[2022] KEHC 1172 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW DIVISION

JUDICIAL REVIEW MISCELLANEOUS APPLICATION NO. E016 OF 2022

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

VERSUS

THE PUBLIC PROCUREMENT & ADMINISTRATIVE REVIEW BOARD....................................1ST RESPONDENT

DIRECTOR GENERAL KENYA NATIONAL HIGHWAYS LIMITED..............................................2ND RESPONDENT

RIFT VALLEY HIGHWAY LIMITED.....................................................................................................3RD RESPONDENT

AND

KOREA EXPRESS CORPORATION (KEC)KOREA CONSULTANTS

INTERNATIONAL COMPANYLIMITED (KIC) & APEC CONSORTIUM LIMITED.....1ST INTERESTED PARTY

TÉCNICA Y PROYECTOS, S.A. & GIBB AFRICA LIMITED CONSORTIUM.................2ND INTERESTED PARTY

INGEROP SYSTRA-CAS.............................................................................................................3RD INTERESTED PARTY

AND

DAR-YUKSEL-AMA (A CONSORTIUM OF DAR-AL-HANDASAH IN JOINT VENTURE

WITH YUKELPROJE A.S &AMA CONSULTING ENGINEERS LTD..................................EX PARTE APPLICANT

JUDGMENT

1. Persuant to leave of court granted on the 9th of February 2022, DAR-YUKSEL-AMA (a consortium of Dar-Al-Handasah in Joint venture with YukelProje A.S & AMA Consulting Engineers Ltd (hereinafter the 2nd applicant) moved this court vide the Notice of motion dated 10th February,2022 for orders:

i. An Order of Certiorari to remove into this Honourable Court and quash the decision of the Public Procurement Administrative Review Board (PPARB) made on 27th January,2022, in its entirety and all consequential actions arising from the said decision.

ii. Consequent upon order No.2(sic) (i) above, an Order of Mandamus compelling the 2nd and 3rd Respondents to subject the Ex parte Applicant’s bid, to the exclusion of the Interested parties’ bids, to financial evaluation in strict compliance with the RFP document and to proceed to award the tender in compliance with the relevant provisions of the Public Procurement and Asset Disposal Act.

iii. In the alternative, an order of Certiorari to remove into this Honourable Court and quash, the decision of the Public Procurement Administrative Review Board (PPARB) made on 27th January,2022, in its entirety and all consequential actions arising from the said decision with the effect that the 2nd Respondent’s decision dated 24th December,2021 to terminate the procurement proceedings be reinstated.

iv. Any other or further orders that the court may deem fit and just to grant.

2. The Application is supported by the grounds in the statutory statement and Verifying Affidavit sworn by Georges Emil Fares both of which are dated 7th February,2022.

3. The 2nd applicant Applicant was a tenderer in Request for Proposal No; KENHA/PPP/2473/2021(herein after referred to as RFP) dated 17th September 2021 together with all the Interested Parties herein for the selection of the Independent Expert for the Nairobi-Nakuru-Mau Summit Highway Project by the 2nd and 3rd Respondents. Under the RFP, the evaluation of bidders was to be conducted in three stages as follows;

“Qualification evaluation stage

Subject to the Bidder declared as “PASS” based upon their Qualification Documents all the requirements as above stated, and subject to at least 2 Bidders declared as “PASS” based upon their Qualification Documents meeting all requirements as above stated, the Technical Proposals of such Bidders shall be taken up further by the CA and PC for evaluation. The Technical Proposals of the Bidders whose Qualification Documents have been disqualified by the CA and PC shall not be opened or considered for evaluation.

Technical evaluation stage

“Only those Bidders whose Technical Proposals score 70%(seventy percent) or more of the total score shall technically qualify for further consideration and shall be ranked from highest to the lowest on the basis of their Technical Score. Any Tenderer who fails to secure minimum 70% of the score shall be disqualified.

It was further a mandatory term of clause 3(b) of the RFP that each of the Key Personnel provided in a proposal must be available to perform their roles during the contract (at least 30% of the contract duration for the Project Director and 60% for other Key Personnel. The bidders shall be free to propose their own estimate of which the time-inputs will be evaluated as part of their technical approach, methodology, work plan, organization and staffing.

Financial evaluation stage

“The Financial Proposals of those Bidders who have secured Technical Scores above 70 (seventy) out of 100 (one hundred) shall be opened and evaluated by the CA and the PC jointly on the designated time and the designated venue.”

1. It is the 2nd applicant’s case that 4 bidders were found to have attained the minimum score of 70% at the technical evaluation and these were the following;

a. Ingerop Conseil et Ingenierie in consortium with Systra SA & CAS Consultants Limited;

b. TYPSA-GIBB International;

c. Korea Expressway Corporation(KEC) in consortium with Korea Consultants International (KCI) & APEC Consortium Limited.

d. Dar-Al-Handaah in Joint venture with YukselProje A.S& AMA Consulting Engineers Ltd.

2. Further that the 2nd Applicant was the only bidder that had also complied with the mandatory requirements stipulated at clause 3(b) of the RFP. Its bid, it was averred, was the only responsive proposal that ought to have proceeded to financial evaluation. The evaluation committee, although in agreement with this, disagreed on when the said clause would be applied. In a notification dated 24th December,2021, the Evaluation Committee notified all tenderers of the termination of the procurement proceedings on grounds that the statutory evaluation period had lapsed.

3. Dissatisfied with the said decision the 1st and 2nd Interested Parties filed Requests for Review N0. 5 and 8 of 2021 respectively which culminated with the 1st Respondent ordering a re-evaluation of all bids that had made it to the financial evaluation stage.

4. It was contended that the 1st Respondents decision disregarded the provisions of section 80(2) of the PPADA as it ought to have reviewed the entire evaluation process to ensure strict adherence to the criteria procedure laid out in the RFP document. The Applicant urged that, although the Board rightfully found that the evaluation of key staff time input analysis as not an evaluation criterion at the financial evaluation it failed to give effect to the said criterion sanctioning continued evaluation of tenderers who ought not to have passed to the financial evaluation stage. It is urged that the decision of the 1st Respondent was to the effect that only the applicant’s bid had complied with the mandatory term of clause 3(b) of the RFP on availability of key personnel during the contract. It is urged that the 1st Respondent was under a duty as provided under section 173 (b) of the Act to enforce compliance.

5. The applicant’s position is that pursuant to section 126 of the Act, the evaluation ought to have taken place within 21 days and that the 1st Respondent was prevented from hearing any dispute over termination of procurement proceedings pursuant to section 167(4)(b) of the Act. The 1st Respondent was also said to have misinterpreted the meaning of evaluation of tenders contrary to the findings of Nyamweya J (as she then was) in the case of Parliamentary Service Commission v Public Procurement Administrative Review Board; Aprim Consultants (Interested Party) [2021] eKLR.

6. It was the Applicant’s case that in addition to the 19 days the Board ought to have taken into account the period of 4 days spent by the Deputy Director Supply Chain Management to issue his professional opinion and the 10 days taken by the accounting officer to return his decision vide the notification of termination that was issued on 24th December,2021. The Board was said to have disregarded its own definition as the evidence before it explicitly showed that the evaluation report was in fact signed on 14th December,2021 bringing the total number of evaluation days to 23.

7. The Board, it was deposed relied on email correspondence to the effect that the financial evaluation was completed on 10th December,2021, which was incorrectly confused with the signed evaluation report and was otherwise superfluous and irrelevant evidence that the Board should not have examined.

8. In conclusion it was argued that the impugned decision was contrary to the provisions of Article 227 of the Constitution as read together with section 3 of the PPADA and that if not urgently remedied the said proceedings will be mired in illegality to the detriment of the Applicant and the public interest.

9. Persuant to leave of court granted on the 9th of February 2022, DAR-YUKSEL-AMA (a consortium of Dar-Al-Handasah in Joint venture with YukelProje A.S & AMA Consulting Engineers Ltd (hereinafter the 2nd applicant) moved this court vide the Notice of motion dated 10th February,2022 for orders:

v. An Order of Certiorari to remove into this Honourable Court and quash the decision of the Public Procurement Administrative Review Board (PPARB) made on 27th January,2022, in its entirety and all consequential actions arising from the said decision.

vi. Consequent upon order No.2(sic) (i) above, an Order of Mandamus compelling the 2nd and 3rd Respondents to subject the Ex parte Applicant’s bid, to the exclusion of the Interested parties’ bids, to financial evaluation in strict compliance with the RFP document and to proceed to award the tender in compliance with the relevant provisions of the Public Procurement and Asset Disposal Act.

vii. In the alternative, an order of Certiorari to remove into this Honourable Court and quash, the decision of the Public Procurement Administrative Review Board (PPARB) made on 27th January,2022, in its entirety and all consequential actions arising from the said decision with the effect that the 2nd Respondent’s decision dated 24th December,2021 to terminate the procurement proceedings be reinstated.

viii. Any other or further orders that the court may deem fit and just to grant.

2. The Application is supported by the grounds in the statutory statement and Verifying Affidavit sworn by Georges Emil Fares both of which are dated 7th February,2022.

3. The 2nd applicant Applicant was a tenderer in Request for Proposal No; KENHA/PPP/2473/2021(herein after referred to as RFP) dated 17th September 2021 together with all the Interested Parties herein for the selection of the Independent Expert for the Nairobi-Nakuru-Mau Summit Highway Project by the 2nd and 3rd Respondents. Under the RFP, the evaluation of bidders was to be conducted in three stages as follows;

“Qualification evaluation stage

Subject to the Bidder declared as “PASS” based upon their Qualification Documents all the requirements as above stated, and subject to at least 2 Bidders declared as “PASS” based upon their Qualification Documents meeting all requirements as above stated, the Technical Proposals of such Bidders shall be taken up further by the CA and PC for evaluation. The Technical Proposals of the Bidders whose Qualification Documents have been disqualified by the CA and PC shall not be opened or considered for evaluation.

Technical evaluation stage

“Only those Bidders whose Technical Proposals score 70%(seventy percent) or more of the total score shall technically qualify for further consideration and shall be ranked from highest to the lowest on the basis of their Technical Score. Any Tenderer who fails to secure minimum 70% of the score shall be disqualified.

It was further a mandatory term of clause 3(b) of the RFP that each of the Key Personnel provided in a proposal must be available to perform their roles during the contract (at least 30% of the contract duration for the Project Director and 60% for other Key Personnel. The bidders shall be free to propose their own estimate of which the time-inputs will be evaluated as part of their technical approach, methodology, work plan, organization and staffing.

Financial evaluation stage

“The Financial Proposals of those Bidders who have secured Technical Scores above 70 (seventy) out of 100 (one hundred) shall be opened and evaluated by the CA and the PC jointly on the designated time and the designated venue.”

9. It is the 2nd applicant’s case that 4 bidders were found to have attained the minimum score of 70% at the technical evaluation and these were the following;

e. Ingerop Conseil et Ingenierie in consortium with Systra SA & CAS Consultants Limited;

f. TYPSA-GIBB International;

g. Korea Expressway Corporation(KEC) in consortium with Korea Consultants International (KCI) & APEC Consortium Limited.

h. Dar-Al-Handaah in Joint venture with YukselProje A.S& AMA Consulting Engineers Ltd.

10. Further that the 2nd Applicant was the only bidder that had also complied with the mandatory requirements stipulated at clause 3(b) of the RFP. Its bid, it was averred, was the only responsive proposal that ought to have proceeded to financial evaluation. The evaluation committee, although in agreement with this, disagreed on when the said clause would be applied. In a notification dated 24th December,2021, the Evaluation Committee notified all tenderers of the termination of the procurement proceedings on grounds that the statutory evaluation period had lapsed.

11. Dissatisfied with the said decision the 1st and 2nd Interested Parties filed Requests for Review N0. 5 and 8 of 2021 respectively which culminated with the 1st Respondent ordering a re-evaluation of all bids that had made it to the financial evaluation stage.

12. It was contended that the 1st Respondents decision disregarded the provisions of section 80(2) of the PPADA as it ought to have reviewed the entire evaluation process to ensure strict adherence to the criteria procedure laid out in the RFP document. The Applicant urged that, although the Board rightfully found that the evaluation of key staff time input analysis as not an evaluation criterion at the financial evaluation it failed to give effect to the said criterion sanctioning continued evaluation of tenderers who ought not to have passed to the financial evaluation stage. It is urged that the decision of the 1st Respondent was to the effect that only the applicant’s bid had complied with the mandatory term of clause 3(b) of the RFP on availability of key personnel during the contract. It is urged that the 1st Respondent was under a duty as provided under section 173 (b) of the Act to enforce compliance.

13. The applicant’s position is that pursuant to section 126 of the Act, the evaluation ought to have taken place within 21 days and that the 1st Respondent was prevented from hearing any dispute over termination of procurement proceedings pursuant to section 167(4)(b) of the Act. The 1st Respondent was also said to have misinterpreted the meaning of evaluation of tenders contrary to the findings of Nyamweya J (as she then was) in the case of Parliamentary Service Commission v Public Procurement Administrative Review Board; Aprim Consultants (Interested Party) [2021] eKLR.

14. It was the Applicant’s case that in addition to the 19 days the Board ought to have taken into account the period of 4 days spent by the Deputy Director Supply Chain Management to issue his professional opinion and the 10 days taken by the accounting officer to return his decision vide the notification of termination that was issued on 24th December,2021. The Board was said to have disregarded its own definition as the evidence before it explicitly showed that the evaluation report was in fact signed on 14th December,2021 bringing the total number of evaluation days to 23.

15. The Board, it was deposed relied on email correspondence to the effect that the financial evaluation was completed on 10th December,2021, which was incorrectly confused with the signed evaluation report and was otherwise superfluous and irrelevant evidence that the Board should not have examined.

16. In conclusion it was argued that the impugned decision was contrary to the provisions of Article 227 of the Constitution as read together with section 3 of the PPADA and that if not urgently remedied the said proceedings will be mired in illegality to the detriment of the Applicant and the public interest.

RESPONSES

17. In response to the substantive motion herein the 1st Respondent herein adopted its Replying Affidavit filed in E012 OF 2022. The Affidavit is sworn by Mr. Stanley Miheso on 3rd March,2022.

18. The 2nd Respondent herein in its response also filed a Replying Affidavit dated 3rd March,2022 sworn by ENG. Kefa Seda, the Deputy Director, Public Private Partnership at the Kenya National Highways Authority. Engineer Seda stated that the authority entered into a Project Agreement under the Public Private Partnership, Act,2013 with the 3rd Respondent herein on 30th September,2020 for the Design, Build, Finance, Operate, Maintain and Transfer of Nairobi-Nakuru-Mau Summit Highway. An agreement to jointly procure an Independent expert to offer consultancy services was reached and the 2nd Respondent commenced the appointment in accordance with Regulations 56 of the PPADA,2015.

19. An invitation to tender for the project was made on 9th September, 2021 in the Dailies and three (3) addenda and three (3) clarifications were issued on different issues which formed part of the bidding document. The said addenda extended the submission date from 18th October,2021 to 8th Novemeber,2021 at 11. 00 a.m. and revised the submission date for the original bid security from 15th October,2021 to 5th November,2021.

20. A tender committee was appointed on 15th November,2021 and the evaluation process conducted in accordance with the criteria provided under section 80(2) of the PPADA,2015. The evaluation,was undertaken in 2 stages that is Completeness and Compliance Check and Technical Evaluation. In the first stage the completeness and compliance to the requirements of the RFP was checked and documents that did not pass this stage did not proceed to the technical evaluation stage.

21. Out of the total number of 7 bids submitted it was deposed that only Four (4) bids were responsive and upon approval of the technical evaluation report by the Director General, the Evaluation Committee proceeded to open the said bids on 9th December,2021 at 11. 00 a.m.. It was further averred that the financial evaluation was done pursuant to the requirements of the RFP and that the proposals were subjected to time input compliance pursuant to clause 3(b) of the RFP and clause 4 on sustainably promoting the local industry.

22. Some of the members of the committee had differing opinions on the interpretation of the RFP requirements involving financial proposal evaluation, which resulted in the committee failing to complete the financial evaluation and the tender evaluation period expiring, rendering the process void.

23. In conclusion it was contended that the analysis of the Evaluation Committee at the financial evaluation stage was inconclusive and no bidder complied at the said stage. No joint evaluation report was finalized either. The Applicant’s contention is that the criteria applied on the technical evaluation has no basis and the said issues did not form part of the issues before the Board and as such the Applicant’s invitation for the Court to inquire on the same lacks merit.

24. The 3rd Respondent filed a Replying Affidavit sworn by Cécile Brand?o, the Acting Chief Executive Officer of the 3rd Respondent dated 15th February,2022. The deponent averred that she was a member of the Evaluation Committee and that members of the Evaluation Committee were drawn from the 2nd and 3rd Respondents. She adds that the committee members representing the 3rd Respondent completed the evaluation of the financial proposals and sent the analysis to the full Evaluation Committee on 9th December,2021.

25. According to the deponent, the Committee conducted the review in three stages that is completeness and conformity, technical evaluation, and during financial evaluation all financial proposals were found to be compliant with clause 3(b) of the RFP on Key Personnel requirements. This position was confirmed by the email sent by Eng. Kefa Seda on 10th December,2021. The said analysis it was averred was based on the pdf copies of the financial proposals with rounded man-days and not the excel copies with exact man-days figures.

26. Clause 3 (d) prescribed that the project manager be available at least 30% of the contract duration and the other key personnel 60% of the contract duration and therefore there was no reduction of the number of days required of the key staff and local staff in the Financial Proposals and therefore no lower costing. It is urged that the 3rd Respondent was strongly opposed the approach of excluding three bidders from the scoring and ranking. Further that the Applicant had failed to disclose that its bid had proceeded to the financial evaluation stage.

27. The 1st Interested Party in opposition to the application filed grounds of opposition dated 23rd February,2022. In the said grounds the party contended that prayers (i) and (ii) of the application do not lie under judicial review in the absence of the Evaluation Report. Further that there being, no financial Evaluation Report furnished the grounds relied on that the Applicant was the only successful bidder are inadmissible. In addition, the different opinions of the members of the evaluation committee, can be resolved, by re-evaluation of the technical and financial proposals and as such prayer (iii) is contrary to public interest.

28. The 2nd Interested Party filed a Replying Affidavit sworn by Joaquín Barba Zalvide, the Managing Director(Africa)on 17th February, 2022. According to the deponent the 2nd Interested Party attained the highest score of 91. 90% while the Ex parte Applicant herein was 3rd highest. Mr. Zalvide stated that the evaluation was done within the prescribed 21 days and thus not within the 2nd Respondent’s powers to terminate the procurement proceedings.

29. The Ex parte Applicant in its Further Affidavit dated 23rd February,2022 contended that as a tenderer within the meaning of section 2 of the PPADA, it was within its right to challenge the Board’s decision and to support this position cited the case of Judicial Service Commission & Another v Lucy Muthoni Njora [2021] eKLR.

30. It was the Applicant’s case that nothing under section 175 of the PPADA limits the powers of the Board to enforce compliance with the RFP or tender document. The Board's decision for re-evaluation to be done yet only one tenderer had complied was evasive and manifestly illegal.

31. It is contended that the dispute in the evaluation committee was in regard to at what stage the findings in clause 3(b) ought to have been applied and what is before this court is the issue of whether the said findings ought to be ignored merely because the evaluation committee had already passed the technical evaluation stage.

PARTIES SUBMISSIONS

32. The Application was canvassed by way of written submissions. The Ex parte applicant filed written submissions dated 23rd February,2022, the 1st Respondent submissions dated 8th March,2022, the 2nd Respondent submissions dated 8th March,2022, the 3rd Respondent submissions dated 15th February,2022, 1st Interested Party skeleton submissions dated 9th March,2022 while the 2nd Interested Party filed submissions dated 2nd March,2022.

33. Counsel for the Applicant submitted that The PPADA, provides irreducible minimums that ensure that bidders are treated fairly and transparently as contemplated by the Constitution. Learned counsel submitted that section 80(2) serves the purpose of ensuring that the procurement process inspires confidence in all tenderers. It is submitted that clarification no. 1 of 7th October 2021 required clause 3(b) to be applied at the Technical evaluation stage and therefore not open to the 2nd and 3rd Respondents to purport to disagree on the same. It is urged that the Board had powers under section 173(b) of the Act to direct the reopening of Technical evaluation to enable the application of the said criterion.

34. Learned counsel submitted that as was held in Court of Appeal case of Kenya Pipeline Co. Ltd Vs. Glencore Energy (UK) LTD |2015| eKLR it is trite law that once a breach of statute is brought to the attention of a court of law, the same must be investigated and appropriate reliefs granted to remedy it.

35. On the Applicant’s legitimate expectation learned counsel cited the case Republic v Kenya Revenue Authority Ex Parte Cooper K-Brands Limited l2016| eKLR.

36. The 1st Respondent in its submissions cited the cases of Re Bivac International SA (Bureau Veritas) (2005)2 EA 43,Pastoli v. Kabale District Local Government Council and Others [2008]2 EA 300, 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 [20 14] eKLRin regards to the scope of judicial review.

37. The Court of Appeal case ofKenya Pipeline Company Limited v Hyousung Ebara Company Limited & 2 Others [2012] eKLRwas also cited where the court while allowing the appeal held that in so long as the proceedings in the Review Board were regular and it had jurisdiction to adjudicate upon the matters raised it was entitled to decide the matters wrongly as it was to decide them rightly.

38. It was contended that misinterpretation of the law is not sufficient to move a judicial review application. The cases of Republic v Public Procurement Administrative Review Board; Leeds Equipments & Systems Limited (interested Party); Ex parte Kenya Veterinary Vaccines Production Institute [2018] eKLRand Republic v Procurement Administrative Review Board & 2 Others [2019] eKLRwere cited in this regard.

39. On instances when an order of certiorari can issue learned counsel cited the case ofKenya National Examination Council v. Republic; Ex parte Geoffrey Gathenji & 9 Others.It was submitted the Board’s decision was made within its jurisdiction and that all the Rules of natural justice were observed to support this argument counsel cited the cases of Republic v Public Procurement Administrative Review Board; Shenzhen Instrument Co. Limited & another (Interested Party) Ex parte Kenya Power & Lighting Company Limited [2019] eKLR, Municipal Council of Mombasa v Republic & Another [2002] eKLR, Sunchan Investment Limited v. Ministry of National Heritage & Culture & 3 Others [2016] eKLR.

40. In conclusion is was urged that the application before this court is an appeal disguised and that the Applicant has failed to make out a case for issuance of the orders sought and as such the same should be dismissed with costs and if the court is inclined to grant the said prayers then the Respondent should not be condemned to pay costs as it acted in good faith.

41. The 2nd Respondent in its written submissions contended that once the validity period provided under section 126(3) of the Act lapses the same amounts to the procurement process being overtaken by the operation of law. To support this position learned counsel cited the case of Lordship Africa Limited v Public Procurement Administrative Board & 2 Others [2018] eKLR where the court held that statutory provisions must be followed. Learned counsel urged that at the time of termination of the subject tender, technical evaluation had been completed and the issue before the Board was the decision taken by the 2nd Respondent at the financial evaluation stage.

42. The 3rd Respondent identified 2 issues for determination and these are; whether the Evaluation Committee evaluated the subject Tender in accordance with the Tender document and the law and whether the Applicant is entitled to the orders sought. On the role of the Evaluation Committee learned counsel cited the case of Parliamentary Service Commission V Public Procurement Board; Aprim Consultants (Interested Party) [2021] eKLR.

43. It was submitted that the Board’s power as provided under section 173 of the Act includes making an order for the re-evaluation of tenders in supporting this argument counsel cited the case of Republic v Public Procurement Administrative Review Board; Rhombus Construction Company Limited (Interested Party) Ex parte Kenya Ports Authority & another [2021] eKLR. On the scope of judicial review especially in procurement matters learned counsel cited the case of Kenya Ports Authority & another v Rhombus Construction Company Limited & 2 Others [2021] eKLR.

44. The 1st Interested Party in its skeleton submissions submitted that in response to the application in the instant matter it had adopted the submissions and replying submissions filed in JR. No. E012 of 2022. Learned counsel however in the skeleton submissions filed herein, went ahead to reply to the other party’s written submissions.

45. It was the 1st Interested Party’s case that it was in agreement with the Applicant that the Board was obligated to use its discretion to order a re-evaluation of both the technical and the financial proposals. However, it disagreed with the Applicant’s position on the findings of the Board as the 1st Interested Party supported the termination of the procurement.

46. It is submitted that the PPADA,2015, does not recognize any public procuring entity as having the authority to pick an independent expert. Its viewpoints should be investigated in light of its conflicting position in the selection of the Independent Expert who is expected to monitor and certify its building activities on behalf of Kenyans, as well as its relationship with the statutory regulators, the 2nd and 3rd Respondents. Learned counsel also submitted that by serving on the Evaluation Committee, the CEO violates all the norms of good governance as well as the requirements of the PPADA,2015 for the independence of the Evaluators.

47. Learned counsel further submitted that the instant case differs from that in Parliamentary Service Commission V Public Procurement Administrative Review Board; Arprim Consultants (Interested Party) [2021] eKLR as in the said case an opinion had been sought from the Procurement Officer and the Board had failed to consider the said period as part of the evaluation period.

48. On the role of the Evaluation Committee to the exclusion of The procurement officer and accounting officer counsel cited sections 44,46 (4)(a),80(1), 85 and 126(1) of the PPADA, 2015. It was submitted that in light of the above provisions evaluation is deemed to be the process undertaken by the Evaluation Committee to evaluate bids and prepare an evaluation report. It was contended that assuming evaluation of proposals includes notification of the successful and unsuccessful bidders by the accounting officer of the procuring entity, then this role would be carried out by the Evaluation Committee and not by the accounting officer.

49. Learned counsel submitted that as was held in the case of Republic vs Public Procurement Administrative Review Board; Kenya Medical Supplies Authority (KEMSA) (Interested Party) Ex parte Emcure Pharmaceuticals Limited [2019] eKLRcourts will apply that construction which best carries into effect the purpose of the statute under consideration. It was contended that if evaluation is deemed to include all the processes coming after the report is made by the Evaluation Committee or any other extraneous processes this would result in a situation where some actors can deliberately delay evaluation of proposals.

50. It was the 2nd Interested Party’s submission that the 2nd Respondent was guilty of running the time down so as to take advantage of section 126(3) by its refusal to evaluate the tenders at the same time with the rest of the Evaluation Committee members. It was also contended that section 80(6) under PART VII of the Act provides that evaluation is to be carried out within a maximum period of 30 days while Section 126(3) under PART X stipulates that evaluation shall be carried out within a maximum of 21 days and thus an ambiguity over what part takes precedence over the other. On jurisdiction of the Review Board counsel cited the case of Kenya Pipeline Company Ltd vs. Hyosung Ebara Company Ltd & 2 Others [2012] eKLR.

DETERMINATION

51. I have considered the consolidated Applications and the affidavits both in support and in opposition thereto together with the submissions by counsel and I find that 2 issues crystallize for determination as follows;

i. Whether the Review Board acted ultra vires in directing that the termination of the procurement proceedings and the letters of notification of termination be cancelled and set aside.

ii. Whether the Review Board acted ultra vires in directing the Evaluation Committee to conduct a re-evaluation at the Financial Evaluation stage of all the financial proposals of tenderers who made it to the Financial Evaluation stage.

iii. Whether the Review Board’s decision directing the procurement process to be completed was illegal, irrational and/or tainted with procedural impropriety.

The Applicable Legal Principles

44. The remedies sought in this matter are within the jurisdiction of this court by dint of section 175 (1) of the PPADA. The determination of the subject issues must be confined to the scope of judicial review whose scope our courts have well settled in our jurisprudence.

45. The court inRepublic v The Retirement Benefits Appeals Tribunal Ex Parte Augustine Juma & 8 Others [2013] eKLRstated;

‘’……….. it must be remembered that the function of this court sitting in judicial review is not concerned with the merits of the decision. The case of Republic v Chief Magistrate’s court Nairobi & 4 others ex parte Beth Wanja Njoroge [2013] eKLR, Nairobi Civil Misc Appl. 327 of 2011, is apposite in this regard where Odunga J., held, “[20] In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety. Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards. Procedural impropriety is when there is a failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.”

25. I will add that judicial review is not an appeal from a decision, but a review of the manner in which the decision was made. Once a body is vested with the power to do something under the law, then there is room for it to make that decision, wrongly as it is rightly. That is why there is the appellate procedure to test and examine the substance of the decision itself. It follows, therefore, that the correctness or the ‘wrongness’ or error in interpretation or application of the law is not appropriately tested in a judicial review forum. In simple terms, a ‘wrong’ decision done within the law and in adherence to the correct procedure can seldom be said to be ultra vires as to attract remedy for the prerogative writs. The Court of Appeal in Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 others, CA Civil Appeal 145 of 2011 [2012]eKLR expressed this view as follows; “[21]Moreover, where the proceedings are regular upon their face and the inferior tribunal has jurisdiction in the original narrow sense (that is, to say, it has power to adjudicate upon the dispute) and does not commit any of the errors which go to jurisdiction in the wider sense, the quashing order (certiorari) will not be ordinarily granted on the ground that its decision is considered to be wrong either because it misconceived a point of law or misconstrued a statute (except a misconstruction of a statute relating to its own jurisdiction) or that its decision is wrong in matters of fact or that it misdirects itself in some matter.....’’

46. It is within the purview of these principles that the matter before me ought to be determined.

47. Before the board were two Request for Reviews being No. 05 of 2022 and No. 08 of 2022. The Applications sought more or less the same orders, that the main gist of which was that the termination of the tender by the procuring entity be cancelled/set aside and that the procuring entity be directed to complete the evaluation process in compliance with the RFP. A common ground of attack on the termination is that the same does not satisfy the requirements of section 63 of the Act as read with section 126(3) of the Act.

48. Seized of the matter the Board upon hearing the parties made a determination that the termination of the tender was not in accordance with section 63 of the Act and thus the jurisdiction of the Board was not ousted by dint of section 167(4)(b) of the Act. The termination and the letters of notification were cancelled and set aside. The Board further took note of the different positions taken by members of the evaluation committee on how evaluation of tenders was to be conducted at the financial evaluation stage. Citing Article 227 of the constitution, the Board set out the system that ought to be applied in public procurement of goods and services being one that is fair, equitable, transparent, competitive and cost effective.

49. The Board further recognized that Section 80 of the Act is instructive on how evaluation of tenders should be conducted and which is, per sub section (2), by use of the procedure and criteria set out in tender documents. It was directed,in those circumstances, that the procuring entity was to complete the procurement process to its logical conclusion. It is against this background that the court will analyse and determine the issues before it.

Whether the Review Board acted ultra vires in directing that the termination of the procurement proceedings and the letters of notification of termination be cancelled and set aside.

50. Section 167 4(b) of the Act provides that a termination of a procurement or asset disposal proceedings by an accounting officer or a procuring entity under Section 63 of the Act shall not be subject to review proceedings under Section 167(1). It is contended that the Board had no jurisdiction to hear any dispute on termination of the procurement proceedings. It is trite law that courts and other decision bodies cannot act without jurisdiction and any decision made without jurisdiction is a nullity. Acting without jurisdiction is actually an illegality that this court has power to review under judicial review.

51. In Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012]eKLR, the supreme court stated;

‘’A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings……..’’

52. Section 63(2), (3) and (4) provide that an accounting officer who terminates a procurement or asset disposal proceedings shall give the Public procurement Regulatory Authority a written report on the termination within 14 days. The report shall include the reasons for termination. The officer shall also notify all persons who submitted tenders of the termination within 14 days of termination and such notice shall contain the reason for termination. For the jurisdiction of the Board to be ousted, the termination must meet the conditions set in section 63 of the Act.

53The pertinent question when a dispute over a procurement arises, and specifically the question whether the procuring entity was within the ambit of section 63 when terminating the process, is then, by who and at what stage would the determination be made. In my view section 63 of the Act, if left unchecked, is prone to abuse by rogue accounting officers or procurement entities leading to erosion of the long fought for ethos of accountability in public procurement envisaged under Article 227 of the constitution. Where it is disputed whether the termination was proper, the Board must rise to the occasion and resolve the question within its mandate under Section 167 of the Act. Anything to the contrary would be a a carte blancheto procuring entities to seek refuge in section 63 even when not deservedly so.

54. This court Nyamweya J (as she then was) in Republic v Public Procurement Review Board ; Leeds Equipment & systems Limited (Interested Party); Ex Parte Kenya Vetirinary vaccines Production Institute [2018] Eklr held;

‘’ The main question to be answered is whether the Respondent erred in finding it had jurisdiction to entertain the Interested Party’s Request For Review of the Applicant’s decision to terminate the subject procurement. In answering this question, this Court is further guided by the circumstances when a public body shall be deemed to have made an error of law as expounded in Halsbury’s Laws of England, 4th Edition at paragraph 77 as follows:

“There is a general presumption that a public decision making body has no jurisdiction or power to commit an error of law; thus where a body errs in law in reaching a decision or making an order, the court may quash that decision or order. The error of law must be relevant, that is to say it must be an error in the actual making of the decision which affects the decision itself. Even if the error of law is relevant, the court may exercise its discretion not to quash where the decision would have been no different had the error not been committed. Where a notice, order or other instrument made by a public body is unlawful only in part, the whole instrument will be invalid unless the unlawful part can be severed. In certain exceptional cases, the presumption that there is no power or jurisdiction to commit an error of law may be rebutted, in which case the court will not quash for an error of law made within jurisdiction in the narrow sense. The previous law which drew a distinction between errors of law on the face of the record and other errors of law is now obsolete. A public body will err in law if it acts in breach of fundamental human rights; misinterprets a statute, or any other legal document, or a rule of common law, takes a decision on the basis of secondary legislation, or any other act or order, which is itself ultra vires; takes legally irrelevant consideration into account, or fails to take relevant considerations into account, admits inadmissible evidence, rejects admissible and relevant evidence, or takes a decision on no evidence, misdirects itself as to the burden of proof, fails to follow the proper procedure required by law; fails to fulfil an express or implied duty to give reasons or otherwise abuses its power…………

.

32. The Respondent’s finding in its decision of 16th March 2018 on the issue of its jurisdiction and powers under the above cited sections as regards the Interested Party’s Request for Review was as follows:

“In a nutshell therefore and based on the above decided cases where the decision of a procuring entity to terminate procurement process is challenged before the Board, the procuring entity is under a duty to place sufficient reasons and evidence before the Board to justify and support the ground of termination of the procurement process under challenge. The Procuring Entity must in addition to providing sufficient evidence also demonstrate that it has complied with the substantive and the procedural requirements set out under the provisions of Section 63 of the Public Procurement and Asset Disposal Act 2015.

Based on all the above decisions, the Preliminary Objection on jurisdiction therefore fails and is disallowed and the Board finds and holds that it has the jurisdiction to hear and determine this Request for Review on its merits.”

33. A plain reading of section 167(4)(b) is to the effect that a termination that is in accordance with section 63 of the Act is not subject to review. Therefore, there is a statutory pre-condition that first needs to be satisfied in the said sub-section namely that the termination proceedings are conducted in accordance with the provisions of section 63 of the Act, and that the circumstances set out in section 63 were satisfied, before the jurisdiction of the Respondent can be ousted.

34. As has previously been held by this Court in Republic v Kenya National Highways Authority Ex Parte Adopt –A- Light Ltd [2018] eKLR and Republic v Secretary of the Firearms Licensing Board & 2 others Ex -parte:Senator Johnson Muthama [2018] eKLR, it is for the public body which is the primary decision maker, in this instance the Applicant as the procuring entity, to determine if the statutory pre-conditions and circumstances in section 63 apply before a procurement to be terminated. Therefore it was indeed within the Accounting Officer’s powers to make that inquiry.

35. However, the Respondent and this Court as review courts have jurisdiction where there is a challenge is as to whether or not the statutory precondition was satisfied, and/or that there was a wrong finding made by the Applicant in this regard. This was the essence of the Interested Party’s challenge in its Request for Review, which was annexed by the Applicant as “Annexure JW 8” to its verifying affidavit sworn on 29th March 2018. The Interested Party in this respect alleged that the Applicant terminated the subject tender on the ground that there were insufficient funds whereas it had adequate budgetary allocation for the same, and that the termination was thus without legal justification.

36. The Respondent was therefore within its jurisdiction and review powers, and was not in error, to interrogate the Applicant’s Accounting Officer’s conclusion as to the existence or otherwise of the conditions set out in section 63 of the Act, and particularly the reason given that there were no budgetary allocation for the procurement. This was also the holding by this Court (Mativo J.) in in R v Public Procurement Administrative Review Board & 2 Others Ex-parte Selex Sistemi Intergrati(supra) which detailed the evidence that the Respondent would be required to consider while determining the propriety of a termination of a procurement process under the provisions of section 63 of the Act.’’

55. From the record of the proceedings before the board, it is clear that the Board took up the question whether the Procuring entity had satisfied the conditions in section 63 and analysed the same and reached a determination. As explained above, there was nothing illegal or unprocedural in the Board’s exercise of its mandate. The Board had jurisdiction.

Whether the Review Board acted ultra vires in directing the Evaluation Committee to conduct a re-evaluation at the Financial Evaluation stage of all the financial proposals of tenderers who made it to the Financial Evaluation stage.

56. The Board’s decision is faulted for having been made in ignorance of the mandatory provisions of section 80(2) of the Act. It is urged that the board ought to have reviewed the entire evaluation process to ensure strict compliance with the criteria and procedure laid out in the RFP document. The contention is that the Board did not have powers to direct the evaluation committee on how to evaluate and what criteria to use. It is contended by the 2nd appplicant that confidential information emerging from the Board’s impugned decision shows that the 2nd applicant was the only bidder that complied with the mandatory requirements stipulated at clause 3(b) of the RFP and was therefore the only bidder that submitted a responsive proposal that ought to have proceeded to financial evaluation. That fact is contested.

57. So, what are the powers of the board upon completion of a review?

Section 173 of the Public Procurement and Asset Disposal Act which the 1st respondent invoked in making its orders reads 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.

58. A plain reading of section 173(b) shows that the Board has powers to give directions to the accounting officer of a procurement entity with respect to anything to be done or redone in the procurement or disposal proceedings. In our instant suit, it is documented that differences arose amongst the members of the evaluating committee. The Board took cognizance of the different interpretations of the tender document and in its decision it states ‘’ …..we deem it necessary to guide the evaluation committee on how it should conduct evaluation of tenders at the financial stage’’. The Board was clear on the import of Section 80(1) and (2) of the Act read with Article227(1) of the constitution which is a requirement that an evaluation committee is to evaluate tenders in a system that is fair using the criteria and procedure laid out in a tender document. The board proceed to elaborately analyse the criteria to be used and directed the procuring entity accordingly.

59. Given the information gleaned from emails between evaluation committee members, it cannot be true that the 2nd applicant was the only bidder who had submitted a responsive bid. The evaluation was not complete and in my view the Board in exercise of the mandate under section 173(b) directed how the evaluation was to be done. In so doing, it cannot therefore be correct to state that the Board acted in ignorance of section 80(2) of the Act and neither can it be true that it did not review the entire evaluation process to ensure strict adherence to the criteria and procedure laid out in the RFP document. To the contrary the board did exactly that.

60. A closer examination of the Board’s decision shows that it only restated the provisions and formulae spelt out in the RFP . In the circumstances , the board in no way interfered with the independence and powers of the evaluation committee but only gave a clear criteria to be applied by the evaluation committee.

60. The court in the case of Republic v Public Procurement Review Board; Rhombus Construction Company Ltd (Interested Party) Ex Parte Kenya Ports Authority & Another [2021] eKLR, while addressing the powers of the Board post review stated;

‘’ Under section 173(a)(b) & (c) of the Act, the Board has wide discretionary powers for the better management of tendering system to direct the doing or not doing or redoing certain acts done or omitted from being done or wrongly done by the accounting officer. Although the Act does not expressly limit the powers of the Board from extending tender validity period more than once, one can imply that the powers conferred upon the Review board includes powers to extend validity period to avert situations where the accounting officer can misuse powers under Section 88 to frustrate tenderers or bidders not considered favourable.’’

61. Noting that the board acted within its powers and after an elaborate analysis reached the conclusion to direct how evaluation was to be done, this court finds no grounds upon which to review the decision. I concur with the decision in Republic v Public Procurement Administrative Review Board; Shenzhen Instrument Co. Limited & another (Interested Party) Ex parte Kenya Power and Lighting Company Limited [2019] EklrwhereMativo J while relying on the decision in Paul Kiplagat Birgen & 25 Others v Interim Independent Electoral Commission & 2 Others {2011} eKLRheld as follows;

a. “A Judicial Review court ought to be slow to substitute its own decision solely because it does not agree with the permissible option chosen by the body. Where a body is granted wide decision-making powers with a number of options or variables, a judicial review court may not interfere unless it is clear that the choice preferred is at odds with the law. If the impugned decision lies within a range of permissible decisions, a Judicial Review court may not interfere only because it favours a different option within the range…”

Whether the Review Board’s decision directing the procurement process to be completed was illegal, irrational and/or tainted with procedural impropriety.

62. This issue is tied to the two other issues discussed and findings made hereinabove. Without regurgitating the analysis already made , having made a finding that the Board acted properly in cancelling and setting aside the termination of the procurement process, and alive to the Board’s powers under Section 173 of the Act post review, no basis has been laid to show that the direction that the procurement process be completed was either illegal, irrational or tainted with procedural impropriety. The direction was given in furtherance of the constitutional requirements under Article 227 and within the framework of the Act.

63. In view of the foregoing, I reach the finding that the consolidated application is without merit and is dismissed. Each Party to bear its own costs.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 22ND DAY OF MARCH, 2022

A. K. NDUNGU

JUDGE