Republic v Public Procurement Administrative Review Board, Surestep Systems and Solutions Limited & Attain Enterprise Solutions Ltd Ex - parte Industrial & Commercial Development Corporation [2017] KEHC 9693 (KLR) | Public Procurement | Esheria

Republic v Public Procurement Administrative Review Board, Surestep Systems and Solutions Limited & Attain Enterprise Solutions Ltd Ex - parte Industrial & Commercial Development Corporation [2017] KEHC 9693 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

MISSELLANEOUS APPLICATION NO 281 OF 2017

REPUBLIC.............................................................................................APPLICANT

VERSUS

PUBLIC PROCUREMENT

ADMINISTRATIVEREVIEW BOARD..............................................RESPONDENT

AND

SURESTEP SYSTEMS AND SOLUTIONS LIMITED....1ST INTERESTED PARTY

ATTAIN ENTERPRISE SOLUTIONS LTD.....................2ND INTERESTED PARTY

EX-PARTE:

INDUSTRIAL & COMMERCIAL DEVELOPMENT CORPORATION

JUDGEMENT

Introduction

1. The subject of this judgement is the Notice of Motion dated 6th June, 2017 by which the ex parte applicant herein, Industrial & Commercial Development Corporation(hereinafter “ICDC”), seeks the following orders:

1) An order of certiorari to remove into the High Court and quash the decision made by the Public Procurement  Administrative Review Board on 26th May 2017 in Request for Review Number 42 of 2017 - Surestep Systems and Solutions Limited vs. Industrial & Commercial Development Corporation  by which it held and directed as follows:

a.  The Request for Review filed by Surestep Systems & Solutions Limited on 5th May, 2017 against the decision of the Procuring Entity in the matter of Tender RFP/ICDC/34/2016-2017 for the supply, implementation, configuration, testing, commissions and support of an integrated management information system for Industrial & Commercial Development Corporation succeeds and is allowed.

b. The decision by the Industrial & Commercial Development Corporation to award Tender No. RFP/ICDC/34/2016-2017 for provision of above services is hereby nullified.

c. The board is satisfied on the basis of the common position adopted by Counsel for the Applicant and Counsel for the procuring entity that the Applicant’s bid was the lowest most responsive tender having attained the highest combined score and proceeds to substitute the award of the Procuring Entity by awarding the Tender to M/s Surestep Systems and Solutions Limited at its tender sum of Kshs. 19,108,936. 36

d.  The Procuring Entity is ordered to complete the procurement process herein as ordered within seven (7) days from the date herein.

e.  Each party shall bear its own costs of this Request for Review.

2) An order of Mandamus directed at the Public Procurement Administrative Review Board, to uphold the decision of the Procuring Entity in Tender RFP/ICDC/34/2016-2017 for the supply, implementation, configuration, testing, commissions and support of an integrated management information system for Industrial & Commercial Development Corporation.

3) An Order that the costs of this Application be in awarded to the Ex-parteApplicant.

Applicant’s Case

2. It was the applicant’s case that it is a state Corporation established by the Industrial and Commercial Development Corporation Act Chapter 445 of the Laws of Kenya and is essentially a Development Finance Institution inter alia providing financial services to industrial and commercial sectors of the Kenyan Economy through loans, guarantees and investments in a wide range of ventures.

3. Recognising critical role that Information and Communications Technology plays in the delivery of services to customers and improvement of internal efficiencies, the applicant seeks to acquire and implement a Management Information System that will enable integrated management of core-business processes in real-time. To this end ICDC being a public body in the context of Public Procurement and Assets Disposal Act commenced the process of procurement of the aforementioned Management Information System and given that the services to be procured are advisory services or otherwise of a predominantly intellectual nature, ICDC settled for procurement of the same by way of Request for Proposal (hereinafter “RFP”).

4. Accordingly, it was averred that in February 2017, ICDC advertised the RFP for the Supply, implementation, configuration, testing, commissioning and support of an integrated management information system. It issued the Requisite RFP tender documents setting out inter aliathe scope of its requirements and the criteria it would use to select the winning bidder.

5. It was deposed that the RFP Tender document provided at Clause 2. 11. 7 that:

“the tender will be awarded to the bidder with the highest combined technical and financial score”

6. The RFP provided at Appendix to Section II - Instructions to Consultants on the subject of “Evaluation Criteria” that the Evaluation of Technical Proposals would comprise 80% and the Financial Proposals would comprise 20%. To the applicant, it was therefore clear that in making its decisions on the award of the tender ICDC would take into account “the quality of the proposal” and the “cost of the services” in the selection of the successful firm hence the selection method applicable in the subject procurement was the Quality and Cost Based Selection (“QCBS”) contemplated at section 124 of the Public Procurement and Assets Disposal Act. As required in a Procurement by RFP the respective bids comprised a “Technical Proposal” and a “Financial Proposal” and only those bidders whose “Technical Proposal” mustered the threshold set out in the RFP documents proceeded to have their “Financial Proposal” evaluated.

7. It was disclosed that the following bidders’ “Technical Proposal” surmounted the minimum threshold set by ICDC and progressed to the opening and evaluation of their respective financial proposals.

a.       Surestep System & Solution Ltd.

b.      Attain Enterprises Solution Ltd.

c.       IAN Soft Technologies Ltd.

d.       System Re-Engineering Ltd.

8. It was averred that the Technical Proposals were weighted against the 80% component and resulted in the following scores being awarded to the aforesaid bidders:

Out of 80 points Out of 100%

Weighting 80 Surestep System Solution 63. 6 79. 5

Attain Enterprises Solution Limited 71. 8 89. 8

IAN Soft Technologies Limited 63. 5 79. 3

System Re-Engineering Limited 61. 6 77. 0

9. According to the applicant, clause 2. 9.2 of the RFP provided as follows:

“The Financial Proposals shall be opened publicly in the presence of the consultants representatives who choose to attend. The name of the consultant, the technical scores and the proposed prices shall be read aloud and recorded when the Financial Proposals are opened. The Industrial & Commercial Development Corporation (ICDC) shall prepare minutes of the public opening.”

10. It was averred that ICDC duly complied with the aforesaid clause 2. 9.2 and the following “proposed prices” were read out in respect of the bids that were opened.

a.       Sure Step System & Solution Ltd-           Kshs. 19,105,936. 36.

b.      Attain Enterprise Solutions Ltd-    Kshs. 34,166,398. 13

11. In this respect the applicant elide on clause 2. 9.3 of the RFP documents, Appendix to section II- Instructions to Consultants under the sub-heading Evaluation Criteria on Financial Evaluation and section IV- Financial Proposal.

12. I was averred that at the opening of the Financial Proposal, all the bidders were therefore informed that the evaluation committee would determine whether the financial proposals were complete by costing all the items of the corresponding technical proposal and correcting any computational errors, a fact which was confirmed by the Review Board in its ruling. According to the applicant, the Financial Proposals by Surestep and Attain were both broken down but on reviewing the same the Evaluation Committee sought a clarification from either bidder.

13. It was stated that the Evaluation Committee noted that the bid by Surestep provided in mandatory terms that there would be an Annual BREP cost of9% payable annually to Microsoft and that Surestep would offer free Support and Maintenance for 1 year, which is the warranty period of the system, and thereafter annual maintenance and support cost will be 10% of the initial cost exclusive of VAT.

14. On the other hand the Evaluation Committee also noted that in its bid Attain had summarized its costs as follows:

Pricing Summary Currency Cost

Software Licenses Kshs. 10,051,926. 24

Software Modules Kshs. 2,500,000. 00

Professional Services Kshs. 12,725,000. 00

Annual Support Fees Kshs. 4,176,865. 25

Sub-Total Cost Kshs. 29,453,791. 49

VAT Kshs. 4,712,606. 64

Total Cost Kshs. 34,166,398. 13

15. According to the applicant, in weighing the respective proposals against the provisions of the RFP, the issue of BREP costs and Annual support fees quoted by Surestep came into focus as the same would have a bearing on the computation of the proposal if they were to be payable together with all the other costs quoted. In respect of Attain it was important to ascertain when the annual costs were to be paid as this would have ramifications on ICDC’s considerations in the RFP. The applicant emphasised that for the avoidance of doubt the subject tender is for the Implementation, Configuration, Testing, Commissioning and Support of and Integrated Management Information System. Therefore the “SUPPORT” component of each bid was very material in the evaluation of the financial proposals although any support costs were by their very nature “post implementation” costs.

16. It was contended by the applicant that on an examination of the respective bids and computation thereof, it became clear that in respect of Surestep, the BREP costs stated as Mandatory and Payable Annually, were indeed post implementation costs as was the 10% annual maintenance fee. On the other hand, in respect ofAttainthe costs stated as “Annual Costs” being Kshs. 4,176,865. 25 were indeed post implementation costs. As the post-implementation costs were optional pursuant to Clause 11. 18 f of the RFP, it was clear to the evaluation committee, that in respect ofSurestep the quoted fee taking into account the “Post-Implementation Costs” would be the sum of Kshs. 19,108,936. 36 plus the annual costs cited above while in respect ofAttain,the quoted costs of Kshs. 34,166,398. 13 were inclusive of post-implementation costs of Kshs. 4,176,865. 25 and VAT thereon. Without these post-implementation costs the costs would amount to Kshs. 29,321,234. 53. Therefore  in its evaluation the committee therefore took into account the costs less the post-implementation costs which are at all material times “post-implementation costs” as had been clarified by the bidders and as a result the cumulative technical and financial scores attributed to Surestep and Attain were as follows:

a.       SureStep Systems & Solutions Ltd………………83. 6%

b.      Attain Enterprise Solutions Ltd………………….84. 8%

c.       Systems Re-Engineering Ltd………………...…70. 9%

d.       Ian Soft Technologies Ltd………………..……..67. 4%

17. It was further deposed that the Evaluation Committee also carried on a due-diligence on all the aforementioned bidders pursuant to section 83(1) (2) of the Public Procurement and Assets Disposal Act, and filed a comprehensive due-diligence report and proceeded upon conclusion of its mandate to submit an Evaluation Report. Accordingly a professional opinion was rendered in accordance with section 84 of the Public Procurement and Assets Disposal Act recommending the award of the tender to M/s Attain at the sum of Kshs. 29,321,234,53. Pursuant thereto, ICDC dispatched a letter of regret dated 25th April 2017 to the three unsuccessful bidders, and in the context of these proceedings to M/s Surestep.

18. However the applicant averred that it came to its attention that the letter sent to M/s Surestep was erroneous to the extent that it made mention of a combined technical and financial score of 79. 5% and not 83. 6%. It explained that 79. 5%was the technical score awarded to Attain and this was a manifest error on the face of the letter of regret. Upon realising this error ICDC immediately issued a corrected letter of regret and dispatched the same to Surestep. To the applicant, the aforesaid error did not prejudice Surestep in any manner whatsoever as they filed a Request for Review before the Public Procurement Administrative Review Board on 5th May 2017 within the period provided by law.

19. It its Request for Review, it was revealed, Surestep impugned the procurement process on the grounds that:

a.  The Respondent (hereinafter referred to as “the Procuring Entity”) acted illegally and ultra vires section 3(a) of the Public Procurement and Disposal Act, 2015 and its decision is to that extend null and void;

b.  The Procuring Entity acted illegally and ultra vires section 58(2) of the Public Procurement and Disposal Act, 2015 and its decision is to that extent null and void;

c.  The Procuring Entity acted illegally and in disregard of section 76(2) of the Public Procurement and Disposal Act, 2015 and its decision is to the extent null and void;

d.  The Procuring Entity acted illegally andultra viressection 78(6) of the Public Procurement and Disposal Act, 2015 and its decision is to that extent null and void;

e.  The Procuring Entity acted illegally and ultra viressection  80(2) of the Public procurement and Disposal Act, 2015 an its decision is to that extend null and void;

f.   The Procuring Entity acted illegally and ultra viressection  81(2) of the Public procurement and Disposal Act, 2015 an its decision is to that extend null and void;

g.  The Procuring Entity acted illegally and ultra viressection  82 of the Public Procurement and Disposal Act, 2015 an its decision is to that extend null and void;

h.  As a result of the conduct of the Procuring Entity aforesaid, the Applicant has suffered and stands to suffer monumental financial loss and damage unless the decision of the Procuring Entity is annulled by this Board.

20. According to the applicant, the crux of the Request for Review was that applying the figures read out at the opening of the Financial Proposals by the bidders, Surestep contended that it would emerge with the “highest combined technical and financial score”.In its response to the foregoing, ICDC explained in detail the manner of its evaluation of the bids and the emergent scores insisting that the same was in accordance with the procedure and criteria set out in the tender documents. Besides its explanation to the Review Board regarding how it had conducted the evaluation of the bids, ICDC also brought to the attention of the Review Board, the possible breach of section 65 of the Public Procurement and Assets Disposal Act which had been brought to the attention of the management of ICDC and was the subject of an on-going review.

21. It was averred that in this regard, ICDC placed evidence before the Review Board, that in the course of the evaluation process, officers acting for and on behalf of Surestep made unsolicited communications to ICDC’s officers Mr. Joseph Waka (Head of Procurement) and Ms Leah Mumbi (Evaluation Committee Member) vide their personal telephone numbers O7**-7**212 and 07**-9****** and urged the Review Board to dismiss the Request for Review. However in its Ruling delivered on 26th May 2017, the Review Board held and directed as follows:

a.  The Request for Review filed by Surestep Systems & Solutions Limited on 5th May, 2017 against the decision of the Procuring Entity in the matter of Tender RFP/ICDC/34/2016-2017 for the supply, implementation, configuration, testing, commissions and support of an integrated management information system for Industrial & Commercial Development Corporation succeeds and is allowed.

b.  The decision by the Industrial & Commercial Development Corporation to award Tender No. RFP/ICDC/34/2016-2017 for provision of above services is hereby nullified.

c.  The board is satisfied on the basis of the common position adopted by Counsel for the Applicant and Counsel for the procuring entity that the Applicant’s bid was the lowest most responsive tender having attained the highest combined score and proceeds to substitute the award of the Procuring Entity by awarding the Tender to M/s Surestep Systems and Solutions Limited at its tender sum of Kshs. 19,108,936. 36.

d.  The Procuring Entity is ordered to complete the procurement process herein as ordered within seven (7) days from the date herein.

e.  Each party shall bear its own costs of this Request for Review.

22. It was the applicant’s case that in light of the foregoing, ICDC had only up to 2nd June 2017 to complete the procurement process with M/s Sure Step and was enjoined to enter into a contract with the firm for the sum of Kshs. 19,108,936. 36. This decision was impugned by ICDC on the ground that in making its determination as it did, the Review Board breached the Law in the manner set out in the Statement filed herewith and hence the filing of the Present Application for Prerogative Orders which raises weighty and compelling issues and is merited and secondly that this Court has the constitutional mandate and jurisdiction to grant the prerogative orders sought in the interests of fairness and justice.

23. It was submitted on behalf of the applicant that in rendering its decision in any proceedings before it, the PPARB must act solely within and can only exercise the powers granted to it by the Public Procurement and Asset Disposal Act 2015 (“the PPADA”) and the Regulations made thereunder. In this case it was submitted that the crux of the dispute is whether the Ex-Parte Applicant acted in breach of section 80(2) and 82 of the Public Procurement and Asset Disposal Act, 2015.

24. According to the applicant it did not breach the aforesaid provisions but rather it followed the same to the letter in the evaluation of the subject tender and it made an award in accordance with the letter and spirit of the law. It was the applicant’s case that the terms of the tender were clearly spelt out in the Tender Documents on the subject of Evaluation Criteria, the Tender Document and on the subject of the Financial Proposal, at Section IV.

25. It was submitted that the RFP, noting that the subject tender was for “implementation, configuration, testing, commissioning and support of an integrated management information system, properly contemplated that the tender would have an aspect of “post-implementation costs”. However according to clause 11. 18(f)  subsequent Annual Maintainance Contract was optional.

26. According to the applicant, it was not contested that the “technical” scores awarded to SureStep and Attain were 79. 5% and 89. 8% respectively. However, upon opening the subject bids, the ex-parte applicant deemed it fit to seek clarifications from SureStep and Attain on the content of their bids in order to understand how the same were made up. Accordingly, the Evaluation Committee therefore wrote to both Surestep and Attain, seeking the certain clarifications to which responses were received from both parties. Based on the said responses, the total technical and financial scores attributed to Surestep and Attain were 83. 6% and 84. 8%respectively hence the Ex-Parte Applicant awarded the subject tender to Attain.

27. It was submitted that in moving the PPARB as seen in the Request for Review, SureStep argued that the financial figures used by the Ex-Parte Applicant amounted to changing the financial proposal contrary to Section 80 (2) of the Public Procurement and Asset Disposal Act since, it was argued, the Ex-Parte Applicant was bound to abide by the figure stated in the bids regardless of the clarifications that it had sought and the effect thereof. In its decision the PPARB agreed with SureStep that in taking into account the figures it did after seeking clarification, the Ex-Parte Applicant breached section 80(2) of the Act and proceeded to direct that the Ex-Parte Applicant enters into a contract with SureStep on the basis of the bid of Kshs.19,108,936. 36 which was the figure presented before the clarifications referred to above were sought.

28. It was however the applicant’s case that it did not breach section 80(2) of the Public Procurement and Assets Disposal Act, hence the decision and directions of the PPARB are amenable to the Orders of Judicial Review sought herein. In the applicant’s view, in conducting the financial evaluation, it only sought clarifications of the bids presented to it, as it was entitled to seek under the Public Procurement and Assets Disposal Act. Further, in absolute terms, the Ex-Parte Applicant did not change the bids presented by the parties but only considered them as presented and applied the true and correct value thereof, with a view to obtaining value for money hence acted in accordance with the law.

29. It was further submitted that by decreeing that the Ex-Parte Applicant do enter into a contract with SureStep, the PPARB has shackled the Ex-Parte Applicant to work with SureStep and effectively taken away its rights under Clause 2. 10 of the Tender Document to “negotiations” and the exercise of its rights thereunder including the right if negotiations fail, to invite the firm whose proposal received the second highest score to negotiate a contract.”

30. The applicant relied on section 3(h) of the PPADA which provides that one of the principles by which public entities should be guided in public procurement is the “maximization of value for money”and submitted that in the present case it was being forced to enter into a contract that does not in its objective view offer it maximization of value for money. This is so because it was being ordered to enter into a contract with a bidder whose bid it has analyzed in terms of the applicable tender documents and found to fall short thereof.

31. It was contended that one of the issues that arose in the course of the Request for Review is that members of SureStep had made unsolicited communications to the procuring entity. However, in failing to address this aspect of SureStep’s inequity, the PPARB was permitting SureStep to breach section 65 of the PPADA and by upholding the bid of a bidder who has breached section 65, the PPARB is clearly in breach.

32. Based on section 80(2) of PPADA, it was submitted that the Ex-Parte Applicant was entitled to carry out its evaluation in accordance with the tender documents. Further, it sought clarifications in accordance with the law and applied the same in the context of the tender documents. Where the tender document spoke of “post-implementation” costs and the clarifications offered demonstrated that the costs were indeed post-implementation then the same were treated as such. However, the PPARB in disregarding the effect of the post implementation costs and ordering the Ex-Parte Applicant to proceed as though the same have no effect on the subject procurement, acted in disregard of pertinent facts and ultra-vires section 80(2).

33. It was the applicant’s case that it was indeed irrational and wednesbury unreasonable to compel the Ex-Parte Applicant to proceed to contract in disregard of this pertinent aspect of its tender documents.

34. The applicant insisted that section 81 of the PPADA permits a procuring entity to seek clarifications from bidders. In its view, it is expected that the clarifications sought shall in one way or the other impact on the outcome of the procurement. In the present case however the procuring entity is being directed to disregard the outcome of is application of section 81 hence the contention that the PPARB’s decision is ultra-vires section 81.

35. The applicant’s position was that section 86(1)(b) provides that the “successful” tender ought to be the responsive proposal with the highest score determined by the procuring entity by combining for each proposal the scores assigned to the technical and financial proposal, “in accordance with the procedures and criteria set out in the request for proposals”.In its evaluation of the subject tender, the Ex-ParteApplicant submitted that it was therefore enjoined to evaluate and determine the highest scores in accordance with the request for proposal. If therefore the request for proposals required that post-implementation costs be considered, and the procuring entity did so in its evaluation, then to suggest that it should contract with a party who does not meet this criterion is ultra-viressection 86(1)(b). Further, to award the subject contract to a party whose bid it did not attain the highest score in accordance with the selection method used by the procuring entity is ultra-viressections 124 and 127 which contemplate that the winning bidder is determined in accordance with the selection method in the request for proposal.

36. It was therefore the applicant’s contention that by awarding the subject tender to the 1st Interested Party, the PPARB acted ultra-viresand in disregard of section 86(1)(b), 124 and 127 of the PPADA.

37. The PPARB, in making its decision, was accused of disregarding pertinent matters to the subject tender, and in particular that the bid by the 1st Interested Party though couched as Kshs. 19,108,936. 36 was premised on costs such as the Business Ready Enhancement which taken into account without the clarification discussed above would have increased the bid substantially. It also ignored the indisputable fact that in taking into account the matters emanating from the clarification, the bid by the 2nd Interested Party achieved the highest combined technical and financial score.

38. According to the applicant, whilst recognizing that the procuring entity was entitled to seek clarifications the PPARB’s decision seems to suggest that regardless of the outcome of the clarifications a procuring entity should not act on the same. In the context of these proceedings, the procuring entity upon seeking clarifications in accordance with the tender documents, realized that the bid by the 2nd interested party achieved the highest combined financial and technical score hence it ought to be awarded the tender subject to negotiations as contemplated under Clause 2. 10 of the Tender Document which provides for “Negotiations”. However, the PPARB’s was that regardless of what its clarifications sought, the Ex-Parte Applicant ought to disregard the same which is unreasonable and irrational.

39. On account of the foregoing it was submitted that the PPARB had fallen into jurisdictional error with the most glaring error being that in the PPARB ordering the Ex-Parte Applicant to enter into a contract with the 1st Interested Party without exercising its right to negotiations as contemplated under Clause 2. 10 of the tender documents. To the applicant, even if the PPARB were correct in its findings, it is not vested with the power to circumvent the provisions of tender documents. In this regard the PPARB fell into jurisdictional error when it purported to direct the Ex-Parte Applicant to enter into contract oblivious to Clause 2. 10 of the tender documents since the Ex-Parte Applicant is entitled to negotiate with the winning bidder whether it be the 1st or 2nd Interested Party in accordance with Clause 2. 10 of the Tender Document.

40. The ex parte applicant relied on Article 227 which provides that when a public body contracts for goods or services, it should do so in a manner that is “equitable, transparent, competitive and cost-effective” and submitted that in the current undertaking, it endeavoured to live up to these aspirations. The PAPRB in its decisions however renders the Ex-Parte applicant’s actions moot and in fact purports to shackle it to tender that does not live up to the aspirations of Article 227 especially the fact that the same does not meet the criteria laid out in the subject tender documents and therefore does not deliver on the Ex-Parte Applicant’s expectations. To that extent, it was submitted that the PPARB acted in breach of or ultra-viresArticle 227 of the Constitution of Kenya by purporting to direct the Ex-Parte Applicant to depart from its settled criteria in its tender documents.

41. In support of its case the applicant relied on the holding of Nyamu, J (as he then was) in  Misc Civil Application 540 of 2008 - R vs. The Public Procurement Administrative Board and Kenya Revenue Authority Ex.P De La Rue.

42. It was therefore submitted that since the decision of the PPARB falls into similar error, the same ought to be quashed and the prayers sought in the Notice of Motion Application dated 6th June 2017 granted as prayed.

Respondent’s Case

43. The application was opposed by the Respondent.

44. According to the Respondent, on 5th May, 2017, the 1st Interested Party filed a Request for Review before the Respondent challenging the award of the Tender No. RFP/ICDC/34/2016-2017 for the supply, implantation, configuration, testing, commissioning and support of integrated financial management information system. After receiving the Request for Review from the 1st Interested Party, the Respondent served a copy on the, Ex Parte Applicant notifying it of the pending Review and requiring it to make an appearance for the hearing of the Review, in accordance with Regulation 74(1) and 74(2) of the Public Procurement and Disposal Regulations, 2006, (hereinafter referred to as “the Regulations”).

45. According to the Respondent, it heard the parties on 23rd May, 2017, considered their pleadings and submissions, determined the application for review and delivered its ruling on 26th May, 2017. Its case was that  it only took into consideration facts that were presented before it and were relevant in deciding the above issues and that its decision was based on its findings that:

a) The tender document provided for a 4 stage evaluation process beginning with mandatory, preliminary evaluation, Technical evaluation and ending with Financial Evaluation and both the Applicant and the successful bidder proceeded to the Financial Evaluation stage and at the end of the process.

b) The Applicant was scored the second lowest most responsive bidder with a score of 83. 6% compared with the successful bidder whose score was 84. 8%.

c) The Procuring Entity revised the tender sum of Kshs. 34,166,398. 13 contained in the successful bidder’s form of tender to Kshs 29,321,234. 53 after seeking clarifications from bidders and omitting costs pertaining to Annual Support Fees.

d) This resulted in reducing the difference of Kshs. 15,060,461. 80 between the sum quoted by the successful bidder and that quoted by the Applicant in their forms of tender.

e) The procuring entity’s action was in contravention of the provisions of Section 82 of the Act.

f) The provisions of section 82 of the Act are couched in mandatory terms and leaves no room for any other interpretation.

g) The tender sum for the successful bidder as read out and as recorded at the tender opening was Kshs 34,166,398. 13 and was not to be subject to any variation whatsoever pursuant to the prohibition contain in section 82 of the Act.

h) Whatever tender price the bidders submitted were expected to include all costs towards the successful delivery of the contract and the Procuring Entity was not justified to make corrections to any bid and in any case this would have been in violation of the provisions of Section 82 of the Act.

i) The Procuring Entity violated provisions of section 80(2) of the Act in evaluating the Applicant’s tender.

j) The bid submitted by the Applicant was the most responsive bid having attained the highest combined score of 83. 6%.

k) The Applicant therefore ought to have been awarded the tender under the provisions of section 86(1)(b) of the Act.

l) If the officers of the Applicant engaged in any unsolicited correspondence with the officers of the procuring entity, the Applicant ought to have been disqualified from the process at the stage when the procuring entity received what it calls the unsolicited correspondences.

m) There was also no evidence showing that the officer who the Applicant allegedly communicated with were members of the procuring entity’s tender processing committee.

46. It was therefore averred that the Respondent made a Decision on 26th May, 2017  and gave the following orders:-

a) The Request for Review succeeds  and is allowed

b) The decision by The Industrial & Commercial Development Corporation to award the Tender is hereby nullified

c) The board is satisfied that the Applicant’s bid was the lowest most responsive tender having attained the highest combined score and proceeds  to substitute the award of the Procuring Entity by awarding the tender to M/s Surestep Systems & Solutions Limited at its tender sum of Kshs 19,108,936. 36

d) The Procuring Entity is ordered to complete the procurement process herein as ordered within seven (7) days from the date herein.

e) On the issue of costs, each party shall bear its own costs of this Request for Review.

47. The Respondent maintained that in making its decision,it considered considering all documents of evidentiary value placed before the Respondent by the parties and the submissions of the parties on each of the issues raised in the Request for Review and that its decision was made within its mandate, and the specific sections of the law in particular section 173 of the Public Procurement and Asset Disposal Act 2015, on which the Board’s decision was pegged.

48. In the Respondent’s view, the Applicant has not demonstrated by an iota of truth that the Board was unreasonable in arriving at its decision or that the Board was guilty of unreasonable exercise of power and irrationality in arriving at its decision. To the contrary the decision is grounded in law after review of all material conditions placed before it and importantly in line with its mandate to uphold public procurement process.

49. Similarly, the Applicant has not demonstrated that the Board in arriving at its decision was guilty of any illegality, impropriety of procedure and irrationality to warrant the variance of the order of the Board since the Board in arriving at its decision complied with the requirements of section 173 of the Act.

50. It was therefore the Respondent’s position that the Applicant’s application was made in bad faith, has no merit and was only calculated to discredit the credibility of the Respondent’s mandate and function, while ultimately eroding the public’s confidence in procurement procedures and processes.

51. In support of its case the Respondent submitted that a proper look at its decision would lead a totally different conclusion and based on Republic vs. Kenya Power & Lighting Company Ltd & another [2013] eKLR,submitted that it is not enough for an applicant in judicial review proceedings to claim that a tribunal has acted illegally, unreasonably or in breach of the rules of natural justice.  The actual sins of a tribunal must be exhibited for judicial review remedies to be granted.

52. It was submitted that there is an onus placed on the ex-parte applicant to demonstrate that the decision of the Respondent was so absurd that no sensible person could ever dream that it lay within the powers of the authority. Applying that standard to the circumstances of the present case where the Respondent gave the reasons for its decision, it was contended that the decision cannot be said to be unreasonable. The procedure for Request for Review is provided for in law and the exercise of jurisdiction by the Respondent has statutory anchoring as well. To that extent the Respondent had jurisdictional competence to determine the Request for Review made by the ex-parte applicant. The Respondent has also demonstrated that it made a determination only on issues that had been presented before it.

53. In the Respondent’s view, what the ex-parte applicant is seeking from this court is a merits review of the Respondents decision which this Court has no jurisdiction to do hence this application is not merited and should be dismissed with costs.

54. The Applicant’s view that that the ex-parte applicant is not disputing the procedure adopted by the Respondent in reaching the decision in question, neither is the ex-parte applicant alleging any bias or malafides on the part of the Respondent; what the ex-parte applicant is disputing is the merits of the Respondent’s decision which respectfully cannot be the subject matter of the judicial review application since a judicial review court does not sit as an appellate court over such matters. In this respect the Respondent relied on Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR, Seventh Day Adventist Church (East Africa) Limited vs. Permanent Secretary, Ministry of Nairobi Metropolitan Development & another [2014] eKLR and Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001 and submitted that what the ex-parte applicant is really trying to do in the present application is to have a hearing on the merits of the decision of the Respondent which the Court as no jurisdiction to undertake in light of the afore quoted decisions.

55. As regards the order for certiorari the Respondent submitted that the same should not be granted because the decision was arrived at in accordance with the sound provisions of the law, after lengthy, exhaustive deliberations and opportunities to be heard accorded to all parties. With respect to the order for mandamus it was the Respondent’s case that a statutory body and office cannot be compelled to act outside the four corners of the law within which it is supposed to operate. In this case and given the facts, it will not be prudent to interfere with the respondents decision which was arrived at pursuant to it’s powers as per section 173 of the Public Procurement & Asset Disposal Actand reliance was placed on Kenya National Examination Councilvs.Republic, Exparte Geoffrey Gathenji & 9 Others, Nairobi Civil Appeal No. 266 of 1996[1997] eKLR and Edward Gacau Kariuki & Others vs. Registrar Of Societies [2007] eKLR.

56. The Respondent therefore prayed that the ex-parte applicant’s notice of motion be dismissed in its entirety with costs to the Respondent.

1st Interested Party’s Case

57. In opposition to the application, the 1st interested party relied on the following rounds of opposition:

1. Thedecisionof the Review Board is sound in law and in consonance with the power donated to the Review Board by Section 173 of the Public Procurement and Asset Disposal Act 2015.

2. Judicial Review is only concerned with the decision making process and procedure but not on the merit of the decision.

3. The issues raised in the Applicant’s Notice of Motion Application dated 6th June, 2017 and the 2nd Interested Party’s Replying Affidavit dated 28th June 2017 were brought up and comprehensively dealt with by the Review Board and the decision of the Review Board is sound and not liable to be disturbed.

4. The Applicant is attempting to argue an Appeal through these proceedings.

5. The application lacks merit and amounts to an abuse of the court process.

58. It was submitted on behalf of the 1st interested party that in response to a Request for Proposal advertisement for TENDER NORFP/ICDC/34/2016-2017For theSupply, Implementation, Configuration, Testing, Commissioning and Support of an Integrated Management Information System the 1st Interested Party duly submitted its bid in terms of the RFP to be considered for the award of the Tender and consequently, the Technical score and financial quotes of the 1st Interested Party and the other Bidders were read out during the financial opening on Monday 10th April at 12. 00pm with the 1st interested party scoring 83. 6 while the 2nd interested party scoring 83. 02.

59. Despite the clear scores and quotes read and noted during the Tender opening and reading on 10th April 2017, on 25th April 2017 the Ex Parte Applicant issued to the 1st Interested Party a regret letter showing that the 1st Interested Party had not been awarded the Tender despite the superior score and financial quote and that the Tender had been awarded instead to the 2nd Interested Party on alleged score of 89. 8%. According to the 1st interested party, it was apparent from the Tender Opening notes and the scoring criteria under the RFP that the 2nd Interested Party would not have attained a score of 89. 8% which they were said to have attained. Besides, the letter of regret issued to the 1st Interested Party indicated that the 1st Interested Party had scored 79. 5% which in fact was the Technical score only. It is noteworthy that in the Ex Parte Applicant’s Response filed before the Respondent the Ex Parte Applicant admitted that the Letter of Regret dated 25th April 2017 did not reflect the 1st Interested Party’s true score.

60. Aggrieved by the decision of the Ex Parte Applicant, on 5th May 2017 the 1st Interested Party filed a Request for Review before the Respondent.  During the said proceedings, the 1st Interested Party made and even in these proceedings the following contentions of law under the Public Procurement and Assets  Disposal Act (“the Act”):

1) The change in the score after what was read at the Tender opening was illegal and in contravention of section 82 of the Act.

2) The change in the 2nd Interested Party’s quote subsequent to the bid opening was illegal and contrary to section 76(2) of the Act.

3) The 2nd Interested Party’s quote was manifestly inconsistent with the bid instructions and the Ex Parte Applicant’s move to assist the 2nd Interested Party to bring it into conformity was disingenuous and illegal as provided in paragraph 2. 5.2 of the Tender Document.

4) The changing of the 2nd Interested Party’s score on account of a clarification, was contra-statute since section 81(2) of the Act provides that a clarification shall not change the terms of the tender.

5) Awarding the tender to the 2nd Interested Party on a criteria not set out in the RFP would be a patent breach of  section 80(2) of the Act.

61. In the RFP it was the unequivocally expressed intention of the Ex Parte Applicant that the total price as submitted in the Financial Proposals would be final and not changeable and this was expressed at Clause 2. 9.3  of the RFP.

62. It was the 1st interested party’s case that if the 2nd Interested Party did not price its support costs, the correct thing for the Ex Parte Applicant to have done should have been to assume that the cost was included in the other costs; not seek a purported clarification, undertake clandestine computations resulting in the 2nd Interested Party’s bid being adjusted downwards.

63. It was submitted that other than Clause 2. 9.3 of the RFP document, a reading of the provisions of the RFP required of the Tenderers unequivocal clarity on itemization and costing of the Tender Price and the RFP, it was contended, was  being categorical on the preparation, presentation, assumptions and restrictions regarding the financial quote, any deviation from the stipulations should have led to the bids being non-responsive within the meaning of section 79(1) of the Act as opposed to eliciting a purported clarification. Especially a deviation leading to the clandestine alteration of the 2nd Interested Party’s financial quote from the declared Kshs 34,166,398. 13 to Kshs 29,321,234. 53 (i.e. a change in the up of Kshs 5,000,000) which by any measure or assumptions cannot be treated as a minor deviation.

64. It was submitted that taking into account the foregoing contentions and exercising its discretion the Respondent made the following key findings:

1. Section 80(2) of the Act applied to the Tender.

2. The RFP Document provided for a 4 stage evaluation process beginning with Mandatory, Preliminary Evaluation, Technical Evaluation and ending with Financial Evaluation.

3. The Procuring Entity revised the tender sum of Kshs. 34,166,398. 13 contained in the successful bidder’s form of tender to Kshs 29,321,234. 53 after seeking clarifications from bidders and omitting costs pertaining to Annual Support Fees. This resulted in reducing the difference of Kshs. 15,060,461. 80 between the sum quoted by the successful bidder and that quoted by the Applicant in their forms of tender.

4. The Procuring Entity’s action was in contravention of the provisions of Section 82 of the Act which provides that “the tender sum as submitted and read out during the tender opening shall be absolute and final and shall not be the subject of correction, adjustment or amendment in any way by any person or entity”

5. Whatever tender price the bidders submitted were expected to include all costs towards the successful delivery of the contract and the Procuring Entity was not justified to make corrections to any bid and in any case this would have been in violation of the provisions of Section 82 of the Act

6. if the officers of the 1st Interested Party engaged in any unsolicited correspondence with the officers of the procuring entity, as had been alluded to by the Ex Parte Applicant, then the 1st Interested Party  ought to have been disqualified from the process at the stage when the procuring entity received what it calls the unsolicited correspondences. Further, there was also no evidence showing that the officer who the Applicant allegedly communicated with were members of the procuring entity’s tender processing committee.

65. On the issue of due diligence, it was submitted that the Board found that based on the evidence provided the procuring entity’s Memorandum of Response that the 1st Interested Party had provided services to the Industrial Development Bank Ltd contrary to the Ex Parte Applicant’s assertions. The 1st Interested Party had produced evidence that it had rendered the said services to the Bank and was paid for the same.

66. It was the 1st interested party’s case that the ex parte applicant’s contention that the decision of the Board would lead to the tender being awarded to a tenderer whose bid fell short of the tender documents was unfounded. The Tender Document required that the evaluation would be based on a combination of both technical and financial evaluation and on average of the two the 1stInterested Party triumphed until the Procuring Entity decided to change the figures behind the Tenders’ backs having opened the financials in the presence of the bidders.

67. As regards the allegation that there was improper communication by the 1st Interested Party with its officers and as such the Board should have dismissed the Request for Review, it was submitted that it was a finding of fact by the Board that there was no evidence of the so called improper communication. The Board also found as a fact that all the Procuring Entity needed to do if in fact there was evidence of improper communication was to disqualify the 1st Interested Party. This was a belated afterthought and it amounted to the Procuring Entity turning over its own role to the Board.

68. On the Ex Parte Applicant’s contention that the Board’s decision disregarded post implementation costs requirements under the Tender Document, it was submitted that the Board in fact emboldened supremacy of Tender Documents in its decision and in particular highlighted the failure by the Procuring Entity in not complying with its own tender document. In fact the note on Post Implementation Costs at pg. 59 of the Ex parte Applicant’s Bundle required the bidders to be clearly stated and the post implementation costs for the first year needed to be included in the Tender sum (Price). Failure to comply with these instructions should have in fact led to a disqualification. Instead the Procuring Entity attempted to help the 2nd Interested Party by changing its quote. To the 1st interested party, had the Procuring Entity strictly complied with the Tender Documents as it purports to have done, the requirements of the RFP Document would have yielded an award of the Tender to the 1st Interested Party in the first place.

69. To the 1st interested party, though the Ex parte Applicant contended that it is a given fact that every clarification would impact the outcome of the procurement, the only impact envisaged by section 81 of the Act is to provide clarity. It is a clear and express intention of the Legislature in Section 81 that clarification should not lead to a change in the bid by the Tenderers. In this regard reliance was placed on this Court’s decision in Republic vs. Public Procurement Administrative Review Board & Another Ex parte: Athi Water Service Board & Another [2017] eKLR.

70. To the 1st interested party, a clarification cannot and should not be an avenue to assist a tenderer who deliberately fails to follow tender instructions especially if the effect of that failure is to submit a misleading quote.

71. As regards section 86, 124 and 127 and that the Board’s decision has the effect of compelling the applicant to enter into a contract with a tenderer whose bid was not in compliance with the Tender document and who did not attain the highest score, it was submitted that this contention is contradictory and fallacious. The Board merely noted the proper criteria that the Procuring entity ought to have followed in evaluating and awarding the tender. The Board has made a correct and law-backed finding of fact that the correct interpretation and application of the tender documents and the evaluation criteria would lead to an award of the Tender to the 1st Interested Party. In the 1st interested party’s view, what the Ex Parte Applicant is now attempting is to invite the Court to undertake an evaluation of the Tenders and an alternative interpretation of the Tender documents and thereby arrive at a finding that 2nd Interested Party was the winning bidder. This of course is a challenge on the merit of the Board’s decision and falls way out of judicial review purview. In any event a correct reading of the Tender document and a correct interpretation of the law would lead to the 1st Interested Party being the successful bidder.

72. Dealing with the allegation that the board disregarded relevant facts, it was submitted that the argument that the 1st Applicants quote of Kshs 19,108,936. 36 did not include costs e.g. business ready enhancement which if taken into account would increase the bid substantially and that out of the clarification, the 2nd Interested Party’s score was higher was invitation to the Court to undertake an evaluation of the bids. To the 1st interested party, the applicant is hoping to engage the Court in a computation exercise and is hoping for the finding of fault in the merits of the computation undertaken by the Board which is not within the powers of judicial review court.

73. In its view, the Ex Parte Applicant’s contention and approach to the computation would amount to rewarding the 2nd Interested Party for not following the instructions on itemization and inclusion of costs and at the same time punishing the 1st Interested Party for being compliant.

74. The 1st interested party contended that the argument that the Respondent ordered the Procuring Entity to enter into a contract with the 1st Interested Party within 7 days without negotiations hence depriving the Procuring Entity an opportunity to negotiate with the 1st Interested Party in violation of the Ex Parte Applicant’s right to file the present Application for judicial review orders, is flimsy and without foundation in the actual ruling of the Board. The Board did not bar the procuring Entity from negotiations; it did not even order the Procuring Entity to sign a contract with the 1st interested Party. The Board merely directed the period within which the Procuring entity should “Complete the procurement Process”. Without a doubt procurement process includes negotiations. The whinge regarding the right to file judicial review application is otiose as the Ex Parte Applicant in fact instituted the proceedings herein within 5 days of the Board’s decision and promptly obtained a stay order.

75. While admitting that each of the two Parties’ counsel was asked to confirm what the two bidders would score if hypothetically the Procuring Entity used the quotes declared during the tender opening and the counsel confirmed the 83. 6% and 83. 02% figures, it was submitted that this was a hypothetical question of fact which does not and could not have been read to impute a concession on the part of the Ex Parte Applicant. It is a computational exercise that the Board itself would have had to undertake anyway.

76. On account of the foregoing and the matters set out in the 1st Interested Party’s Grounds of opposition, the 1st interested Party contended that the Notice of Motion is without merit and should be dismissed with costs on the basis that:

1) The decision of the Review Board is sound in law and in consonance with the power donated to the Review Board by Section 173 of the Public Procurement and Asset Disposal Act 2015.

2) The Board properly addressed itself to the application of section 81 of the Act. The Board did not in any way curtail the entitlement of a procuring entity to seek clarification. The right to seek clarification is however not absolute.  The Board correctly interpreted the purpose of a clarification which is limited to obtaining clarity. Clarification is proscribed where it has the effect of changing the bids.

3) Judicial Review is only concerned with the decision making process and procedure but not on the merit of the decision. The issues raised in the 1st Interested Party’s Notice of Motion Application dated 6th June, 2017 and the 2nd Interested Party’s Replying Affidavit dated 28th June 2017 were brought up and comprehensively dealt with by the Review Board and the decision of the Review Board is sound and not liable to be disturbed.  The 1st Interested Party is therefore attempting to argue an Appeal through these proceedings.

Determinations

77. I have considered the Notice of Motion, affidavits, the written submissions and judicial authorities cited herein and this is the view I form of the matter.

78. In this application the main issue for determination is the extent to which a procuring entity ought to go in clarifying issues after the completion of evaluation of the bids tendered by the bidders.

79. Section 81 of the PPAAD Act provides as follows:

(1) A procuring entity may, in writing request a clarification of a tender from tenderer to assist in the evaluation and comparison of tenders.

(2) A clarification shall not change the terms of the tender.

80. It is therefore clear that under the said provision a procuring entity may seek a clarification of the tender which clarification may assist in the evaluation and comparison of the tenders. However this Court discussed the scope of that process in Republic vs. Public Procurement Administrative Review Board & Another Ex parte: Athi Water Service Board & Another [2017] eKLR where it was held thus:

“Such clarification is however not a passport for the tenderer to change the terms of the tender. In my view a clarification cannot be equated to a confirmation of the procuring entity’s view of the tenderer’s bid. Where the procurement entity can ascertain the bid, there would be no need for the procuring entity to seek a clarification. However the mere fact that the procuring entity seeks a clarification and a response is given does not bind the procuring entity to the purported clarification if the so-called clarification in fact amounted to change the terms of the tender.”

81. One would not therefore have a quarrel with the powers of the evaluation committee to determine whether the financial proposals were complete by costing all the items of the corresponding technical proposal and correcting any computational errors, and to that end seek clarification from the bidders.  However, it is my view that where the terms of the tender document are clear, the procuring entity has no power to invoke the above provisions in order to validate a tender which is, according to the tender documents, not responsive.

82. It is therefore my view that in determining whether the action taken by the procuring entity was a clarification of the tender or was a change or alteration of the terms of the tender, one must look at the terms of the tender document and determine whether the action taken by the procuring entity was substantially in accord with the tender documents and whether the parties to the tender substantially complied with the terms of the tender document. This must be so because where there is no substantial compliance, the procuring entity cannot under the guise of seeking clarification afford the tenderers an opportunity of panel-beating their tenders in order to comply with the terms of the tender document. In my view the examples of clarifications contemplated would be such as those alluded to in section 79(2) and (3) of the Act and these include minor deviations that do not materially depart from the requirements set out in the tender documents and errors or oversights that can be corrected without affecting the substance of the tender though such deviations are required to be quantified to the extent possible; and to be taken into account in the evaluation and comparison of tenders.

83. This position is clearly supported by the tender document itself in which it was expressed in clause 2. 9.3  of the RFP  as follows:

The evaluation committee will determine whether the financial proposals are complete (i.e. whether the consultant has costed all the items of the corresponding Technical Proposal and correct any computational errors). The cost of any unpriced items shall be assumed to be included in other costs in the proposal. In all cases, the total price of the Financial Proposal as submitted shall prevail.

84. In this case it is clear that the following were required of the Tenderers:

i. The Financial proposal prepared by the consultant should list the costs associated with the assignment.  These costs normally cover remuneration for staff, subsistence, transportation, services and equipment, printing of documents, surveys etc. as may be applicable.  The costs should be broken down to be clearly understood by the procuring entity.”

ii. Financial proposals to clearly identify as a separate amount, the local taxes, duties, fees, levies, and other charges.

iii. The Financial proposal to list the costs associated with the assignment which costs should be broken [down] to be clearly understood by the procuring entity.

iv. The prospective bidders to provide a breakdown of costs and any charges such as annual maintenance, annual license fee and software support cost to be clearly stated. Post implementation costs for the first 1 (one) Year would be considered during financial evaluation and to be [in] the tender sum.

85. Therefore whereas I agree with the applicant that the “support” component of each bid was very material in the evaluation of the financial proposals although any support costs were by their very nature “post implementation” costs, it was clear from the tender document that the post implementation costs for the first year was to be considered during the financial evaluation and was required to be in the tender sum. To my understanding where the post implementation costs for the said one year were excluded from the tender sum and the financial evaluation proceeded the cost such unpriced items would be assumed to be included in other costs in the proposal pursuant to paragraph 2. 5.2 of the Tender Document which expressly provided as follows:

“the grand total price should be inclusive of taxes, the price of the equipment/software, all charges, insurance, transportation, delivery, installation, testing, commissioning, maintenance and other costs associated.”

86. As these were the express provisions of the RFP, sections 80(2) and 82 of the Public Procurement and Asset Disposal Act, 2015 would come into play and the said provisions states as follows:

Section 80 (2)

The evaluation and comparison shall be done using the procedures and criteria set out in the tender documents...

Section 82

“The tender sum as submitted and read out during the tender opening shall be absolute and final and shall not be the subject of correction, adjustment or amendment in any way by any person or entity”

87. Accordingly the Procurement Entity was not entitled to rely on section 81 of the Act in order to correct, adjust or amend the tender sum as submitted and read out during the tender opening which by law is stated to be absolute and final.

88. In addition, the RFP also provided at Appendix to section II- Instructions to Consultants under the sub-heading Evaluation Criteria on Financial Evaluation, as follows:

“The tenderers shall complete the financial submission for and the appropriate price schedule furnished in the tender documents, indicating the services to be performed. In the financial evaluation we shall consider:

1. Checking whether the quotation is as per requirements in the tender documents.

2. Checking whether all taxes have been included.

3. Checking whether any computational and arithmetical errors and deviations.

4. Check that the bidder has costed all items as per specifications.

5. Check currency and exchange rates

6. Check unit cost and total cost.

7. Check the validity of the tender.

8. Check Terms of payment.

9. Check any variations in tender prices.

89. It was further disclosed that the RFP provided at section IV- Financial Proposal as follows:

4. 1  The Financial proposal prepared by the consultant should list the costs associated with the assignment.  These costs normally cover remuneration for staff, subsistence, transportation, services and equipment, printing of documents, surveys etc as may be applicable.  The costs should be broken down to be clearly understood by the procuring entity.”

90. However the applicant’s case was that the “technical” scores awarded to SureStep and Attain were 79. 5% and 89. 8% respectively. However, upon opening the subject bids, the ex-parte applicant deemed it fit to seek clarifications from SureStep and Attain on the content of their bids in order to understand how the same were made up. This seems to have been contrary to the express stipulation in the RFP that the costs should be broken down to be clearly understood by the procuring entity. Coming as it were after the technical scores had been awarded the possibility that the answers to the clarifications sought could be tailored to bring the tender within the stipulations of the tender documents and hence defeat the provisions of section 82 of the Act cannot be ruled out. To permit a tenderer to do that would amount to a breach of Section 76(2) of the Act which provides as follows:

“After the deadline for submitting tenders, a person who submitted a tender shall not change, or offer to change the terms of that tender”.

91. It is therefore my view that the Respondent’s finding that as the tender sum for the successful bidder as read out and as recorded at the tender opening was Kshs 34,166,398. 13 and was not to be subject to any variation whatsoever pursuant to the prohibition contained in section 82 of the Act, the procuring entity’s action was in contravention of the provisions of section 82 of the Act, cannot be successfully challenged.

92. I also agree with the Respondent that if the officers of the Applicant engaged in any unsolicited correspondence with the officers of the procuring entity, the Applicant ought to have been disqualified from the process at the stage when the procuring entity received what it calls the unsolicited correspondences.  The Respondent however found as a fact that there was also no evidence showing that the officers who the Applicant allegedly communicated with were members of the procuring entity’s tender processing committee. That being a finding of fact based on the evidence that was presented before the Respondent, I cannot in these judicial review proceedings interfere with the same.

93. The other issue that was raised by the applicant was that the Respondent by ordering it to enter into a contract with the 1st Interested Party within 7 days without negotiations deprived the applicant an opportunity to negotiate with the 1st Interested Party. In my view the ex parte applicant’s position in this respect is not without some merit. The decision of the Respondent seems to have left no room for negotiations contrary to Clause 2. 10 of the Tender Document which provided for “negotiations”and the exercise of its rights thereunder including“the right if negotiations fail, to invite the firm whose proposal received the second highest score to negotiate a contract.”

94. I also agree with the applicant’s position that to direct that  the Procuring entity should “Complete the procurement Process” within a period less than the period prescribed by the law for one to challenge the decision may amount to a violation of a party’s statutory right to file an Application for judicial review orders.

95. Having considered the application, save for the orders I issue hereinabelow, the application fails.

Order

96. Section 11 of the Fair Administrative Action Act, 2015 provides that in proceedings for judicial review under section 8(1), the court may grant any order that is just and equitable, including the orders specified thereunder. Therefore the Court’s power to give relief is not restricted to the remedies identified thereunder but is empowered to fashion appropriate remedies. As was held by the Constitutional Court of South Africa in Fose vs. Minister of Safety & Security [1977] ZACC 6:

“Appropriate relief will in essence be relief that is required to protect and enforce the Constitution. Depending on the circumstances of each particular case the relief may be a declaration of rights, an interdict, a mandamus or such other relief as may be required to ensure that the rights enshrined in the Constitution are protected and enforced.  If it is necessary to do so, the courts may even have to fashion new remedies to secure the protection and enforcement of these all important rights.”

97. In the circumstances the order which commends itself to me and which I hereby issue is that the order directing the ex parte applicant herein to complete the procurement process within seven (7) days is hereby set aside and the substituted with an order that the ex parte applicant does so within 21 days from today and in so doing be at liberty to enter into negotiations pursuant to clause 2. 10 of the RFP with the 1st interested party with a view to reaching an agreement on all points and to exercise its rights under the Tender Document including the right if negotiations fail, to invite the firm whose proposal received the second highest score to negotiate a contract.

98. Each party will bear own costs of these proceedings.

99. It is so ordered.

Dated at Nairobi this 6th day of December, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Mungai for the 2nd interested party

Mr Ochieng for Mr Ataka for the 1st interested party

CA Ooko