Procurement Law


PROCUREMENT EXPERIENCE OF M/S KALENGE, BWANIKA, SSAWA & COMPANY, ADVOCATES

Kalenge, Bwanika, Ssawa & Company, Advocates ("KBS Advocates") is one of the few law firms (if not the only Ugandan law firm) with a dedicated team of procurement law specialists.

At KBS Advocates we approach or look at procurement as the whole totality of the process by or via which a Project is designed, financed and the supply is made or delivered or the construction executed and completed and by which any residual disputes are resolved. As such, our procurement and Project delivery niche advises clients on the obligations, responsibilities and potential risks and liabilities they face right from project inception until final completion of major projects.

Our procurement law department is headed by a Senior Legal Consultants who is specialized in the Procurement Processes especially those endorsed or required by the World Bank and other multilateral financial agencies, and those used in the European Union for Public Works. The procurement processes of the International Financial Institutions have now achieved an important level of homogeny with the evolution and release of the Multilateral Development Banks Harmonised Construction Contract.

The Firm's procurement law practice regularly participates in procurement processes governed by the Uganda Public Procurement and Disposal of Public Assets Act, No. 1 of 2003 as advisor to various Clients and is also conversant with key related international instruments such as the United Nations Commission on International Trade Law (UNCITRAL):-

  • Model law on Procurement of Goods, Construction and Services.
  • Legislative Guide on Privately Financed Infrastructure Projects ; and
  • Legal Guide on Drawing Up International Contracts for the Construction of Industrial Works
  • Our procurement practice lawyers also appreciate the effect that public-private partnerships, privatization, international agencies, and lending institutions such as the World Bank, African Development Bank, and other International Financial Institutions or Multilateral Agencies can have on the project process, and have worked on a number of projects involving those issues.Construction Project Procurement and Delivery

    Our personnel particularly possess substantial know-how in procurement aspects of international construction contracts based on over ten (10) years experience as legal counsel to a major civil engineering construction company operating in Uganda and East Africa. In the field of construction project procurement and delivery, our personnel possess expertise in:-

  • Choice of procurement route method and risk allocation; project initiation documentation; Tender/bid preparation and review; advise on delivery methods and project structures; Project negotiations; prequalification procedures;
  • Construction and Civil Engineering Contract law on international civil engineering construction contract forms such as the Fédération Internationale des Ingénieurs-Conseils (FIDIC), Institution of Civil Engineers (I.C.E.), the General Conditions for Works Contracts Supply and Service Contracts Financed by the EDF (EU), and bespoke forms etc.,
  • Procurement (bidding and tendering processes), contract negotiation and preparation on civil works contracts and consultancy agreements procured on forms of and under the legal and regulatory framework of the Public Procurement and Disposal of Public Assets Act, No. 1 of 2003;
  • preparation of Building and Engineering Agreements, and of consultancy Agreements (on building and construction projects using regional, local and bespoke forms);
  • associated construction issues such as arrangement and negotiation of contract security such as guarantees and bonds, subcontractor arrangements (nominated and domestic), security over construction equipment, step-in-rights, assignments and novation.
  • Assembly and contract documentation for Development/Professional Team(s) and their Terms of engagement and contractual responsibilities, Collateral Warranties.
  • Traditional construction procurement arrangements and alternative structures; design and build construction management, Turnkey arrangements, and Project Partnering. Our lawyers understand the alternative range of project procurement and delivery options, such as design/build (D/B), build-own-transfer (BOT), build-own-operate-transfer (BOOT), general contracting, construction management, and engineer-procure-construct (EPC or turnkey), and the risks inherent in each form of project delivery option. This also includes the procurement and construction related issues pertinent to the above alternative delivery options such as bidding documents, contract security (advance payment guarantees, performance guarantees, and retention), construction lending and finance, and related aspects, joint ventures and consortiums.
  • construction project finance documentation and legal advisory services for contractor insolvency, novation and project rescue gained over several years advising on a locally based road construction projects.
  • Contract claims experience (for both contractual claims and those derivative from the applicable law) mainly in Uganda and briefly in Kenya, and substantive litigation in Uganda.
  • Information Technology (IT) Procurement

    Other procurement experience of this Law Firm has been gained in the field of Information Technology (IT) Procurement where this Firm has been closely involved in the procurement and negotiation of Contracts for the Supply and Installation of Information Systems using or adapting the World Bank's Standard Bidding Documents for the Supply and Installation of Information Systems and those of the Uganda Public Procurement and Disposal of Public Assets Authority. The procurement was for the Ministry of Finance, Planning & Economic Development (Second Economic & Financial Management Project [EFMP II]) for the Integrated Financial Management System (Pilot and Roll-out Phases/Systems).

    From the inception 2003 we were engaged in the above procurement and in negotiation of contracts as full time Legal Counsel attached to the Project until its closure in December, 2006. During that period, we were also engaged in negotiation of appurtenant Service Level Agreements for the roll-out, support and maintenance of the above Information Systems using or adapting the World Bank Standard Bidding Documents, local forms of the Uganda Public Procurement and Disposal of Public Assets Authority and bespoke forms.

    Other Procurement Experience

    Other areas of this Law Firm's procurement experience include:-

  • Advising on procurement processes, contract preparation and management for a Project for the Construction of Uganda Statistics House for the Ministry of Finance, Planning & Economic Development (Second Economic & Financial Management Project [EFMP II]. The Project Construction Contract was procured on FIDIC 4th.
  • Advising on a procurement dispute for procurement of Passenger Boarding Bridges for Entebbe International Airport
  • Preparing a Tender Document incorporating the FIDIC Form of Construction Contract 4th Edition for redevelopment of Kasese Airport
  • Preparing and advising on Tender Documents and Construction Contracts for the proposed VVIP Lounge being developed for CHOGM at Entebbe International Airport
  • Advising on procurement and preparation of a bespoke Construction Contract for an Anti-Retroviral and Anti-malarial Manufacturing Plant; the first 'GMP' Pharmaceutical Plant in East Africa. This Project is in final implementation stages.
  • We also possess abundant print and electronic resources and tools in or for:-
  • procurement law and practice; Procurement strategy, Methods of procurement and Risk Allocation; Legal Issues in Contracting and Procurement; Privilege Clauses; Rights and Duties under Tender Contracts; Tendering and Process Contracts; Legal risks in the Tender Process; Deviations and Non-Compliant Bids, Bid Errors, Material Non-Compliance
  • International construction contract law and dispute resolution (including pursuit and defence of claims);
  • International commercial and trade law; and
  • International Commercial Arbitration for which one of the Partners of this Firm is a Member of the Chartered Institute of Arbitrators of the United Kingdom and of the German Institute of Arbitration (DIS).
  • The Firm is therefore well placed to give Procurement advice and assistance to institutions and individuals in government and private practice, and to business organizations wishing to participate in procurement processes governed by the Uganda Public Procurement and Disposal of Public Assets Act, No. 1 of 2003.

    The Firm also possesses an excellent, well-trained, skilled and exposed multi-disciplinary team of lawyers with special expertise in:

  • Commercial Law, including: Commercial and Contract Law advice and negotiation services encompassing the drafting and preparation of contract documentation, contract negotiation, contract documentation, giving legal advice in contract structuring, contractual risk allocation (advice and structuring), contract delivery advice, regulatory compliance and enforceability of contracts, data protection and privacy issues, performance of contracts and agreements, limitation and management of liability under contracts, continuing legal advice in and for contract administration and management, post-contract management and identification of or formulating claims, non-contentious and contentious legal advice and resolving disputes (including litigation), terms and conditions of business, e.t.c.
  • Structuring projects, particularly property and real estate development joint ventures (corporate, contractual, local authority partnerships, and other property development and financing vehicles); real estate project development finance; landlord and tenant; property and facilities management contracts; pre-lettings, anchor tenancies and tenant-mix.
  • For international projects, advice on local contract laws, local employment, environmental laws and joint venture, consortia and similar agreements with local companies;
  • The procurement legal advisory service we offer runs from project conception to completion and operation. We help formulate projects: we draft and negotiate contracts: we advise throughout the life of the project: we help to bring projects to a conclusion. We deal with all forms of claims avoidance and resolution. We often help clients resolve disputes without recourse to costly litigation or other dispute reolution proceedings.

    In Construction project procurements, we are involved at every stage of the construction process. At the outset we advise employers on the best route for their project and (if acting for contractors) the risks they are assuming on the Project. We advise on and prepare the whole range of commercial contract documentation necessary on any particular project. Our role continues throughout the construction of the project where we advise on issues as they arise and give strategic advice on how best to resolve them. Finally, if disputes do arise, we help our clients to an effective and commercial resolution.

    Our clients include land owners (as well as local authorities), property developers, professional property consultants such as Architects, Quantity Surveyors, Engineers and project managers, financiers, building and civil engineering construction contractors, property and facilities managers and other holders of third party interests in projects. The projects include commercial property development schemes, mixed-use schemes, residential or housing estates, infrastructure projects such airports, roads and bridges, as well as supply procurements and government or procurement services with a public element.