[2024] KEHC 10081 (KLR)

[2024] KEHC 10081 (KLR)

The High Court found that the Public Procurement Administrative Review Board's decision to order a fresh technical evaluation of all tenders, including those whose disqualification was uncontested, was irrational and unreasonable. The Board's own findings confirmed that only one tenderer (the applicant) met the technical criteria, and the other disqualified tenderers did not object to their exclusion. Subjecting all to a fresh evaluation, therefore, served no logical purpose and defied reasonableness. Furthermore, the Board's order mandating due diligence was ultra vires, as section 83(1) of the Public Procurement and Asset Disposal Act leaves this to the procuring entity's discretion,...

Citation
[2024] KEHC 10081 (KLR)
Parties
Applicant: Republic; Respondent: Public Procurement Administrative Review Board; Respondent: Accounting Officer Nuclear Power and Energy Action (NUPEA); Interested Party: Iansoft Technologies Limited; Exparte: Green Com Enterprise Solutions Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
13 August 2024
Case Number
Application E148 of 2024
Procedural Posture
Judicial Review Application / Judgment
Outcome
Application allowed. Order of certiorari granted quashing the Board's decision. Procurement process to proceed in line with the letter of notification dated 17 May 2024. Each party to bear its own costs.
Judges
J Ngaah
Legal Topics
Public Procurement Review, Judicial Review Remedies, Procedural Fairness, Irrationality and Illegality, Tender Evaluation, Natural Justice
Source Language
English
Administrative Law Commercial and Corporate Public Procurement Review Judicial Review Remedies Procedural Fairness Irrationality and Illegality Tender Evaluation Natural Justice

Case Brief

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Parties

Republic

Applicant

Public Procurement Administrative Review Board

Respondent

Accounting Officer Nuclear Power and Energy Action (NUPEA)

Respondent

Iansoft Technologies Limited

Interested Party

Green Com Enterprise Solutions Limited

Exparte

Procedural Posture

Judicial Review Application / Judgment

Legal Issues

  1. 1 Whether the Public Procurement Administrative Review Board's decision to order a fresh technical evaluation of all tenders was irrational and unreasonable.
  2. 2 Whether the Board acted ultra vires by mandating due diligence contrary to the discretionary provisions of the Public Procurement and Asset Disposal Act.
  3. 3 Whether the Board's decision was tainted by procedural impropriety for introducing new grounds without affording the applicant a hearing.

Ratio Decidendi

The High Court found that the Public Procurement Administrative Review Board's decision to order a fresh technical evaluation of all tenders, including those whose disqualification was uncontested, was irrational and unreasonable. The Board's own findings confirmed that only one tenderer (the applicant) met the technical criteria, and the other disqualified tenderers did not object to their exclusion. Subjecting all to a fresh evaluation, therefore, served no logical purpose and defied reasonableness. Furthermore, the Board's order mandating due diligence was ultra vires, as section 83(1) of the Public Procurement and Asset Disposal Act leaves this to the procuring entity's discretion,...

Court Disposition

Application allowed. Order of certiorari granted quashing the Board's decision. Procurement process to proceed in line with the letter of notification dated 17 May 2024. Each party to bear its own costs.

Orders

  • An order of certiorari is granted quashing the decision of the Public Procurement Administrative Review Board dated 21 June 2024 in PPARB Application No. 49 of 2024.
  • The 2nd respondent may proceed and conclude the procurement proceedings for Tender No. NuPEA/OT/DICT/004/23-24 in line with the letter of notification to award dated 17 May 2024.