https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6698

Republic v Public Procurement Administrative Review Board; Kalmar Finland Oy & 2 others (Interested Parties); Accounting Officer, Kenya Ports Authority & another (Ex parte Applicants) (Application E009 of 2026) [2026] KEHC 6698 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 6698 (KLR) Republic of Kenya In the High Court at Mombasa Application E009 of 2026 J Ngaah, J May 15, 2026 Between Republic Applicant and Public Procurement Administrative Review Board Respondent and Kalmar Finland Oy Interested Party Mol Cy Nv Interested Party Wood Creek Limited Interested Party and Accounting Officer, Kenya Ports Authority Ex parte Applicant Kenya Ports Authority Ex parte Applicant Judgment 1.The application before court is a motion dated 2 April 2026 in which the applicants seek a judicial review relief of certiorari to quash the respondent’s decision dated 21 March 2026, in Request for Review Application No. 32 of 2026. To be precise, the prayer for this relief is couched as follows:“ 1.This Honourable Court be pleased to grant the Judicial Review order of Certiorari to bring into this Honourable Court for purposes of quashing the decision of the Public Procurement Administrative Review Board dated 21.03.2026 in Request for Review Application No. 32 of 2026 in respect of the Tender No. KPN036/2025-26/ES for Supply, Testing and Commissioning of Terminal Tractors”. 2.The motion is expressed to be brought under section 175 of the Public Procurement and Asset Disposal Act, 2015 (also referred to hereinafter as simply “the Act”);Section 8(2) of the Law Reform Act Cap 26; and, Order 53 Rule 1, 2, 3 and 4 of the Civil Procedure Rules. 3.The motion is based on a statutory statement dated 1 April 2026 and an affidavit sworn by Eveline I. Shigoli, verifying that facts relied upon in the statement. Shigoli has introduced herself in the affidavit as the General Manager, Supply Chain Management Department at Kenya Ports Authority (hereinafter “the procuring entity”). By virtue of the position she holds, Shigoli is the 2nd Applicant's head of procurement and, thus, competent to swear the affidavit. 4.Shigoli has sworn that by letters referenced PSM/CTC/1/01 (036) Vol.I dated 24 December 2024, the 2nd Applicant invited four approved Original Equipment Manufacturers (OEM) firms, to submit their bids for participation in a tender, more particularly described as “Tender No. KPN036/2025-26/ES -Supply, Testing and Commissioning of Terminal Tractors” (hereinafter “the subject tender”). Thus, the tendering method adopted in the subject tender was that of restricted tendering. The invited bidders are the interested parties in these proceedings and a company called M/s Ternerb Beschop B.V. 5.The subject tender was opened on 20 January 2026 at 10:30 hours at the 2nd Applicant's procurement conference room and details of the tender opening were recorded in the official opening minutes. 6.Pursuant to Section 46 of the Public Procurement and Asset Disposal Act, the 2nd Applicant appointed a tender evaluation committee to evaluate the bids. The evaluation was undertaken in three stages in accordance with the tender document, thus:a)Preliminary Evaluation - to confirm compliance with all mandatory requirements as outlined in Section Ill (2.2) of the tender document.b)Technical evaluation: To confirm full compliance with technical specifications on a “yes” or “no” basis as outlined in Section III (2.3) of the tender document.c)Price Evaluation - Carried out in line with Section III (2.4) of the tender document to review the firm's quoted price as presented in the price schedule of both LOT 1 and LOT 2 and to recommend award to the lowest evaluated bidder per Lot at CIF (Cost Insurance & Freight) for manufacturer and DPP (Duty Delivery Paid) for local agents. 7.As far as the 1st interested party’s bid is concerned, the tender evaluation committee made the following observations:a.The bidder did not submit a valid quality certificate for the manufacturing company stating clearly that their systems are certified for design and manufacturing processes as required. The bidder attached one certificate No. 10637448 for ISO 9001:2015 standard certifying that the management system of Kalmar Finland OY was for the scope 'sales of material handling equipment, spare parts and other solutions'. The bidder also attached a second certificate No.10618883 for three standards - ISO 9001:2015, 1S0 14001:2015, and ISO 45001:2018 certifying that the management system of Kalmar Industries (China) Co. Ltd. was for the scope of 'assembly of machinery and load handling equipment'.b)The bidder did not provide a current Tax Compliance Certificatec)The Tender Information Form was not duly completed as the bidder did not include beneficial ownership. Further, the bidder listed particulars of M/s Power Parts (K) ltd as the Tender's authorized representative in the Tender Information Form whereas the Power of Attorney provided indicated that Mr. Jinesh Manian was appointed as the true and lawful attorney, with full power and authority to sign and execute the subject tender for and on behalf of the 1st interested party.d)The bidder did not provide a separate signed and stamped schedule of deviations by the manufacturer, as required for the areas on Table III, which had deviations from the tender specifications provided in the tender document under Section Ill (2.2(5.xiv)). 8.Consequently, pursuant to Section 87(3) of the Act and Regulation 82 of the Public Procurement and Asset Disposal Regulations, 2020 (“the regulations”), the 1st interested party was, on 13 February 2026, notified that its bid was unsuccessful; the notification also disclosed the successful bidders and the tender prices. 9.On 27 February 2026, the 1st Interested Party filed a Request for Review No. 32 of 2026 before the Respondent seeking several orders, including the order to nullify the notification of award vide letters dated 13 February 2026 and for readmission of its bid for technical and financial evaluation, an exercise that would, in part, involve comparison of the 1st interested party’s tender with that of other bidders whose bids turned out to be substantially responsive because they complied with the mandatory requirements in the tender document. 10.On Saturday, 21 March 2026, the respondent delivered a decision in the 1st interested party’s application and transmitted the decision to the parties by way of an email dated 22 March 2026. According to the impugned decision, the respondent nullified and set aside the letters of Notification and Intention of Award dated 13 February 2026 issued by the Procuring Entity to the successful bidders in respect of the subject tender. 11.The respondent further directed the Applicants to reinstate the 1st Interested Party's tender in the tender process and evaluate it from the technical evaluation stage, together with all other tenders that were responsive at the preliminary evaluation stage, and proceed with the tender to its logical and lawful conclusion, within 21 days from the date of the respondent’s decision. 12.Being dissatisfied with the respondent’s decision, the applicants lodged the instant judicial review application. In taking this course, the applicants have exercised their right under section 175 (1) of the Act which provides, inter alia, that a person aggrieved by a decision made by the Review Board may seek judicial review by this Honourable Court within fourteen days from the date of the date of the decision. 13.According to Shigoli, the Respondent deviated from the intention of the procuring entity which was represented in the terms and conditions of the tender. To begin with, the tender document mandatorily required that the Tax Compliance Certificate or its equivalent needed to be valid or current. It was not in dispute that the equivalent of the Tax Compliance Certificate submitted by the 1st Interested Party was undated. The applicant’s position is that, in these circumstances, the validity and currency of the “Certificate of Paid Taxes” submitted by the 1st Interested Party (as the equivalent of a valid or current Tax Compliance Certificate issued by the Kenya Revenue Authority) could not be ascertained on its face. 14.The respondent is faulted to have deliberately ignored and failed to interpret the meaning of the word “equivalent” used in the Tender Document, thus, occasioning an irrational decision. 15.It is also deposed in support of the applicants’ application that it is a universally accepted principle of public procurement that bids which do not meet all the minimum mandatory requirements stipulated in a bid document are to be regarded as non-responsive and rejected without further consideration, a principle that the respondent is alleged to have disregarded. 16.Further, there was a serious misdirection on the part of the respondent as it deviated from the intention contained in the terms and conditions of the tender document by ignoring an express mandatory requirement under Section Ill Clause 2.2 (v) - of the Tender Document, which clearly required the bid to contain a valid quality certificate for the manufacturing company stating clearly that their (bidder or bidders) systems were certified for design and manufacturing processes, that is, ISO certification or equivalent. The respondent is alleged to have acted ultra vires by assuming a role extraneous to its mandate, when it construed that the primary duty for the terminal tractors was 'material and load handling at the port' which interpretation had the effect of rewriting the Tender Document which, contrary to the respondent’s interpretation, expressly provided for certification for 'design and manufacturing processes', thereby occasioning an illegality. 17.It is sworn on behalf of the applicants that the Respondent took what, in the applicant’s view, an irrational position that the equivalent of a valid or current Tax Compliance Certificate and the scope of ISO Certification, which were mandatory tender requirements could only be ascertained at due diligence stage, yet the documents submitted by the 1st Interested Party were evidently non-compliant at face value during the preliminary evaluation stage. 18.The respondent is also said to have acted ultra vires when it assumed a role extraneous to its mandate and ended up rewriting the Tender Document when it presumed that the scope of the management systems supplied by the 1st Interested Party was broad and encompassed the requirement of design and manufacturing, yet the scope on the Certificates submitted by the 1st Interested Party clearly stated that their systems were certified for other roles than 'Design and Manufacturing' that was mandatorily required in the Tender Document. The respondent’s decision of misinterpreting and equating 'assembly of port machinery and load handling equipment' to 'design and manufacturing' is contended to be irrational and illegal. 19.By ignoring the mandatory tender requirement that the bids were to contain a valid quality certificate for the manufacturing company stating clearly that their systems were certified for design and manufacturing processes, i.e. ISO certification or equivalent, the respondent acted arbitrarily and went against the express mandatory requirements of the tender document. According to the applicant’s, the respondent assumed the role of the evaluation committee of the procuring entity, thus, rendering its decision irrational and unlawful. 20.On the question of Beneficial Ownership, the respondent acknowledged that indeed the 1st Interested Party's Tenderer Information Form appearing at Page 34 of its Bid was not fully completed despite being a mandatory requirement. The 1st Interested Party admitted that it did not comply with this mandatory requirement of disclosing its beneficial owners as it was its opinion that the said information would be provided through the Beneficial Ownership Disclosure Form after the “notification of award”. 21.Despite the 1st Interested Party's admission of non-compliance with this mandatory requirement, the respondent went on an extraneous mission of justifying why its bid was responsive, when reasons for the justification were not even pleaded by the 1st Interested Party or at all. 22.The respondent observed that Form 6 of the Tender Document made a mention of beneficial ownership but provided no details of the nature of information required and further, that no space on the Form to fill in the information was provided. This was contrary to the evidence available because Form 8 contained detailed information on the nature of information on beneficial ownership and spaces to be filled. In any event, the respondent failed to take into account the fact that in case of any ambiguity on mandatory requirements, the 1st Interested Party or any other bidder ought to have sought clarification from the Procuring Entity before proceeding to participate in the tendering process and that in the absence of any complaint or inquiry, it was assumed that the available information was clear to the bidders. 23.The respondent’s finding that there was 'no detail on the nature of information required on beneficial ownership' to justify the 1st Interested Party's non-compliance pointed to an arbitrary and illegal action by the Review Board which went against the express requirements of the tender document. 24.The respondent is alleged to have assumed the role of the evaluation committee of the Procuring Entity by hypothesizing that “Besides, the information on the beneficial ownership entails details in relation to contract awards required upon issuance of notification of award to the successful in the tenderer at the contract stage” thus deviating from the intention contained in the terms and conditions of the tender documents, specifically Form 6 and consequently making its findings irrational. 25.On the requirement for a Schedule of Deviations, the respondent appreciated that under Clause 2.2 (xiv) of the Tender Document, each bidder was mandatorily required to provide a separate schedule of deviations in the case of deviations in the specifications submitted by the bidder from the specifications in the tender document. The respondent also appreciated that the 1st Interested Party acknowledged non-compliance but justified its failure to submit a separate schedule of deviations by contending that no schedule of deviations was required because its bid 'largely’ complied with or exceeded the specifications in the Tender Document. 26.In so finding, the respondent totally ignored the mandatory clear contents and requirements of Section Ill Clause 2.2 (5. xiv) of the Tender Document; it instead examined the 1st Interested Party's tender and observed that their specifications were largely in accordance with the Procuring Entity's required specifications. The respondent reached an irrational decision that the 1st interested party need to have submitted a separate schedule of deviations as required in the Tender Document. 27.Section Ill Clause 2.2 (5. xiv) of the Tender Document, mandatorily required the bid submission to contain the Tenderer's Technical specifications and drawings in form of a clause-by-clause commentary on the Procuring Entity's Technical Specifications demonstrating substantial responsiveness of the Equipment to those specifications, or a statement of deviations and exceptions to the provisions of the Technical Specifications. The mandatory requirement specified that in the case of deviations from the tender specifications given, a separate schedule of deviations was to be prepared accompanied by an account explaining how the departure from the technical specifications of the tender affected the "'Terminal Tractors performance, durability and overall dimensions and why the tenderer will choose to offer the Terminal Tractors with the stated deviation as opposed to complying with the technical specifications given by the procuring entity. 28.The Tender Document also made it mandatory that this separate schedule of deviations be signed and stamped by the manufacturer. Despite the admission of non-compliance by the 1st Interested Party, the respondent acted arbitrarily and went against the express mandatory requirements of the tender document by finding that the 1st Interested Party's specifications were largely in accordance with the Procuring Entity's required specifications. 29.The respondent did not define what it meant by the term 'largely' and, in the process, it ended up assuming the role of the evaluation committee by evaluating and deeming the 1st Interested Party's Bid as responsive based on a parameter alien to the mandatory tender requirements. Yet, according to the standards prescribed in the tender document, the 1st Interested Party's bid could not have possibly progressed beyond the preliminary evaluation Stage. 30.It is the Applicant’s position that the use of the statement “largely in accordance with the Procuring Entity's required specifications” does not mean full compliance was achieved particularly for mandatory requirements in tender proceedings but confirmed some deficiencies or gaps existed in the 1st Interested Party's bid, gaps which the respondent ignored, rendering its decision what the applicants have described as “an oxymoron”. 31.It is the applicants’ case that the end result of all these infractions is that the respondent illegally and irrationally rewrote the Tender Document to suit the 1st Interested Party’s bid. By directing an otherwise non-responsive bid to be reinstated and evaluated from the technical evaluation stage, the respondent is alleged to have legitimised a haphazard procurement process which condones, overlooks and justifies bending of express Tender Requirements in order to accommodate tenders, such as the 1st interested party’s tender, that fail to meet all mandatory requirements of the Tender Document. 32.According to the applicants, the respondent failed to exercise its mandate to ensure transparent, reasonable, accountable and fair process in respect of the criteria utilized in preliminary mandatory evaluation of the Tender. 33.For all that the applicants have stated in the statutory statement and the affidavit verifying the facts relied upon, the respondent’s decision is impugned on the judicial review grounds of illegality and irrationality. 34.The respondent did not file any response to the application but the 1st and 2nd interested parties did. 35.The 1st interested party filed a replying affidavit sworn by Vishal Soni who has sworn that he has been authorised by the 1st interested party to swear the affidavit although the capacity in which he has been authorised to swear the affidavit has not been disclosed. 36.According to the 1st interested party, the Applicants have neither pleaded nor can they demonstrate any legally protected interest of which they have been wrongfully deprived by the Respondent’s decision. The 1st interested party understands the respondent’s decision to have done no more than direct the 2ⁿᵈ Applicant to comply with the express mandatory requirements of its own Tender Document and with the provisions of the Act. 37.The 1st interested party has defended the respondent’s decision as having been reached in accordance with sections 167, 173 and 175 of the Act. Contrary to the applicants’ contentions, it is sworn on behalf of the 1st interested party that it is the applicants who applied the criteria outside the requirements set forth in the tender document contrary to section 80(2) of the Act. 38.As far as the question on the “Valid Quality Certificate for Design and Manufacturing Processes” is concerned, it has been sworn that Section III, Clause 2.2(v) of the Tender Document expressly provided for "ISO certification or equivalent". The 1st Interested Party submitted ISO 9001:2015 certification issued to Kalmar Finland Oy (approved by LRQA under ISO 9001-00031114) and a further ISO Certification issued to Kalmar Industries (China) Co. Ltd in respect of port machinery and load handling equipment. The respondent is said to have correctly found, that the scope of the management systems so certified was broad and encompassed the requirement of design and manufacturing as stated in the Tender Document, and that the sufficiency of such certification could not, in any event, be demonstrated at the preliminary evaluation stage. According to the 1st interested party, the appropriate stage for such confirmation was the due diligence stage contemplated by Section 83 of the Act and Clause 37 on the information to tenderers (ITT) of the tender document. 39.As to the Tax Compliance Certificate, Soni has sworn that ITT Clause 3.14 and Clause 7.3 of the General Conditions, applied only to "a Kenyan tenderer" or "the Tenderer, if a Kenyan firm". The 1ˢᵗ Interested Party is a Finnish company and thus the applicable mandatory provision was Section III, Clause 2.2(ii)(b) which required a "Valid or Current Tax Compliance Certificate or equivalent". In compliance with this requirement, the 1st Interested Party duly furnished a Certificate of Paid Taxes No. L0425442403 issued by the Finnish Tax Administration certifying that "the taxpayer has paid all their taxes, charges and other debts to the Tax Administrator as well as filed the required tax-related reports in the past 12 months". On the basis of this evidence, the Respondent is said to have correctly held, that Kenyan administrative systems and procedures are not applicable beyondKenyan borders and that the proper course for ascertaining the currency of the Finnish certificate was during due diligence exercise under Section 83 of the Act. 40.On the question of Tenderer Information Form (on Beneficial Ownership), it is sworn on behalf of the 1st interested party that the Respondent correctly observed that whereas Form No. 6 made mention of beneficial ownership, no detail of the nature of the information required was provided on that Form, while Form No. 8 (Beneficial Ownership Disclosure Form) is, by its own terms and by design, a post-award requirement. The 1st Interested Party duly completed Form No. 6 at page 34 of its bid. According to the 1st interested party, holding a bidder to account, at the pre-award stage, for a disclosure contemplated for the post-award stage is itself the application of a criterion outside the Tender Document contrary to Section 80(2) of the Act. 41.Regarding the question of the Power of Attorney and Authorised Representative, it has been sworn on behalf of the 1st interested party that Section III, Clause 5 of the Tender Document clearly distinguishes between a duly authorised representative of a firm and any other officer appointed and evidenced by a Power of Attorney. The 1st Interested Party's designation of M/s Power Parts (Kenya) Limited as its local authorised representative, and of Mr. Jinesh Manian as the holder of Power of Attorney, was not contradictory and was correctly so held by the Respondent in its decision. 42.As for the Schedule of Deviations, it has been sworn that Section III, Clause 2.2(xiv) of the Tender Document required a schedule of deviations only "in the case of deviations from the specifications". The 1st Interested Party's bid substantially complied with, and in material respects exceeded, the Procuring Entity's specifications, and on that basis, no schedule deviations was required. The Respondent Board so found in its decision. 43.It is further contended that the Respondent correctly invoked the contra proferentum rule holding that the Tender Document, having been drafted by the 2ⁿᵈ Applicant, must be construed against its drafter to the extent of any ambiguity in the phrases "or equivalent" and "preferably". 44.The 1st respondent has urged that the court should not exercise its discretion in favour of the applicants because, amongst other reasons, the application is said to be a strategy to circumvent the 2ⁿᵈ Applicant's statutory obligation of complying with the lawful orders of the respondent and that the public interest lies in favour of a procurement outcome that is cost-effective within the meaning of Article 227(1) of the Constitution, and not in sustaining an award to higher-priced bidders. 45.Soni has also sworn that the Application is intended to delay the conclusion of the subject procurement to the detriment of the public interest in the timely supply, testing and commissioning of the Terminal Tractors for the port of Mombasa. 46.Besides the replying affidavit, the 1st interested party also filed a preliminary objection in which it is pleaded that the Applicants have neither pleaded nor demonstrated that they are “persons aggrieved” by the impugned respondent’s decision as required under section 175(1) of the Act; and, that the Applicants lack the requisite locus standi to commence and continue the judicial review proceedings. It is also contended that this Honourable Court lacks jurisdiction to conduct merit review of the decision of the respondent. 47.Eunice J. Songok swore a replying affidavit on behalf of the 2nd interested party which is a limited liability company incorporated in Belgium, with a target of designing, manufacturing, supplying and commissioning terminal tractors and related port handling equipment for the benefit of port operators, terminal handling companies and logistics stakeholders across the globe, including Kenya. 48.Songok has reiterated, more or less, the depositions of Shigoli in the affidavit sworn in support of the application and the 2nd interested party is as much aggrieved by the respondent’s decision as the applicants. As a matter of fact, it has filed its own application against the decision in this Honourable Court in Judicial Review application No. E010 of 2026 in which similar depositions have been made in impugning the decision of the respondent. 49.The parties’ respective submissions in support of and in opposition to the applicants’ application have to, a greater degree, rehashed the depositions made in their pleadings and affidavits. 50.A preliminary issue that has been raised by the 1st interested party and which this Honourable Court has to determine in limine is whether the applicants have the necessary locus to institute these proceedings. Section 175 (1) of the Act states that a person aggrieved by a decision of the Review Board may seek move this Honourable Court for judicial review of the decision. The section reads as follows:175.Right to judicial review to procurement(1)A person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board's decision, failure to which the decision of the Review Board shall be final and binding to both parties. 51.The “decision” to which reference has been made is, no doubt, a decision on an application for review made before the Review Board under section 167 (1). According to this provision of the law, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity either by Public Procurement and Asset Disposal Act or the regulations made thereunder, is entitled to seek administrative review within a prescribed time of the occurrence of the breach or upon notification of the award. 52.In the applicants’ case, a request review was made by the 1st interested party upon notification of the award of the subject tender. The two applicants were named as the respondents in the request for review although section 170 of the Act says that, for purposes of impeaching the decision of the procuring entity or seeking redress for any loss or damage that a candidate or a tenderer may have suffered or been exposed to, the accounting officer of the procuring entity is the proper respondent. This section reads as follows:170.Parties to reviewThe parties to a review shall be—(a)the person who requested the review;(b)the accounting officer of a procuring entity;(c)the tenderer notified as successful by the procuring entity; and(d)such other persons as the Review Board may determine.(Emphasis added) 53.The Review Board must have entertained the procuring entity as a party to the request for review under section 170 (c) which gives it the discretion to determine whether any other party besides those listed in section 170 (a) to (c) can be included in the request for review as a party. 54.It follows that if the “person” to whom section 175 (1) refers as the person who may lodge a judicial review application against the decision of the Review Board is the person who was a party to the request for review proceedings and, is aggrieved by the decision of the Review Board, there should be no question that the applicants have the requisite locus to institute this suit. They were parties to the request for review proceedings and, no doubt, they have instituted this suit because they are aggrieved by the decision of the Review Board. 55.The short answer to the 1st interested party, therefore, is that the applicants have not only the locus standi to seek for judicial review reliefs but also this Honourable Court has the requisite jurisdiction under section 175(1) of the Act to entertain the dispute. 56.Turning to the merits of the applicants’ application, I note from the statutory statement that the respondent’s decision is impugned on the judicial review grounds of illegality and irrationality. These grounds were defined by Lord Diplock in the English case of Council of Civil Service Unions versus Minister for the Civil Service (1985) A.C. 374,410 as two of the three traditional grounds of judicial review. In that case, Lord Diplock set out the three heads which he described as “the grounds upon which administrative action is subject to control by judicial review”. These grounds are illegality, irrationality and procedural impropriety. While discussing susceptibility of administrative actions to judicial review and, in the process defining these grounds, the learned judge stated as follows:“My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call “illegality,” the second “irrationality” and the third “procedural impropriety.” That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of “proportionality” which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.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.I have described the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.” 57.These grounds of illegality, irrationality and procedural impropriety are ordinarily regarded as the traditional grounds for judicial review. In exercise of its discretion, a judicial review court will intervene and may grant the remedy for judicial review if any of them is proved to exist. But as Lord Diplock suggested, the list is by no means exhaustive. The learned judge hastened to say that further development of this area of law may yield further grounds on a case by case basis. It is in this spirit, the learned judge suggested, that the principle of proportionality as a further ground for judicial review has been developed. According to the Court of Appeal in Suchan Investment Limited versus Ministry of National Heritage & Culture & 3 Others (2016) Eklr, this principle was first adopted in R versus Home Secretary; ex parte, Daly (2001) 2 AC 532. 58.The applicants, as noted, are only concerned about the grounds of illegality and irrationality. Speaking of illegality, the question is whether the respondent acted in excess of jurisdiction and, in particular, whether its decision is ultra vires the express provisions of the Public Procurement and Asset Disposal Act and the regulations made thereunder. 59.The applicants’ grievances which form the basis of this particular ground stem from the fact that despite the 1st interested party’s bid falling short of what was expressly prescribed in the tender document as mandatory requirements for a responsive tender, the respondent determined the bid to have met the threshold ostensibly because, in the respondent’s view, the omissions in the bid were negligible and that the 1st interested party either met or “largely” met the mandatory conditions. 60.The concept of mandatory requirements appears to be rooted in section 60 (1) and (2) as read with section 70(6) of the Act; section 60(1) and (2) of the of the Act states as follows:60.Specific requirements(1)An accounting officer of a procuring entity shall prepare specific requirements relating to the goods, works or services being procured that are clear, that give a correct and complete description of what is to be procured and that allow for fair and open competition among those who may wish to participate in the procurement proceedings.(2)The specific requirements shall include all the procuring entity's technical requirements with respect to the goods, works or services being procured. 61.As far as specific technical requirements are concerned, subsection (3) provides finer details of what they entail; its states:(3)The technical requirements shall, where appropriate—(a)conform to design, specification, functionality and performance;(b)be based on national or international standards whichever is superior;(c)factor in the life of the item;(d)factor in the socio-economic impact of the item;(e)be environment-friendly;(f)factor in the cost disposing the item; and(g)factor in the cost of servicing and maintaining the item. 62.In subsection (4) (a) and (b), the accounting officer is cautioned against making reference to any particular trademark, name, patent, design, type, producer or service provider or to a specific origin in the technical requirements unless there is no other sufficiently precise or intelligible way of describing the requirements; and, the requirements allow equivalents to what is referred to.Section 70 (6), on the other hand, reads as follows:70 (6)The tender documents shall set out the following—(a)the specific requirements prepared under section 60 relating to the goods, works or services being procured and the time limit for delivery or completion. 63.As the consumer of the goods or services for which a tender has been floated, the procuring entity stands in a better position to set the basic minimum standards required of the goods or services and the qualifications of the tenderers bidding to deliver the goods or services tendered for. 64.It is for this reason that under section 79 of the Act, a tender is considered responsive only if it meets eligibility requirements under section 55 of the Act and mandatory requirements specified in the tender documents. Except in those limited circumstances which the Act considers as “minor deviations that do not materially depart from the requirements set out in the tender documents; or errors or oversights that can be corrected without affecting the substance of the tender”, mandatory requirements are not negotiable. 65.For the avoidance of doubt, the procuring entity is prohibited from accepting any tender that falls short of the mandatory requirement. This is provided for under Regulation 75(1) of the Public Procurement and Asset Disposal Regulations, 2020 which is express that:A procuring entity shall reject all tenders, which are not in conformity to the requirements of section 79 of the Act and regulation 74 of these Regulations. 66.Turning back to the subject tender, it is not in dispute that the procuring entity set forth in the tender document mandatory requirements by which all the identified tenderers, including the 1st interested party, were bound. Of particular relevance to this application are four requirements; these are:(a)a valid or current tax compliance certificate or equivalent;(b)a validity quality certificate for the manufacturing company(c)disclosure of beneficial ownership of information on beneficial ownership of the bidder or tenderer(d)Schedule of deviations from the specifications given in the tender document. 67.The requirement for a valid or current tax compliance certificate or its equivalent is found in clause 2.2 of the tender document under the heading “Preliminary examination for Determination of Responsiveness”. According to Clause 2.2(5) (ii) a “Valid/Current Tax Compliance Certificate or equivalent” is singled out as among the mandatory documents which a tenderer for the subject tender ought to have included in his bid submission. 68.In what the 1st interested party thought was compliance with this requirement, it submitted what was described in the impugned decision as a “certificate of paid taxes” issued by the Government of Finland. Nothing much turned on the description given to the certificate as such; the bone of contention is that the certificate was undated and, therefore, as much as it could be embraced as the equivalent of the local Tax Compliance Certificate, it was impossible to determine whether or not it was current, as at the time material to the tender period. 69.In its decision, the respondent appreciated that the 1st interested party was foreign company- it was, in fact a Finnish company and the certificate it presented was issued by the “Finnish Tax Administration.” That notwithstanding, the respondent rightly held that the 1st interested party was not exempted from complying with the mandatory requirement of proof of payment of tax to the Finnish Government. 70.The certificate is said to have read in part as follows:“This is to certify that the taxpayer has paid all their taxes, charges and other debts to the Tax Administrator as well as filed the required tax-related reports in the past 12 months." 71.But as noted, the certificate was not dated and, therefore, it was impossible to tell, on its face, the period or year the words “the past 12 months” referred to. The respondent acknowledged this difficulty but still it was prepared to let the certificate pass notwithstanding this inadequacy. To this end, the respondent held as follows:“It is the Board's humble view that there is only one way to ascertain that the Certificate of Paid Taxes issued by the Finnish Tax Administration to the Applicant meets the threshold of the subject tender is to check with the Finish Tax Authorities. A legal avenue is provided for such fact finding under Section 83 of the Act on due diligence, which provision is also supported by ITT 37 of the tender document.ITT 37 states as follows:"The Procuring Entity shall determine, to its satisfaction, whether the eligible Tenderer that is selected as having submitted the lowest evaluated cost and substantially responsive Tender, meets the qualifying criteria specified in Section III, Evaluation and Qualification Criteria.” 72.Having come to this conclusion, the respondent held, thus:“ 85.Accordingly, the Board is convinced that the Procuring Entity did not have sufficient reason to disallow the Certificate of Paid Taxes submitted by the Applicant in fulfilment of the tender requirement on tax compliance. To that extent, the Board finds that the Procuring Entity applied a criterion outside the tender document.” 73.With due respect to the respondent, due diligence is not an avenue in the procurement process to fill in the gaps or to make up for infractions in an otherwise non-responsive bid; neither is it meant to undercut bids that have made the cut as the lowest evaluated bids. Due diligence is a discretionary exercise undertaken after the evaluation but before the award is made for the purpose of the procuring entity satisfying itself that the successful bid has indeed met all the requirements for a successful bid. The relevant provision in this regard is section 83 of the Act which provides as follows:83.Post-qualification(1)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. 74.Thus, the post-qualification exercise of due diligence is not a second evaluation; rather, it is meant to confirm and verify that whatever information has been provided in support of a successful bid is correct and, at any rate, consistent with the requirements in the tender document. The presumption is that, by the time the award is made, the successful bidder has surmounted all the hurdles leading to the award would be entitled to award of the tender even without due diligence; due diligence being a discretionary exercise. Such cannot be the case where the tender falls short of the requirements, not least, the mandatory requirements at the preliminary qualification stage. 75.It follows that an undated certificate purporting to provide proof that “the taxpayer has paid all their taxes, charges and other debts to the Tax Administrator as well as filed the required tax-related reports in the past 12 months” without any specificity as to which period the “12 months” refers, and whether the alleged “past 12 months” are within the period material to the tender or relevant to the question whether the tenderer is up- to-date in payment of his taxes, could be said to have satisfied the requirement of “a Valid/Current Tax Compliance Certificate or equivalent” for the simple reason that the determination of the validity of the certificate could not be held in abeyance until a successful bid has been determined. 76.The second mandatory documentation required of the bidders and which was in issue in the respondent’s decision was the “Validity quality certificate for the manufacturing company”. This was a requirement under clause 2.2(5)(ii) (b) of the tender document and the particular terms in which this requirement was couched were as follows:“The bid submission shall contain the following documents; clearly marked and arranged in the following order: -ii.Particulars of Tendering Company to include:v.Valid quality certificate for the manufacturing company stating clearly that their systems are certified for design and manufacturing processes i.e. ISO certification or equivalent.” 77.The respondent established that it was not in dispute that the 1st interested party provided quality certificate as ISO 9000:2015 issued to Kalmar Finland Oy and “approved by LRQA” under number ISO 9001- 00031114. The scope of the approval was found to be applicable to “sales of material handling equipment, spare parts and other solutions; on demand and other maintenance services of material handling equipment”. The respondent also noted that a further ISO Certification had been issued to, a subsidiary of the interested party called Kalmar Industries (China) Co. Ltd which was approved for “port machinery and load handling equipment”. 78.The respondent found these certifications to be sufficient to cover the certifications required in the tender document. It deemed the subject tender to be “for procurement of terminal tractors for the port of Mombasa and ICDN” and that “the primary duty for the terminal tractors is material and load handling at the port”. According to the respondent, the certifications provided by the 1st interested party covered these aspects of the subject tender. The respondent further held:“The scope of the management systems supplied by the Applicant, particularly 'the assembly of port machinery and load handling equipment', is broad and encompasses the requirement of design and manufacturing as stated in the tender document.” 79.If there was any doubt on whether the certifications were satisfactory, the respondent noted that such doubt could be discounted at the due diligence stage. To this end, the respondent held, thus:“In any case, the full scope of the quality certification standard may not be appreciated without delving deeply into the data and literature to which the ISO standard applies. Such perusal can only be undertaken during due diligence. For purposes of Clause 2.2 (v) of Section III of the Tender Document a bidder was only required to show availability of the certification, the sufficiency of which cannot be demonstrated at the preliminary evaluation stage.” 80.I have already expressed myself on the purpose that the due diligence exercise serves; needless to reiterate, if any certification is necessary as a mandatory requirement for a responsive tender, the sufficiency of such certification cannot be deferred to the due diligence stage; it must be ascertained at the preliminary evaluation stage before a bidder can progress to the next stage of the procurement process. Due diligence, as earlier noted, is a discretionary exercise; at any rate, it is not intended to be an alternative to the legal obligation for evaluation of tenders to determine, among other things, whether or not they are responsive so that a determination can be made on the success or failure of the procurement process. The responsiveness of a tender cannot be determined at the tail-end of the procurement process. 81.I hold that if the procuring entity was specific that it was mandatory that a tenderer produces a “valid quality certificate for the manufacturing company stating clearly that their systems are certified for design and manufacturing processes i.e. ISO certification or equivalent” it was not open to the respondent to effectively substitute this requirement and find that a certificate of “port machinery and load handling equipment” would satisfy this requirement. 82.Under Clause 6 of the tender document, a tenderer was entitled to seek for clarifications from the procurement entity and, therefore, if, as suggested by the respondent, it was the 1st interested party’s view, that the scope of the management systems supplied by the 1st interested party with respect to 'the assembly of port machinery and load handling equipment', was broad enough to include the requirement of design and manufacturing stated in the tender document, it was free to seek clarification on this particular requirement. Clause reads as follows:6.Clarification of Tendering Document6.1 A Tenderer requiring any clarification of the Tender Document shall contact the Procuring Entity in writing at the Procuring Entity's address specified in the TDS or raise its enquiries during the pre-Tender meeting if provided for in accordance with ITT 6.4. The Procuring Entity will respond in writing to any request for clarification, provided that such request is received no later than the period specified in the TDS prior to the deadline for submission of tenders. The Procuring Entity shall forward copies of its response to all tenderers who have acquired the Tender documents in accordance with ITT 5.3, including a description of the inquiry but without identifying its source. If so specified in the TDS, the Procuring Entity shall also promptly publish its response at the web page identified in the TDS. Should the clarification result in changes to the essential elements of the Tender Documents, the Procuring Entity shall amend the Tender Documents following the procedure under ITT 7. 83.In light of this provision, the 1st interested party could not have proceeded on the assumption that a certificate for “the assembly of port machinery and load handling equipment” was wide in scope as to cover the “certificate for the manufacturing company stating clearly that their systems are certified for design and manufacturing processes” when it could, and ought to have sought clarification from the procuring entity on whether indeed that was the case. 84.The third issue upon which the impugned decision is sought to be impeached on the judicial review grounds of illegality and irrationality is to do with the requirement for information on the beneficial ownership of a tendering company. This requirement was to be filled in what was described as “tender information form” in the tender document. For the record, it was a mandatory requirement that a tenderer discloses the beneficial ownership (of the tendering company) in this form. In particular, the tender document required each bidder to include in its bid an organizational chart showing the Board of Directors and the beneficial owners of the company. 85.When the question of non-disclosure of the relevant information was raised at the hearing before the respondent, the 1st interested party admitted that the information was not provided. According to the 1st respondent’s decision, the 1st interested party’s position was that:“…On its part the Applicant stated that the requirement for disclosure of beneficial ownership was immaterial at this stage of the procurement process when the stipulated Form No. 8 of Section VIII contemplated that such information was to be submitted post-award”. 86.The respondent acknowledged, and indeed established as a fact that the 1st interested party had not complied with this particular requirement. However, the respondent rather faulted the form in which the information sought was to be filled ostensibly for “making no mention of beneficial ownership” and providing “no detail of the nature of information required.” Further, the form is said to have lacked any or sufficient space to accommodate the required information. 87.The respondent further held that the information on the beneficial ownership entailed “details in relation to contract awards required upon issuance of notification of award to the successful in the tenderer at the contract stage”. Despite the fact that the information required was not provided, the respondent still determined the 1st interested party’s bid responsive. 88.If the information on beneficial ownership of any tenderer was necessary and, in fact, a mandatory requirement at the evaluation stage, it was not open to the respondent to interpret the requirement as seeking information that would only be necessary after the issuance of the notification of the award. It would be illogical and, in the language of judicial review, irrational, that information necessary to determine the responsiveness of a tender would be sought after the tender award has been made. Needless to say, an award would ordinarily be made and a notification to that effect issued after a tender has been determined to be responsive and progressed successfully through the rest of the stages of evaluation, in particular and the procurement process in general. 89.That notwithstanding, it would appear that the respondent was not quite clear in its mind whether the problem with the requirement was that information ought to have been sought after the notification. I say so because while, on the one hand, the respondent faulted the stage at which the information of beneficial ownership of the interested party was sought, it, on the other hand, stated that the information could not have been provided for lack of space or sufficient space in the form. 90.Be that as it may, if the 1st interested party harboured any doubts of when the required information ought to have been provided; or the details required to satisfy this requirement; or whether the 1st interested party was free to provide the information through other means than filling in the space provided in the form; and, if the 1st interested party was not clear on any other question, for that matter, concerning this particular requirement, it could and ought to have taken advantage of clause 6 of the tender document and sought the necessary clarification. 91.A tenderer cannot be deemed to have complied with a mandatory requirement merely because there was no space in the tender document to fill in the information required. Neither can a tenderer chose when to provide any particular information if the requirements are express and clear that the information ought to be provided at a particular stage of the procurement process. 92.The final issue in the respondent’s decision out of which the instant suit has been filed was the requirement on what was described in the tender document as “the schedule of deviations.” This was a mandatory requirement and was captured in the tender document in the following terms:“ 2.2 (xiv). Tenderer’s Technical specifications and drawings.This should be in form of a clause-by-clause commentary on the Procuring Entity’s Technical Specifications demonstrating substantial responsiveness of the Equipment to those specifications, or a statement of deviations and exceptions to the provisions of the Technical Specifications. Tenderer’s technical specifications shall not be a reproduction of the Procuring Entity’s specifications and supported by drawings and detailed brochures. In the case of deviations from the specifications given herein, a separate schedule of deviations shall be prepared. This may be accompanied by an account explaining how the departure from the technical specifications of the tender affects the Terminal Tractors performance, durability and overall dimensions and why the tenderer will choose to offer the Terminal Tractors with the stated deviation as opposed to complying. This shall be signed and stamped by the manufacturer”. 93.In short, the requirement was that in the event of deviations from the technical specifications given by the procuring entity, a bidder was required to provide a schedule of those deviations explaining the extent to which those deviations would affect the performance, durability and dimensions of the terminal tractors. 94.The 1st interested party did not provide any schedule of deviations. The respondent did not find any problem with this omission because, in its words: “…the Applicant's specifications were largely in accordance with the Procuring Entity's required specifications hence did not submit a separate schedule of deviations. The Board therefore finds that the Applicant was substantially responsive to the requirement on schedule of deviations.” 95.By stating that the 1st interested party’s specifications “were largely in accordance with the Procuring Entity's required specifications” the respondent must have necessarily been implying that the 1st interested party’s technical specifications were not completely consistent with those given by the procuring entity. In other words, there was some degree of deviation for which, under clause 2.2 (xiv) a schedule ought to have been provided. 96.My understanding of the requirement of the schedule of deviation or deviations is that, as long as a bidder’s or tenderer’s specifications fell short of the required specifications, a schedule of the deviation or deviations ought to have been given irrespective of the degree below which the specifications fell from the threshold. It followed that the question whether any particular tender was substantially or, in the words of the respondent, was “largely” in accordance with the specifications need not have arisen. 97.I suppose particularisation of deviations would generally be necessary for comparison purposes; a bidder with a lower degree of deviation would logically be deemed to more competitive in the technical specifications, or in any other aspect of the procurement, for that matter, in the procurement process. 98.Section 79. (2) (a) provides a window for what it considers as minor deviations that do not materially from the requirements set out in the tender. It reads as follows:79.(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; 99.Regulation 75. (2) of the regulations provides that the classification of a deviation from the requirements as minor under section 79(2)(a) of the Act must be applied uniformly and consistently to all tenders received by a procuring entity. 100.What this means is that deviations cannot be applied selectively to the advantage of one tenderer against the rest of his competitors in the tender. If deviation is a factor in the procurement process, irrespective of whether it applies to the technical specifications or to any other aspect of the procurement process, the degree to which any of the bidders have deviated must be considered and, most probably, it is for this reason that the procuring entity required a schedule of the deviations, to enable it gauge the level of compliance with the technical specifications by each of the bidders. Without the schedule of the deviations, it would be impossible to evaluate this aspect of the procurement process. 101.The cumulative effect of the respondent’s conduct in blatantly overlooking the 1st interested party’s failure to comply with the what was expressly stated in the tender document as mandatory requirements is that its decision is tainted on the grounds of illegality and irrationality. 102.Mandatory requirements in any particular tender have, as noted earlier in this judgment, a statutory backing. If I may recapitulate, sections 60(1) and (2) as read with section 70(6) enjoin an accounting officer of a procuring entity to set forth in a tender the specific requirements relating to goods or services for which a tender is floated. Some of those requirements are necessarily set as mandatory requirements in order to, inter alia, guard against compromising the quality of the goods or services sought to be procured. It has been noted that under section 79 of the Act a tender is considered responsive only if it meets eligibility requirements under section 55 of the Act and mandatory requirements specified in the tender documents. And Regulation 75(1) of the Public Procurement and Asset Disposal Regulations, 2020 bars a procuring entity from accepting any tender that falls short of the mandatory requirement. 103.It is also worth noting that under section 80(2) of the Act, the evaluation of tenders is subject the criteria and procedures set out in the tender document. This section reads as follows:80.(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. 104.The respondent invoked this provision in its decision and even went further to cite the decision of Mativo, J. (as he then was) in Republic v Public Procurement Administrative Review Board; Arid Contractors & General Supplies (Interested Party) Ex parte Meru University of Science & Technology [2019] KEHC 1935 (KLR)where the learned judge applied this provision of the law and held:“ 74.74. In several decisions of this court I have stated that in public procurement regulation it is a general rule that procuring entities should consider only conforming, compliant or responsive tenders. Tenders should comply with all aspects of the invitation to tender and meet any other requirements laid down by the procuring entity in its tender documents. Bidders should, in other words, comply with tender conditions; a failure to do so would defeat the underlying purpose of supplying information to bidders for the preparation of tenders and amount to unfairness if some bidders were allowed to circumvent tender conditions. It is important for bidders to compete on an equal footing. Moreover, they have a legitimate expectation that the procuring entity will comply with its own tender conditions. Requiring bidders to submit responsive, conforming or compliant tenders also promotes objectivity and encourages wide competition in that all bidders are required to tender on the same work and to the same terms and conditions.” 105.But as it has turned out, it is one thing to cite the applicable law and precedents in which any particular provision of the law has been correctly interpreted and applied and another thing, altogether, to apply the law and follow the precedent in the determination of a case with which a judicial or a quasi-judicial body such as the respondent is seized of. 106.I say so because despite identifying the proper law and the previous court decisions that ought to have been followed in its decision, the respondent proceeded to act contrary to those provisions of the law and the precedents which it acknowledged as representing the true and proper interpretation of the law applicable to the case before it. Going by the respondent’s decision, the 1st interested party was to be evaluated on less stringent mandatory requirements set out in the tender document than the rest of its competitors; a position that is diametrically opposite to the letter and spirit of the law and the court decision which the respondent acknowledged as representing the proper interpretation of the law. 107.To be precise, the respondent acted in excess of its jurisdiction and was irrational in its decision when it cleared a purported tax compliance certificate whose validity period could not be ascertained at the evaluation stage. It was also irrational of the respondent to conclude that, contrary to the mandatory requirements in the tender document, the validity period of the certificate, could be ascertained once an award of the tender had been made yet proof of a valid tax compliance certificate was necessary at the preliminary evaluation stage for the determination of a responsive tender. 108.The respondent was also irrational in its decision when, without any sort of clarification, it determined that a certificate applicable to “sales of material handling equipment, spare parts and other solutions; on demand and other maintenance services of material handling equipment” or a certificate issued to the 1st interested party’s subsidiary for “port machinery and load handling equipment” was equivalent to the mandatory certification expressed in the tender document as “Valid quality certificate for the manufacturing company stating clearly that their systems are certified for design and manufacturing processes i.e. ISO certification or equivalent”. Here, the decision was also tainted on the ground of illegality because the respondent took into account matters which it ought not to have considered and failed to consider matters which it ought to have considered. 109.The respondent’s decision is tainted on the same grounds of irrationality and illegality for the reason that the respondent determined that the 1st interested party was not bound to disclose the beneficial owners of the 1st interested party ostensibly because of lack of space in the form in which this information was to be filled yet it was a mandatory condition that this information ought to have been disclosed. The decision is also irrational to the extent that it determined the disclosure of the beneficial owners of the 1st interested party could only be done at the due diligence stage when the mandatory requirement was that the information was necessary for the evaluation of the tenders at the preliminary evaluation stage. 110.Finally, the respondent’s decision is illegal and irrational for having determined that it was unnecessary for the 1st interested party to submit a schedule of its specification’s deviations ostensibly because the 1st respondent had “largely” complied with the technical specifications outlined by the procuring entity when it was not apparent the degree to which the 1st interested party had complied. 111.By concluding that the 1st respondent had complied with the mandatory requirements when it was apparent that the it had not or that the 1st interested party need not have complied with the certain mandatory requirements until the award had been made, the respondent’s decision fits the description of the category of decisions that were described in Associated Provincial Picture Houses Ltd, V. Wednesbury Corporation (1948)1 K.B. 223 as being “ so grossly unreasonable, so outrageous in defiance of logic or acceptable moral standards that no reasonable authority or body, addressing itself to the facts and the law would have arrived at it”. 112.For the same reason, the decision was ultra vires sections55, 60(1) and (2); 70(6), 79 and 80 (2) of the Public Procurement and Asset Disposal Act and regulation 75(1) of the Public Procurement and Asset Disposal Regulations, 2020. 113.Based on the material before court, the respondent also acted in excess of its jurisdiction circumscribed in section 173(1) of the Public Procurement and Asset Disposal Act. This provision of the law reads as follows:173.Powers of Review BoardUpon 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. 114.There is nothing in these provisions that suggests that in exercise of its powers, the respondent is entitled to sidestep or overlook mandatory conditions in a tender document and, in the process, clear a tenderer whose bid is otherwise non-responsive. To the extent that the respondent did so, the respondent not only acted in excess of its jurisdiction but also its decision is ultra vires section 173 of the Act. Failure of the respondent in this regard also demonstrates that the respondent neither understood correctly the law that regulates its decision-making power nor gave effect to it. The decision would fall on the ground of illegality. 115.For the reasons I have given, I am satisfied that the applicant’s application is merited and an order of Certiorari is hereby granted bringing into this Honourable Court for purposes of being quashed, and the court hereby quashes the decision of the Public Procurement Administrative Review Board dated 21 March 2026 in Request for Review Application No. 32 of 2026 in respect of the Tender No. KPN036/2025-26/ES for Supply, Testing and Commissioning of Terminal Tractors. 116.I make no order as to costs. Orders accordingly SIGNED, DATED AND DELIVERED ON 15 MAY 2026NGAAH JAIRUSJUDGE