review needs to demonstrate direct or sufficient interest in the decision to award the contract. This is the legal basis for judicial review and it assumes that the decision has been made against the complainant. Where the complainant did not directly participate in the bidding process, it may be difficult to demonstrate that the decision to award the contract was made against him or her.

What about through Public Interest Litigation?

Under this procedure, anybody can bring an action to enforce a fundamental human right of a group of citizens. A person advancing a claim under public interest litigation need not have personally suffered violation of his or her own human right(s) as a result of the decision to award the contract in question.

In the case of Kikungwe Issa and others against Standard Bank Investment Corporation and three others, Honourable Justice Kiryabwire (as he then was) considered the question of who may commence an action for enforcement of fundamental rights and freedoms under article 50 of the Constitution of Uganda. The Applicant must show that he or she is not a mere “busy body” and should first exhaust other remedies available before coming to court under “public interest litigation”. The complainant would have to prove that all other remedies have been exhausted and that a fundamental human right such as a right to life or to education has been violated by the award of the contract. Practically speaking, it may not be easy to show violation of a fundamental human right arising from a mere award of a contract and as such this remedy may not avail the complainant.

What about with the PPDA Authority?

The procedure for challenging a decision of an entity under the PPDA Authority is provided for under part VII of the PPDA Act as well under the PPDA (Administrative Review) Regulations. Under part VII of the Act, a right to challenge a decision of an entity is given to a bidder. Moreover, when the provisions of the Act are read with regulation 2 of the PPDA (Administrative Review) Regs, it is clear that these remedies are not available even to a bidder once a contract has been entered. This route is therefore restricted in terms of who can benefit and the time duration within which the remedy may be sought.

What about through the EAC Court?

Article 30 of the Treaty provides that any person who is a resident in a Partner State may refer for determination by the East African Court of Justice (EACJ), the legality of any Act, directive, decision or action of a Partner State or an institution on the grounds that such Act, Regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty;

Article 7(2) of the Treaty reads: – “The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights”.

“Good governance” includes adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender, equality, as well as the recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.

In the case of Geoffrey Magezi against Attorney General of Uganda, Reference No.5 of 2013, the applicant who was not a bidder in the procurement process challenged the contract between Government of Uganda and Quality Chemicals for the provision of HIV drugs at inflated prices and at a loss to the public. Although the case was decided against the complainant, the EACJ demonstrated that anybody could seek redress from it even if they were not party to the contract. Therefore the award of a contract under the PPDA Act contravenes the principles of democracy, rule of law, accountability, transparency, equal opportunities and social justice, an aggrieved person may seek a remedy from the EAC Court in terms of the EAC Treaty.

In conclusion, there are various options to challenge a contract awarded under the PPDA Act, however the availability of remedies under the various options depends upon whether one directly participated in the procurement exercise. This will determine the type of remedy and the forum where it can be obtained.