[2017] KEHC 9693 (KLR)

[2017] KEHC 9693 (KLR)

The court held that while a procuring entity may seek clarifications to assist in evaluating bids, such clarifications cannot be used to alter the terms or sums of the bids as submitted and read out at tender opening. The tender documents and the Public Procurement and Asset Disposal Act, 2015, require that the evaluation be based strictly on the submitted and read out figures, and any adjustment or correction post-opening is prohibited. The PPARB was correct in finding that the procuring entity's adjustment of Attain's bid after clarification was unlawful. However, the court found that the PPARB's order requiring completion of the procurement process within seven days, without allowing...

Citation
[2017] KEHC 9693 (KLR)
Parties
Applicant: Industrial & Commercial Development Corporation; Respondent: Public Procurement Administrative Review Board; Interested Party: Surestep Systems and Solutions Limited; Interested Party: Attain Enterprise Solutions Ltd
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
6 December 2017
Case Number
Miscellaneous Application 281 of 2017
Procedural Posture
Miscellaneous Application / Judgment
Outcome
Application dismissed save for modification of the procurement completion order.
Judges
GV Odunga
Legal Topics
Public Procurement, Judicial Review, Tender Evaluation, Statutory Compliance, Bid Clarification, Remedies
Source Language
English
Administrative Law Commercial and Corporate Public Procurement Judicial Review Tender Evaluation Statutory Compliance Bid Clarification Remedies

Case Brief

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Parties

Industrial & Commercial Development Corporation

Applicant

Public Procurement Administrative Review Board

Respondent

Surestep Systems and Solutions Limited

Interested Party

Attain Enterprise Solutions Ltd

Interested Party

Procedural Posture

Miscellaneous Application / Judgment

Legal Issues

  1. 1 Whether the procuring entity (ICDC) acted lawfully in seeking clarifications from bidders and adjusting tender sums after bid opening.
  2. 2 Whether the Public Procurement Administrative Review Board (PPARB) exceeded its mandate by directing the award of the tender to Surestep Systems and Solutions Limited.
  3. 3 Whether the evaluation and award process complied with the Public Procurement and Asset Disposal Act, 2015 and the tender documents.

Ratio Decidendi

The court held that while a procuring entity may seek clarifications to assist in evaluating bids, such clarifications cannot be used to alter the terms or sums of the bids as submitted and read out at tender opening. The tender documents and the Public Procurement and Asset Disposal Act, 2015, require that the evaluation be based strictly on the submitted and read out figures, and any adjustment or correction post-opening is prohibited. The PPARB was correct in finding that the procuring entity's adjustment of Attain's bid after clarification was unlawful. However, the court found that the PPARB's order requiring completion of the procurement process within seven days, without allowing...

Court Disposition

Application dismissed save for modification of the procurement completion order.

Orders

  • The order directing the ex parte applicant to complete the procurement process within seven (7) days is set aside.
  • The ex parte applicant is to complete the procurement process within twenty-one (21) days from the date of judgment, with liberty to negotiate with the 1st interested party pursuant to clause 2.10 of the RFP.