1. The application before this court is the one dated 12 October 2024 wherein the Applicant is seeking the following orders;
i. An order of CERTIORARI to remove into the High Court and quash the Respondent’s decision dated 27th September 2024 in Public Procurement Administrative Review Board Application No. 55 of 2024 for Tender No. LOT 2- KUTRRH/TNDR/S/040/PCS-2/2023-2024 for the Provision of Cleaning and Sanitary Services.
ii. An order of PROHIBITION directed at the 1st and 2nd Interested Parties prohibiting them from proceeding with the evaluation of Tender No. LOT 2-KUTRRH/TNDR/S/O4O/PCS-2/2023-2024 in the manner directed by the Respondent in its decision dated 27th September 2024.
iii. An order that costs of this application be borne by the Respondent and the Interested Parties.
2. The Applicant’s case is that the 2nd Interested Party invited bids for Tender No. LOT 2- KUTRRH/TNDR/S/040/PCS-2/2023-2024 for the Provision of Cleaning and Sanitary Services and it participated in the Tender and through a notification of award dated 10th June 2024, the 1st Interested Party informed it that its tender was successful.
3. However, the 3rd Interested Party challenged the 1st Interested Party‘s decision in Request for Review No. 55 of 2024 and in a decision rendered on 12th July 2024, the Respondent among others, quashed and set aside the notification. Aggrieved by this decision the Ex parte Applicant filed Judicial Review Application No. E161 OF 2024 and in its decision the court directed the Respondent to hear the Ex parte Applicant before it could make its determination. On 27th September 2024, the Respondent set aside the notification dated 10th June 2024 and directed the 1st and 2nd Interested Parties to proceed and award the Tender to the lowest evaluated bidder in line with the 1st Evaluation Report and the Due Diligence Report dated 6th June 2024.
4. According to the Ex parte Applicant in arriving at the impugned decision, the Respondent failed to correctly interpret the provisions of sections 79, 80, 83 and 84 of the Act and therefore arrived at a decision which was irrational. unreasonable and violated its legitimate expectation.
5. It is also the Ex parte Applicant’s case that by the said impugned decision, the Respondent failed to properly exercise its jurisdiction under section 173 of the Act by failing to address itself to the provisions of section 67 of the Act and therefore acted ultra vires the Act.
6. The Ex parte Applicant also argues that by the said impugned decision, the Respondent exceeded its jurisdiction under section 173 of the Act by proceeding to render a decision on the contents of the 2nd Evaluation Report notwithstanding that it had declared the said report a nullity and therefore acted ultra vires the Act, by directing the 1st and 2nd Interested Parties to proceed and award the Tender on the basis of the 1st Evaluation Report and the due diligence report dated 6th June 2024 (read 6th May 2024) notwithstanding that there are three options available to the 1st Interested Party, to wit;
i. Seek a clarification from the Is1 Evaluation Committee on the discrepancies noted as observed by the Respondent at paragraph 96 of its decision.
ii. Terminate the tender as contemplated by the Respondent at paragraph 96 of its decision or
iii. Disband the ISI Evaluation Committee pursuant to section 46 (1) (d) of the Act.
7. The Ex parte Applicant urges that the impugned decision is made in error of fact, irrational and unreasonable as the 3rd Interested Party submitted a letter from NEMA referenced as compliance certificate for cleaning services dated 5th July 2023 instead of submitting a valid NEMA Certificate for waste management and that the purported NEMA’s compliance certificate for cleaning services dated 5th July 2023 was issued to an entity known as Lukeparm Cleaners Ltd and not to Lakeparm Cleaners Ltd, the 3rd Interested Party. According to the Ex parte Applicant the Respondent acted unreasonably within the Wednesbury’s principle of unreasonableness.
8. In response to the Motion the Respondent filed a Replying Affidavit sworn on 18th October,2024 by James Kilaka who introduces himself as a procurement professional and the Acting Secretary of the Public Procurement Administrative Review Board. The Respondent’s case is that on 9th September, 2024, the Respondent issued a Hearing Notice for the virtual hearing of Request for Review No. 55 of 2024, scheduled for 17th September, 2024. On 16th September, 2024, the Ex-parte Applicant, through Kuloba & Wangila Advocates, filed a Replying Affidavit.
9. However, during the hearing on 17th September,2024, it was discovered that the Ex-parte Applicant had not received the Amended Request for Review or the 1st and 2nd Interested Parties' Memoranda of Response. As a result, the hearing was adjourned to 20th September,2024, with instructions for the missing documents to be served and the Ex-parte Applicant granted leave to submit additional documents.
10. At the hearing, all parties were represented by their respective advocates. Each party, including the Ex-parte Applicant, was given the opportunity to present their case, and the Respondent reserved its decision, promising to deliver it by 27th September, 2024.
11. Following the hearing, the Respondent prepared and issued its decision on 27th September, 2024, sending a copy of the decision to all parties' advocates via email. The decision allowed the Request for Review and directed the 1st and 2nd Interested Parties to conclude the procurement process related to the tender.
12. The Respondent is said to have considered the following issues in reaching its decision;
i. Whether the Procuring Entity’s Evaluation Committee’s disqualification of the Applicant from the subject tender was in line with the provisions of the Constitution of Kenya, 2010, the Act, the Regulations 2020 and the Tender Document?
ii. Whether the Procuring Entity issued Notification Letters compliant with Section 87 of the Act and Regulation 82 of the Regulations 2020?
iii. What orders should the Board issue in the circumstance?
13. Additionally, the Respondent urges that it clarified that under Section 173 of the Act, it had the authority to rule on the nullity of actions by the Procuring Entity, and therefore its decision on such matters was correct. It also stated that there was no legal prohibition preventing the Respondent from commenting on actions it determined to be a nullity, specifically addressing the 2nd Evaluation Report.
14. The Respondent’s case is that it noted that no party, including the Ex-parte Applicant, raised concerns about unauthorized access to confidential information related to the tender. It also states that it properly exercised its powers and was not required to address issues not raised by any of the parties before it.
15. According to the Respondent the 3rd Interested Party submitted a valid NEMA Compliance Certificate, and the description of the 3rd Interested Party as “Lukeparm Cleaners Limited” instead of “Lakeparm Cleaners Limited” was a typographical error. It is the Respondent’s case that in any event the Ex parte Applicant has not led any evidence to suggest that there is a separate entity going by the name “Lukeparm Cleaners Limited” that equally holds a similar NEMA certificate.
16. The Respondent’s case is that it had reviewed the Due Diligence Report, which found the Ex parte Applicant's staff lacked adequate PPE, cleaning equipment, and had delays in the delivery of supplies. These were some of the valid concerns raised by the Evaluation Committee.
17. The Respondent denies misapplying any law and affirms its actions were reasonable and rational, and that the Ex parte Applicant had not shown any irrationality in the Respondent’s decision-making. It is urged that the Respondent followed natural justice principles, giving all parties an opportunity to be heard and reviewing all relevant materials before making its decision.
18. It is also his case that the Ex parte Applicant has failed to show any evidence of illegality, irrationality, or procedural impropriety in the Respondent’s decision-making process. It requests that the Court dismiss the Ex parte Applicant’s Notice of Motion with costs. However, if the Court finds merit in the application, the Respondent seeks to have the matter referred back to it for re-determination.
19. The Respondent’s case is also that in the event the Ex parte Applicant’s application is successful, the Respondent urges the Court to follow Section 175(7) of the Public Procurement and Asset Disposal Act, which disallows costs if the Respondent's decision is set aside.
20. The 1st and 2nd Interested Parties’ also filed a Replying Affidavit sworn by Susan Kihato who introduces herself as the Corporation Secretary and Head of Legal Services in the 2nd Interested Party.
21. The 1st Interested Party’s case is that after submission the 1st Interested Party formed a Tender Evaluation Committee to assess the 20 bids that had been received. A preliminary evaluation was conducted, resulting in the disqualification of 13 bids, leaving only 7 bids, including those of the 3rd Interested Party and the Ex parte Applicant. A Technical Evaluation followed, during which 4 bidders were deemed non-responsive, narrowing the field down to 3 bids, including those from the 3rd Interested Party and the Ex parte Applicant, which were advanced to the Financial Evaluation stage.
22. During the Financial Evaluation, one more bid was disqualified and although it was the lowest responsive bid, its tender price was deemed unreasonably low. This left only two remaining bidders. Upon due diligence being undertaken on the Ex parte Applicant, who was the second lowest evaluated bidder it was revealed that while the Ex parte Applicant had experience in office cleaning, it lacked the specialized cleaning experience required for the specific tender.
23. According to the 1st and 2nd Interested Party based on these findings, a professional opinion was issued on 17th May 2024, by Mr. Joseph Maina, the manager of supply chain management for the 2nd Interested Party. The opinion is said to have recommended awarding the tender to the 3rd lowest bidder, the 3rd Interested Party.
24. However, the 1st Interested Party rejected this recommendation and instructed the formation of a new Evaluation Committee. This new Committee re-evaluated the tender and awarded it to the Ex parte Applicant on 10th June 2024. Aggrieved by this decision on 20th June 2024 the 3rd Interested Party filed a request for review with the Respondent, challenging the legality of the 2nd Evaluation Committee, particularly in relation to Section 46 (4) (d) of the Act.
25. On 8th July 2024, the Respondent is said to have considered the request for review submitted by the 3rd Interested Party, and subsequently issued a decision on 12th July 2024, in accordance with its legal deadlines. The Ex Parte Applicant, dissatisfied with the Respondent’s decision, filed Judicial Review Application No. E161 of 2024, claiming that it had not been involved in the proceedings before the Respondent.
26. On 6th September 2024, the High Court issued a ruling in the Judicial Review case, directing that the Respondent provide the Ex parte Applicant an opportunity to be heard before making a final decision on the 3rd Interested Party's request for review. As a result, the Ex Parte Applicant was given the chance to present its concerns in writing and through a hearing, which was held by the Respondent on 20th September 2024.
27. The 1st and 2nd Interested Party’s case is that at no point during the proceedings did the Ex parte Applicant request a decision on any issue under Section 67 of the Public Procurement and Disposal Act 2015 and as such the Respondent could not address matters that were not raised as contentious by any of the parties involved in the case.
28. It is urged that the Board’s failure to address Section 67 of the Public Procurement and Asset Disposal Act should be seen as an omission, not a commission. Further that, it cannot be considered an ultra vires act, which, according to Black's Law Dictionary, refers to actions taken beyond the lawful authority granted to a decision-making body.
29. It is also urged that Section 173 of the Public Procurement and Asset Disposal Act 2015, as amended in 2022, does not prevent the Respondent from further commenting on the merits of a report it has already declared null and void, in order to strengthen its argument and provide justification for its decision.
30. The 1st and 2nd Interested Party argue that a party does not have the right to dictate the options available to a decision-making body like the Respondent, as the Ex parte Applicant has attempted to do in its submissions. According to the 1st and 2nd Interested Party Section 173 which is said to grant the Respondent its powers, does not authorize it to seek clarifications from an Evaluation Committee, or to disband an Evaluation Committee.
31. They also urge that the Respondent properly evaluated the merits of the review brought before it, and in doing so, provided all parties with a fair hearing, in accordance with the High Court’s directions in Judicial Review Application No. E161 of 2024.
32. The 1st and 2nd Interested Parties’ also argue that the Respondent acted fairly and in line with its mandate under the Constitution of Kenya, 2010, the Public Procurement and Asset Disposal Act 2015, the 2020 Regulations, and the Fair Administrative Action Act.
33. They argue that this Judicial Review application, as filed, is detrimental to the efficient service delivery at the 2nd Interested Party, which is a level six hospital urgently in need of professional and continuous sanitary services currently being provided by the 3rd Interested Party, but without a properly executed contract, as the tender, which was meant to conclude in June 2024, has been tied up in litigation since then.
34. According to the 1st and 2nd Interested Parties the Ex Parte Applicant had ample opportunity to address the issues raised in this Judicial Review Application, both before the Respondent and in the earlier Judicial Review case, Judicial Review No. E161 of 2024.
35. Their case is also that it is a well-established principle that litigation must come to a conclusion; therefore, the Ex parte Applicant cannot perpetually subject the Respondent and the Interested Parties to an ongoing cycle of litigation between the Respondent and the High Court in Judicial Review.
36. The 3rd Interested Party filed a Replying Affidavit sworn on 22 October 2024 by Alice Wanjiku Kiai who introduces herself as the Managing Director of Lakeparm Cleaners Limited, the 3rd Interested Party herein.
37. The 3rd Interested Party’s case is that none of the allegations that it was privy to confidential information was ever raised by the Ex parte Applicant in their Response to the Review and the same was also never raised by the Ex parte Applicant during its submissions. It is also its case that the issue of the NEMA Certificate was issued to a different entity did not form part of the allegations raised by the Ex parte Applicant in their Replying Affidavit which formed the basis of their response to the 3rd Interested Party’s Review.
38. It is the 3rd Interested Party’s case that Section 83 of the Public Procurement and Asset Disposal Act mandates due diligence as part of the post-qualification process. The 3rd Interested Party claims that while initially identified as the lowest evaluated bidder, they were later informed their bid was unsuccessful, despite a due diligence report suggesting otherwise.
39. According to it the Evaluation Committee took almost the entire tender validity period to issue the rejection letter, leading to the review proceedings. Further that the 3rd Interested Party's NEMA (environmental) Certificate was compliant and recognized at all stages of the tender evaluation. The first properly constituted Evaluation Committee by the 1st and 2nd Interested Party is said to have confirmed that the 3rd Interested Party had a valid Certificate.
40. The 3rd Interested Party urges that the Evaluation Committee expressed concerns over the Ex parte Applicant’s ability to deliver, despite quoting the lowest price, and recommended conducting due diligence. Upon the same being conducted the report indicated that the Ex parte Applicant was unqualified for the specialized cleaning required by the tender.
41. According to the 3rd Interested Party a professional opinion under section 84 of the Public Procurement and Asset Disposal Act supported awarding the tender to the 3rd Interested Party, which is a crucial part of the procurement process.
42. The 1st and 2nd Interested Parties are said to have admitted that reconstituting the Evaluation Committee, was an irregular action. The 2nd Evaluation Committee's actions, including disqualifying the Applicant, were deemed null and void by the Respondent’s Board.
43. The 3rd Interested Party urges that Section 84 of the Act grants power of issuance of a professional opinion to the head of procurement function. Further that the 1st Professional Opinion was indeed issued by the said Head and that, it is not in dispute that the 2nd Professional Opinion was not properly issued as it was not issued by the proper officer and no delegated authority was presented.
44. It is also the 3rd Interested Party’s case that contrary to the allegations of the Ex parte Applicant, the Board merely directed the 1st and 2nd Interested Parties to proceed and complete the procurement process in line with the initial recommendations of the 1st Evaluation Committee and initial Professional Opinion. Further that this is after the 1st and 2nd Interested Parties made a clear concession, also brought about by evidence before it, of the illegal actions in re-constituting another Evaluation Committee.
45. The 3rd Interested Party also relies on Sections 173(1) (a) of the Act inter-alia which grants the Respondent powers to annul anything the accounting officer of a procuring entity has done in the procurement proceedings and (b) thereof, proceed to issue directions with respect to anything to be done in the procurement proceedings. It is urged that there exists no evidence of ultra vires nor unreasonableness as alluded to by the Ex parte Applicant warranting grant of the orders sought.
PARTIES SUBMISSIONS
46. The application was canvassed by way of written submissions.
47. The Ex parte Applicant filed written submissions dated 26th October 2024 and Supplementary Written Submissions dated 30th October 2024.
48. On the principles of Judicial Review, the Applicant relies on the cases of Council of Civil Service Unions v Minister For the Civil Service 2 [1984] 3 ALL ER 935 and Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300.
49. The Ex parte Applicant submits that the Constitution and the Public Procurement and Asset Disposal Act provide the minimum ingredients of a fair, transparent and accountable tendering process. Further that there is need to observe the provisions of the Constitution as was the court held by the Court in Republic vs Independent Electoral and Boundaries Commission & another Ex Parte Coalition for Reform and Democracy & 2 others [2017] eKLR.
50. Further that public entities must be guided by Articles 10,27,201, 227 (1) and 232 of the Constitution in their tendering processes. Efficient public procurement practices contribute towards sound management of public expenditure. The objective of public procurement is to provide quality goods and services in a system that applies the principles specified in Article 227 (1) of the Constitution.
51. It is also submitted that good governance in public procurement provides the assurance that public procurement and asset disposal processes are operating effectively and efficiently. Such processes are underpinned by broader principles including the rule of law, integrity. transparency and accountability.
52. It is the Ex parte Applicant’s case that Section 3 of the Act provides that public procurement and asset disposal by state organs and public entities shall be guided by among other things the national values and principles provided for under Article 10 of the Constitution, Equality and freedom from discrimination provided under Article 27 of the Constitution, the principles of public finance under Article 201 of the Constitution and the Values and principles of public service as provided for under Article 232 of the Constitution. The Applicant relies on the case of Mugoye & Associates vs. Kiambu County Assembly Speaker [2018] eKLR in support of this position.
53. In arriving at the impugned decision, the Respondent committed an error of law illegality by failing to correctly interpret the provisions of 79, 80, 83 and 84 of the Act and therefore arrived at a decision which was irrational, unreasonable and violated the Applicant’s legitimate expectation.
54. The Ex parte Applicant refers to the case in Republic vs. Public Procurement Administrative Review Board; Kenya Power & Lighting Company Limited (Interested Party) Ex parte Transcend Media Group Limited [2018] eKLR where the Court held that in determining whether or not an error of law has been committed regard is made to the description of illegality.
55. It is the Ex parte Applicant’s submission that Section 83 of the Act permits the procuring entity to conduct due diligence on the tenderer recommended for the award. However, due diligence does not involve performing a new evaluation as outlined in sections 79 and 80 of the Act. Instead, the due diligence process focuses on verifying the tenderer's ability to effectively fulfill the resulting contract, based on the references provided by the bidder.
56. The Ex parte Applicant also relies on Republic vs. Public Procurement Administrative Review Board; Kenya Airports Authority Ex parte Kenya Airports Parking Services Limited[2019]eKLR where the Court held “The law on due diligence is as stated in the foregoing provided by section 83,and does not include the issue of a tender’s responsiveness”.
57. The Ex parte Applicant submits that the request for review was anchored on access to confidential information by the 3rd interested party and that access to confidential information is punishable under section 6 of the Act and breach of the said provision by a tenderer may lead to debarment. Further that access to confidential information is not only an illegality, it denies the process fairness, transparency and accountability.
58. Section 67 of the Act guards against access to confidential information held by the procuring entity by the tenderers and the public in the procurement process.
59. Clause 28.1 of the tender document provides that information relating to the evaluation of tenders and recommendation of contract award shall not be disclosed to tenderers or any other persons not officially concerned with the tendering process until the information on the intention to award the contract is transmitted to all the tenderers.
60. According to the Applicant the 3rd Interested Party’s averments at paragraph 4 and 6 of the request for review leads to an inference that the 3rd Interested Party had access to confidential information held by the procuring entity.
61. The Applicant relies on PPARB No.11 of 2016;Amro Insurance Brokers Limited v Kenya Wildlife Service where the Court refered the matter to the Anti-Corruption Authorities after the Applicant was found to have based its request for review on confidential documents. The Applicant also relies on Petition No.13 of 2020 as consolidated with Petition No.18 (E019) OF 2020;Kenya Railways Corporation & 2 Others v Okiya Omtatah Okoiti & 3 Others.
62. It is also its submission that the respondent’s directions at paragraph 5 amounts to usurping the role of the accounting officer and the evaluation committee in the evaluation process. The Applicant also submits that by taking a letter referring to a compliance certificate for cleaning services as equivalent of a Certificate of Waste Management under the tender document, the respondent amended the terms of the tender document in favour of the 3rd interested party and therefore exceeded its jurisdiction.
63. Reliance is placed in the cases Republic vs. Public Procurement Administrative Review Board & 2 others Ex parte Coast Water Services Board &another [2016] eKLR and Republic vs. Public Procurement Administrative Review Board & 3 Others Ex parte Olive Telecommunication PVT Limited [2014] eKLR.
64. The Ex parte Applicant submits that as there is sufficient evidence that the 1st and 2nd interested parties had brought to the attention of the Respondent that the 3rd Interested Party had access to confidential information the Respondent had a duty to determine it as was held by the Court in Sinopee International Petroleum Service Corporation v Public Procurement Administrative Board & 3 Others (Civil Appeal E012 of 2023)[2024] KECA (KLR)(23 February 2024) ( Judgment).
65. It is also submitted that the Respondent had no jurisdiction to determine an issue that had already been declared a nullity, because doing so has the effect of prejudicing further proceedings in the procurement process. According to the Applicant once the Board makes a merit determination on a request for review before it, the Board becomes functus officio by dint of the provisions of sections 173 and 175(1) of the Act.
66. The Respondent also filed written submissions dated 29th October 2024 and in the submissions it urges that the purpose of judicial review is to ensure that a party receives fair treatment in the hands of public bodies. Further that it is not the purpose of judicial review to ensure that the public body, after according fair treatment to a party, reaches on a matter which it is authorized by law to decide for itself, a conclusion which is correct in the eyes of the court. In support of this position reliance is placed in the cases of Republic vs. Public Procurement Administrative Review Board & Another ex parte Gibb Africa Ltd & Another [2012] eKLR and Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300.
67. On the scope of Judicial Review, the Respondent relies on the cases of Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR, Seventh Day Adventist Church (East Africa) Limited v Permanent Secretary, Ministry Of Nairobi Metropolitan Development & another [2014] eKLR and Kenya Pipeline Company Limited V Hyosung Ebara Company Limited & 2 Others (2012) eKLR.
68. It is the Respondent’s submission that in order for an applicant to move the Court into giving orders on the ground that a tribunal has committed an error of law, the applicant must demonstrate that there is indeed a mistake that goes to the jurisdiction of the tribunal. Further that misinterpretation of the law is not sufficient to move a judicial review application. The Respondent also urges that as was held by the Court in Municipal Council of Mombasa vs. Republic & another [2002] eKLR once a judicial review court gives a clean bill of health to the process, it must down its tools without considering the merits of the decision.
69. The Respondent submits that it acted in good faith and that in the event this Honourable Court is inclined to uphold the Ex parte Applicant’s prayers, then the Respondent should not be condemned to pay costs. Further that Section 175(7) of the Public Procurement and Asset Disposal Act bars issuance of costs in the event the decision of the Board has been quashed.
70. The 1st and 2nd Interested Parties’ in their submissions dated 29th October 2024 submit that a Judicial Review Court is only concerned with the process leading up to the decision making. It is also their submission that the Ex parte Applicant has failed to make any nexus between section 67 and 173 of the Act but has only pronounced them as blanket provisions which were in contravention by the Respondent.
71. The 1st and 2nd Interested Parties’ submit that contrary to the Ex parte Applicant’s submission the Respondent did not act unreasonably within the Wednesbury’s principle of unreasonableness as set out in Council of Civil Service Unions vs. Minister for Civil Service [1985] A.C. 374,410.On the issue of costs they urge that it is trite that costs follow the event.
72. The 3rd Interested Party also filed written submissions which are dated 25th October 2024 and in the submissions they urge that the Respondent was within the range of permissible decisions and orders. It relies on the case of Republic vs. Public Procurement Administrative Review Board; Shenzhen Instrument Co. Limited & another (Interested Party) Ex parte Kenya Power and Lightning Company Limited & another (Interested Party) Ex parte Kenya Power and Lightning Company Limited [2019] eKLR.
73. It is submitted that the Applicants have not directed the Court to any specific law or regulations governing the jurisdiction of the proceedings before the Respondent which prohibits them from additionally proceeding to interrogate the actions of a Committee whose actions they have declared to be null and void.
74. According to the 3rd Interested Party raising an issue of error of law ad jurisdiction where the Respondent has merely analysed evidence before it is misplaced. Reliance is placed in the case of Republic v Business Premises Rent Tribunal & Another Ex parte Ruth Wachira T/A Amigirl Beauty Parlour & Another [2013] eKLR where the Court observed that the mere fact that a Tribunal or statutory body or authority has erred in the course of its inquiry is not a ground to quash the decision by way of judicial review.
75. It is submitted that there was no call from the Ex parte Applicant for the determination of allegations of contravening section 67 of the Act and as such the same could not be framed as an issue for determination. In buttressing this argument, the case of Republic v Public Procurement Administrative Board; Leeds Equipments & Systems Limited (interested party); Ex parte Veterinary Vaccines Production Institute [2018] eKLR is relied on where the court held that as the issue of the technical responsiveness had not been raised the Respondent could not be faulted for not determining it.
76. The 3rd Interested Party urges that an allegation that the Respondent has ignored relevant material is not a ground for judicial review on the basis of jurisdictional error or otherwise. In support of this position the 3rd Interested Party relies on the case of Republic v Public Procurement Administrative Board & 2 others Ex parte Pelt Security Services Limited[2018] eKLR.
77. On the issue of the NEMA certificate it is submitted that the same is a mere complaint of a party who alleges that the Tribunal has allegedly erred in evaluating evidence before it. According to the 3rd Interested Party the same cannot form a proper ground for Judicial Review.
Analysis and Determination
Issues for Determination
i. Whether the 3rd Interested Party unlawfully accessed confidential information during the procurement process, and if so, whether this breach undermines the fairness, transparency, and accountability of the process, warranting legal consequences?
ii. Whether the Respondent failed to properly interpret and apply the provisions of sections 79, 80, 83, and 84 of the Act?
iii. Whether the Respondent exceeded its jurisdiction under section 173 of the Act?
iv. Whether the Respondent's decision was irrational and unreasonable within the Wednesbury test of unreasonableness and whether it acted unreasonably by accepting an invalid NEMA certificate?
v. Whether the Respondent acted ultra vires the Act?
vi. Who shall bear the costs?
Whether the 3rd Interested Party unlawfully accessed confidential information during the procurement process, and if so, whether this breach undermines the fairness, transparency, and accountability of the process, warranting legal consequences?
78. The Ex parte Applicant argues that the 3rd Interested Party unlawfully accessed confidential information related to the procurement process. It contends that access to confidential information is prohibited under Section 6 of the Act and that breaching this provision can lead to penalties, including debarment of the tenderer. It further submits that the breach of confidentiality not only constitutes an illegality but also undermines the fairness, transparency, and accountability of the procurement process. The Applicant’s case is that the Respondent had a duty to address the issue of the 3rd Interested Party’s access to confidential information, as raised by the 1st and 2nd Interested Parties.
79. In response the Respondent submits that it noted that no party, including the Ex parte Applicant, raised concerns about unauthorized access to confidential information related to the tender. It also states that it properly exercised its powers and was not required to address issues not raised by any of the parties before it.
80. According to the 3rd Interested Party the Ex parte Applicant never raised the issue of access to confidential information in its response or submissions.
81. The Court has had an opportunity to examine the averments at paragraphs 4 & 6 of the 3rd Interested Party and nothing in the averments proves that the 3rd Interested Party had access to confidential information held by the procuring entity.
Whether the Respondent failed to properly interpret and apply the provisions of sections 79, 80, 83, and 84 of the Act?
82. The Ex parte Applicant argues that the Respondent's decision was irrational, unreasonable, and violated its legitimate expectation by incorrectly interpreting the above sections of the Act.
83. Section 79 states;
“79. Responsiveness of tenders
(1)A tender is responsive if it conforms to all the eligibility and other mandatory requirements in the tender documents.
(2)A responsive tender shall not be affected by—
(a)minor deviations that do not materially depart from the requirements set out in the tender documents; or
(b)errors or oversights that can be corrected without affecting the substance of the tender.
(3)A deviation described in subsection (2)(a) shall—
(a)be quantified to the extent possible; and
(b)be taken into account in the evaluation and comparison of tenders.
76. Section 80 provides;
“80. Evaluation of tenders
(1)The evaluation committee appointed by the accounting officer pursuant to section 46 of this Act, shall evaluate and compare the responsive tenders other than tenders rejected.
(2)The evaluation and comparison shall be done using the procedures and criteria set out in the tender documents and, in the tender for professional services, shall have regard to the provisions of this Act and statutory instruments issued by the relevant professional associations regarding regulation of fees chargeable for services rendered.
(3)The following requirements shall apply with respect to the procedures and criteria referred to in subsection (2)—
(a)the criteria shall, to the extent possible, be objective and quantifiable;
(b)each criterion shall be expressed so that it is applied, in accordance with the procedures, taking into consideration price, quality, time and service for the purpose of evaluation; and
(4)The evaluation committee shall prepare an evaluation report containing a summary of the evaluation and comparison of tenders and shall submit the report to the person responsible for procurement for his or her review and recommendation.
(5)The person responsible for procurement shall, upon receipt of the evaluation report prepared under subsection (4), submit such report to the accounting officer for approval as may be prescribed in regulations.
(6)The evaluation shall be carried out within a maximum period of thirty days.
(7)The evaluation report shall be signed by each member of evaluation committee.
77. Section 83 provides for Post-qualification as follows;
83. Post-qualification
An evaluation committee may, after tender evaluation, but prior to the award of the tender, conduct due diligence and present the report in writing to confirm and verify the qualifications of the tenderer who submitted the lowest evaluated responsive tender to be awarded the contract in accordance with this Act.
(2)The conduct of due diligence under subsection (1) may include obtaining confidential references from persons with whom the tenderer has had prior engagement.
(3)To acknowledge that the report is a true reflection of the proceedings held, each member who was part of the due diligence by the evaluation committee shall—
(a)initial each page of the report; and
(b)append his or her signature as well as their full name and designation.
78. Section 84 provides as follows;
“84. Professional opinion
(1)The head of procurement function of a procuring entity shall, alongside the report to the evaluation committee as secretariat comments, review the tender evaluation report and provide a signed professional opinion to the accounting officer on the procurement or asset disposal proceedings.
(2)The professional opinion under sub-section (1) may provide guidance on the procurement proceeding in the event of dissenting opinions between tender evaluation and award recommendations.
(3)In making a decision to award a tender, the accounting officer shall take into account the views of the head of procurement in the signed professional opinion referred to in subsection (1).
79. In response the Respondent urges that it acted within its authority under Section 173 of the Act, which allows it to rule on the nullity of actions by the Procuring Entity and provide directions regarding procurement proceedings. The Respondent claims it properly interpreted the law and affirms that no misapplication of the law occurred. The Respondent emphasizes its power to annul actions taken by the Procuring Entity under Section 173(1)(a).
80. Section 173 states as follows;
173. Powers of Review Board
Upon completing a review, the Review Board may do any one or more of the following—
(a)annul anything the accounting officer of a procuring entity has done in the procurement proceedings, including annulling the procurement or disposal proceedings in their entirety;
(b)give directions to the accounting officer of a procuring entity with respect to anything to be done or redone in the procurement or disposal proceedings;
(c)substitute the decision of the Review Board for any decision of the accounting officer of a procuring entity in the procurement or disposal proceedings;
(d)order the payment of costs as between parties to the review in accordance with the scale as prescribed; and
(e)order termination of the procurement process and commencement of a new procurement process.
81. Based on the powers granted to the Respondent under Section 173 of the Act, the Respondent has the authority to annul procurement decisions and provide directions for the proper continuation of the process. As no compelling evidence has been adduced before this court that the Respondent acted irrationally of unlawfully or that it misapplied the law in a way that violated the Ex parte Applicant’s rights, the Respondent’s actions were within its legal scope.
Whether the Respondent exceeded its jurisdiction under section 173 of the Act?
82. The Ex parte Applicant contends that the Respondent acted outside its jurisdiction by making a determination based on the 2nd Evaluation Report, which the Respondent had earlier declared a nullity. The Ex parte Applicant also contends that the Respondent failed to consider alternatives, such as clarifying discrepancies or disbanding the Evaluation Committee.
83. In rebuttal the Respondent argues that Section 173 grants it broad authority to annul and review procurement decisions, including commenting on a nullified report. It also argues that the Ex parte Applicant cannot dictate the options available to the Respondent.
84. The 1st and 2nd Interested Parties argue that Section 173 does not grant the Respondent the power to seek clarifications from the Evaluation Committee or to disband it. Further, that no party raised these issues during the review proceedings. They also argue that the Ex parte Applicant cannot dictate the available options to the Respondent and that Respondent was not required to pursue the specific options mentioned by the Ex parte Applicant since they were not raised as contentious issues during the proceedings.
85. This Court is in agreement with the Respondent. Section 173 does give the Respondent the authority to review and annul actions taken by the Procuring Entity. The Respondent’s actions to annul the 2nd Evaluation Report and direct the continuation of the procurement process are within the scope of its powers. Furthermore, the Respondent correctly points out that it cannot be expected to follow suggestions for remedies that were not raised by any of the parties.
Whether the Respondent's decision was irrational and unreasonable within the Wednesbury test of unreasonableness and whether it acted unreasonably by accepting an invalid NEMA certificate?
86. The Ex parte Applicant argues that the Respondent’s decision was unreasonable and irrational, particularly with respect to the NEMA certificate issue and failure to consider other remedies. It is its case that the 3rd Interested Party submitted an invalid NEMA certificate for cleaning services, which was issued to a different entity ("Lukeparm Cleaners Ltd.") instead of the 3rd Interested Party ("Lakeparm Cleaners Ltd.").
87. In response the Respondent argues that it followed proper procedures and gave all parties a fair hearing. It asserts that its decision was rational and based on a thorough review of the evidence. It denies that the NEMA certificate was invalid. It explains that the discrepancy in the name ("Lukeparm" instead of "Lakeparm") was a typographical error. Furthermore, the Respondent argues that the Ex parte Applicant failed to provide evidence of a separate entity named "Lukeparm Cleaners Ltd”.
88. Unreasonableness was defined by the Court in the case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 as follows;
“By “irrationality” I mean what can by now be succinctly referred to as “Wednesbury unreasonableness” (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. “Irrationality” by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.”
89. In light of the above excerpt and upon examining the record I note that there is no indication of irrationality in the Respondent’s decision-making. It is clear that it reviewed all the relevant materials and followed due process, including giving all parties the chance to present their case.
90. The Ex parte Applicant has not presented any concrete evidence to suggest that the certificate was invalid or that it was issued to a different entity. The Respondent has provided a reasonable explanation for the typographical error, and there is no indication that the certificate was fraudulent or invalid.
91. This issue of the NEMA certificate seems to be a red herring. The Respondent's explanation that it was a typographical error is reasonable, and there is no compelling evidence to suggest that the certificate was invalid.
Whether the Respondent acted ultra vires the Act?
92. The Ex parte Applicant argues that the Respondent acted ultra vires by making decisions on a report that had already been declared a nullity and issuing directions based on that report.
93. In response the Respondent asserts that it acted within its lawful authority, particularly under Section 173 of the Act, which allows it to annul actions and issue directions. The Respondent claims that its actions were not ultra vires.
94. As noted earlier by this Court, Section 173 grants the Respondent substantial powers to annul and review procurement decisions. There is no evidence to suggest that the Respondent acted outside its jurisdiction or beyond its powers.
95. In light of the foregoing this Court is in agreement with the Respondent’s position that it acted within its legal powers and jurisdiction. I note that the Ex parte Applicant's arguments do not present sufficient grounds for overturning the Respondent’s decision, as the claims regarding the interpretation of the law, unreasonableness, ultra vires actions, and NEMA certificate are either unfounded or were adequately addressed by the Respondent.
96. There is no indication that the Respondent violated any legal principles, including fairness, transparency, or the right to a fair hearing. The Ex parte Applicant has not demonstrated that the Respondent’s decision was irrational, unreasonable, or illegal.
97. It is trite as was held by the Court in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR costs follow the event.
Order;
For the above reasons the application dated 12th October 2024 is dismissed with costs to the Respondent and Interested Parties. It is so ordered.