[2017] KEHC 536 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO. 591 OF 2016

IN THE MATTER OF AN APPLICATION SEEKING LEAVE

TO COMMENCE JUDICIAL REVIEW PROCEEDINGS

AND

IN THE MATTER OF TENDER NO. KNBS/T/01/2016- 2017 FOR

SUPPLY,DELIVERY, INSTALLATION, COMMISSIONING AND

MAINTENANCE OF A FULL COLOUR DIGITAL PRINTER

AND

IN THE MATTER OF THE PUBLIC PROCUREMENT AND

DISPOSAL ACT,CAP 412A AND THE PUBLICPROCUREMENT

AND DISPOSAL REGULATIONS (2005)

AND

IN THE MATTER OF THE LAW REFORM ACT, CAP 26

AND ORDER 53 OF THE CIVIL PROCEDURE RULES

AND

IN THE MATTER OF ARTICLES 201(d), 227(1) 232(1) (b) OF THE CONSTITUTION, 2010

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

VERSUS

PUBLIC PROCUREMENT ADMINISTRATIVE

REVIEW BOARD.............................................................1ST RESPONDENT

THE DIRECTOR GENERAL,

KENYA NATIONAL BUREAU OF STATISTICS......2ND RESPONDENT

OFF TECHNOLOGIES LTD...................................INTERESTED PARTY

MFI DOCUMENT SOLUTIONS LTD.................EXPARTE APPLICANT

JUDGMENT

1. By a Judicial Review notice of motion dated 22nd March 2017 the exparte applicant MFI Document Solutions Ltd seeks from this court Judicial Review remedies of:

a) Certiorari directed at the 1st respondent Public Procurement Administrative Review Board to bring into this court and quash :-

i. The entire decision of the Public Procurement Administrative Review Board as set out in its decision delivered on 11th November 2016 in Review case No 88/2016 of 24th October 2016 between the exparte applicant MFI Document Solutions Ltd and the 2nd respondent the Kenya National Bureau of Statistics.

ii. The award of tender No. KNBS/T/01/2016-2017 to the interested party Office Technologies Ltd in respect of supply, deliver, installation, commissioning and maintenance of A3 full colour digital printer at a price of kshs 11,900,000

b) Declaration that the decision and ruling of the 1st respondent Review Board delivered on 11th November 2016 in Public Procurement Administrative Review Board case No. 88/16 of 24th October 2016 was ultra-vires the Constitution, the Public Procurement and Disposal Act and the Public Procurement and Disposal Regulations and is therefore invalid, void and of no effect.

c) Declaration that the 1st respondent Review Board in arriving at its decision acted in excess of jurisdiction by taking into account matters it ought not to have taken into account and failed to consider matters it ought to have taken into account.

d) Declaration that the decision of Public Procurement Administrative Review Board in case No. 88/206 of 24th October 2016 delivered on 11th November 2016 is unreasonable as it failed to consider the relevant constitutional statutory provisions as well as submissions made by the exparte applicant and the interested party in arriving at its decision.

e) That this court be pleased to issue such further or other orders as it may deem just.

f) That costs of this application be in the cause.

2. The application was opposed by the respondents and the interested party. The exparte applicant’s case is that the 2nd respondent floated a tender in terms contained d in the tender document and one of the terms of the tender was that bidders would be put through three evaluation steps which were mandatory, technical and financial evaluation stage; and that the bidders who met the mandatory requirements and scored 80% of the technical evaluation stage would be allowed to proceed to be evaluated at the financial stage which was 20%.

3. It is claimed that of the 11 firms that submitted bids, only 3 qualified to the Technical Evaluation Stage and upon consideration, the exparte applicant and the interested party met the required 80% score and proceeded to the financial stage. The interested party was subsequently found to be the successful bidder and was awarded the tender upon being found to be the lowest bidder.

4. The exparte applicant being dissatisfied with the decision of the 2nd respondent to award the tender to the interested party filed for review on 24th October 2016 seeking cancellation of the award of the tender to the interested party and seeking for comparison of the technical specification of the tenders.

5. In the review application, the exparte applicant contended that the successful bidder had not met the mandatory technical specifications set out in the tender documents and more so, specifications Nos 3,4,9,10,11, and 12.

6. The request for review was, however, dismissed with the 1st respondent Review Board finding that where the tender document provides for technical evaluation criteria setting out the scores to be assigned to each individual item, such criteria cannot be termed as a mandatory requirement and cannot lead to the disqualification of a bidder.

7. It was therefore upon the above decision that these Judicial Review proceedings were initiated and the exparte applicant claims that the Board’s decision contained an error of fact as the Board disregarded the tender documents’ provisions in reaching their decision.

8. On the holding that the interested party herein met all the requirements, it was contended that the 1st respondent limited itself to the evaluation report despite having all the documents before it and moreso, that the 1st respondent failed to consider the technical specifications of the machine submitted by the interested party against the machine required by the 2nd respondent. In addition, the exparte applicant complains that it was not accorded a fair hearing despite a request for the evaluation report and comparison of the technical criteria of the bids submitted, which information was only partially provided.

9. It was further contended that the 1st respondent ignored the admission of a technology expert by the interested party that they configured and or modified their machine by adding software and options to meet the specifications required for the tender, hence the prayers herein. All the above matters are contained in the statutory statement and the verifying affidavit of 28th November 2016 sworn by Salima Madhani.

10. According to the exparte applicant, the decision by the 1st respondent is unreasonable in the circumstances, considering the facts of the matter and that therefore it is in the interest of justice that the decision of the Board be quashed.

11. The 2nd respondent (Procuring Entity) filed grounds of opposition dated 27th January 2017 opposing the notice of motion and contending that there was no evidence of breach of the law and procedure which would entitle the court to intervene; that there is no evidence of breach of statutory provisions or that they acted without or in excess of jurisdiction or breached the rules of natural justice; that the application does not meet the basic tenets of Judicial Review application; that the applicant is seeking a merit review or asking the court to substitute the decisions of the court for those of the tribunal; that the reasons for dismissal of the review by the tribunal are logical, and based on evidence tendered before the tribunal and that the application is overtaken by events.

12. The interested party filed a replying affidavit sworn by Allan Kili on 30th January 2017 deposing that the application is unmerited and made in bad faith. Further, that the application is misleading in that the machine cannot be modified but only configured through addition of various options available and software as provided by the manufacturer and that the machine met the minimum specifications of the tender.

13. Further, that the interested party never submitted any machine to the 2nd respondent but the original product brochure and that there was no mention by the interested party that it will supply a modified machine to the 2nd respondent.

14. In addition, it was deposed that the interested party did not require any letter of modification from the manufacturer to modify the machine since no modification was done at all as it was not warranted.

15. That before the award of the tender, the interested party submitted the manufacture’s current authorization and original product brochure which were duly considered by the Procuring Entity.

16. Further, it was contended that the interested party is a duly authorized distributor of Konica Minolta and the manufacturer supplies the machines as per the set requirements and specifications which applied in this case.

17. It was also contended that the tenders were evaluated above board taking into consideration the objectives of the Public Procurement and Asset Disposal Act of maximizing economy and efficiency, promoting competition and to promote integrity and fairness of all the procedures. It was further contended that all the procedures were duly followed, the Board acted in good faith in the performance of its duty in order to get the best for the 2nd respondent.

18. The 1st respondent did not file any response. The parties’ advocates filed written submissions which they highlighted orally.

19. the exparte applicant framed 2 issues for determination namely:

i. whether or not the 1st respondent’s decision had errors of fact; and

ii. secondly whether the 1st respondent considered all the documents before it in making findings that the interested party met the 80% pass mark.

20. On the issue of whether the decision of the 1st respondent had errors of fact, it was submitted that the findings that the technical evaluation criteria was not mandatory and that it could not lead to disqualification of the bidder was erroneous because the note at page 76 of the bid documents is clear that the bidder must exceed or meet the set specifications and that the weight is mandatory hence the bidder must have passed all the technical scores before moving into the financial stage.

21. It was submitted that for a party to meet 80% required , they had to meet all the requirements under the technical specifications and that is why the tender evaluation committee disqualified XRX Technologies because it did not meet all the technical specifications and was awarded 95% out of 100 marks.

22. In the view of the exparte applicant, the erroneous findings by the 1st respondent were that:

i. The technical specifications were not mandatory and

ii. Failure to comply with the technical specifications would not render a bid non responsive or lead to disqualification.

23. It was submitted that in making such erroneous findings the Review Board disregarded the tender document and acted contrary to the tender document and the evaluation report based on assumption which resulted in an illegality and an attempt to circumvent the tender document.

24. Reliance was placed on Blue Sea Services Ltd & Another v Public Procurement Administrative Review Board & another [2016] e KLR where the court held:

“ the one fact that cannot be denied is that the tender documents set criterion for evaluation and minimum required score to enable one proceed to the next level of evaluation. To me, failure to detect that Ollrey did not meet the minimum technical evaluation was such a glaring omission that doesn’t only defeat logic but demonstrates irrationality and unreasonableness to the extent that the tender document is by law required to conform to the legal requirement under the Act and the Constitution, that document is itself a derivative of the law and the Constitution and the force of both. Therefore, a party who flouts or tries to circumvent it , circumvents the law and to me that is an illegality.”

25. On the basis of the above authority, it was submitted that the 1st respondent was under an obligation to consider the tender document in its entirety and all the information provided by the parties.

26. Further reliance was placed on Republic vs Public Procurement Administrative Review Board & 2 Others exparte Coast Water Services Board & Another (2016) e KLRwhere the court agreed withthe holding in Zachariah Wangunza & Another v Office of the Registrar Academic Kenyatta University & 2 Others [2013] e KLRwhere it was held inter alia that where a body takes account of irrelevant considerations any decision arrived at becomes unlawful.

27. In this case it was submitted that failure by the 1st respondent to take into account relevant considerations rendered the decision unreasonable and contrary to the exparte applicant’s legitimate expectations.

28. Further, that deviation from specifications set out in the tender documents amounted to an illegality as was held in Republic vs Public Procurement Administrative Review Board & 2 Others exparte Coast Water Services Board & Another(supra).

29. Further reliance was placed onRichandson Company Ltd v The Registrar of the High Court of Kenya [2008- 2010) PPLR page 232where the Board held that a procuring entity can only use the criteria set out in the tender document for evaluation.

30. It was submitted that by ignoring the tender document, the 1st respondent in effect substituted the tender document’s provisions with its own decision.

31. On the second issue of whether the 1st respondent considered all the documents before it, it was submitted that the 1st respondent was requested to consider the bids and original machine brochures submitted by the parties to determine whether they met the technical specifications and that the Board after considering the evaluation report made a finding that the interested party and the exparte applicant herein met all the requirements which when weighed resulted in both bidders attaining 80% of the total marks.

32. It was contended that by limiting itself to the incomplete report availed by the 1st respondent, the Board failed to confirm whether the interested party was successfully evaluated in accordance with the tender document and therefore failed to consider whether the award of the tender to the interested party was proper in the circumstances.

33. It was submitted that the 1st respondent ignored the interested party applicant’s submission that they modified/added options to the machine they submitted for consideration by the Procuring Entity yet there was no letter or authority from the manufacturer allowing such modification or addition of options and that neither did the interested party indicate which modifications were made or options added hence the issue of whether the interested party’s bid met all the technical requirements was never considered conclusively by the Review Board.

34. On the question of whether the exparte applicant was afforded a fair hearing it was submitted that the Procuring Entity declined to avail technical specifications of the machine submitted by the interested party, which information was relevant for purposes of challenging the Review Board’s decision which refusal, it was submitted, violated the exparte applicant’s right to a fair hearing.

35. Reliance was placed on the Blue Sea Services Ltd & Another vs Public Procurement Administrative Review Board & Another (supra)where the court held inter alia, that where a party seeks disclosure for purposes of review or a proceeding challenging a decision by the Review Board, seeks to enforce the law and therefore fits squarely within the constitutional enactment under Article 47 of the Constitution.

36. In this case it was submitted that failure to disclose violated Section 67(3) of the Public Procurement and Disposal Act and 4(3) of the Fair Administrative Action Act, 2015 as well as Section 6 of the Fair Administrative Action Act on the right to be supplied with such information as may be necessary to facilitate his or her application for an appeal or review.

37. On the interested party’s contention that the application for Judicial Review herein was overtaken by events as the contract had already been entered into/executed between the interested party and the 2nd respondent on 26th January 2017; or that the stay order issued on 15th March 2017 is pre judicial to the interested party as it had installed the machine on 5th March 2017; or that the Judicial Review application was made after a considerable delay; or that the 1st respondent’s decision was within the law and that the proceedings before the court are an appeal and erroneously premised on constitutional provisions, it was submitted that the parties hereto being the interested party and 2nd respondent were aware of these proceedings on 6th December 2016 when they were served with the application for leave, that the Judicial Review was lodged in time; that no application to strike out the application for being statute barred has been filed; that the matter was at all times adjourned by consent and that on 21st February 2017 neither the interested party nor the 2nd respondent’s counsels informed the court that a contract had been entered into on 26th January 2017.

38. Further, it was submitted in contention that the interested party was present in court through its counsel when leave and stay were granted but never mentioned that the matter had been overtaken by events hence they are estopped by their own conduct from claiming the existence of a contract prior to the court issuing the stay orders. It was submitted that the allegations that there exists a contract is mischievous and a belated attempt to deny the exparte applicant access to justice and is meant to frustrate the judicial process and render nugatory the orders of the court, which is an affront to the rule of law.

39. Reliance was placed on Alfred N. Mutua vs EACC & 3 Others[2016] eKLRwhere the Court of Appeal held inter alia that parties in court proceedings cannot be allowed to breach or pooh-pooh or render nugatory, meaningless or futile orders of the court for the simple reason that this bears directly on and in an affront to the rule of law which the court is enjoined to uphold for the benefit of society…..”

40. It was therefore submitted that any act or omission which contravenes court orders is null and void. Further, that Section 175(6) of the Public Procurement and Asset Disposal Act is clear that any disobedience of the law is null and void. Further reliance was placed on the often cited decision of Macfoy v United Africa Company Ltd [1961] 3 ALL ER, 1169 where it was held, inter alia, that where an act is void, then it is in law a nullity and that everything proceeding from a void thing is in itself incurably bad.

41. It was submitted that the interested party could not wait until the final stages of the case to claim that a contract had been executed which in itself is contemptuous of the court and which the court ought not to condone.

42. In addition, it was submitted that even if the contract were to be in existence, it offends Section 19 of the Stamp Duty Act. Further reliance was placed on Republic vs Commissioner of Lands Exparte Lake Flowers Ltd Nairobi HC Miscellaneous Application No. 1238 of 1998 where it was held that availability of other remedies is no bar to granting of the Judicial Review relief but can be an important factor in exercising the discretion whether or not to grant the relief.

43. It was therefore submitted that Judicial Review is not limited to the decision making process alone but rather with the correctness of the decision on matters of both law and fact.

44. The exparte applicant sought the orders prayed for.

45. The 2nd respondent filed submissions on 20th February 2017 dated the same day contending that the 1st respondent in rendering the impugned decision diligently and fairly considered all relevant facts, submissions and postulations of evidentiary value and declined the request for review. Further, that the decision was rational, reasonable, logical, impartial, lawful and in line with public interest, policy and mandate conferred upon it under the Regulations; that it acted within the principles of natural justice, adhered to the spirit of Section 2 of the PPADA Act, the Constitution and Article 47 on Fair Administrative Action.

46. It was further submitted that the impugned decision was rendered within 30 days and that the allegations levelled against the Board is intended to erode the level of public confidence that the Board currently enjoys. It was also submitted that the application is frivolous and poorly executed in an attempt to arm twist the court and all parties into an innocuous legal battle which is in bad faith, bad taste, lacks merit and calculated to discredit the credibility of the 1st respondent’s mandate. It was submitted that the applicant is challenging the merits of the decision which was sound and reasonable in the circumstances. Further, that the decision was regular and the Review Board acted with jurisdiction.

47. Reliance was placed on Kenya Pipeline Company Ltd vs Hyosunon regularity and jurisdiction of the Review Board.

48. On the issue of technical specifications, Miss Maina submitted that the decision was clear that a failure to comply with a particular specification would only deny the bidder marks and not to render the bidder non response. The cases of Re Bivac International SA ( Bureau Veritas) [2005] 2 EA 43; Pastoli v Kabale District Local Government Council and Others [2008] EA 300; and Republic v Kenya Revenue Authority Exparte Yaya Towers Ltd [2008] e KLR were cited to support the arguments that the Review Board’s decision cannot be challenged on its correctness before a Judicial Review Court.

49. In this case it was submitted that there was no evidence that there was jurisdictional error that the decision was unreasonable irrational. Further, that the orders sought are discretionary and that it was in the public interest that the court declines the issuance of the Judicial Review orders sought as there is no demonstration that any procedure was not followed or that the respondents were in breach of any statutory provision or acted without or in excess of jurisdiction or breached the Rules of natural justice.

50. In opposition to the motion, the interested party submitted relying wholly on the affidavit in reply sworn by Mr Allan Kili its Sales Manager filed on 30th January 2017 and a further affidavit sworn on 3rd April 2017 and written submissions filed on 3rd May 2017 and maintained that the application was overtaken by events as a contract had been executed between the interested party and the Procuring Entity on 26th January 2017; that the decision was within the law and that the application before court was in fact an appeal and erroneously premised on constitutional provisions. The rest of the submissions are reiteration of the replying affidavit and which need not be reproduced here.

51. In a rejoinder, the exparte applicant’s counsel submitted that they were not appealing and relied on Republic vs Commissioner of Lands exparte Lake Flowers Ltd (supra)which case, he submitted, identifies instances in which a court can intervene in Judicial Review’s and maintained that this case falls under those considerations set out in the above authority.

DETERMINATION

52. I have considered the foregoing and in my humble view, the issues for determination are as isolated by the exparte applicant with some ancillary questions to be answered. Before delving into the issues and questions, it is important to appreciate the parameters in which Judicial Review remedies are available. Judicial Review, by definition, is a process by which the High Court or any other court exercises supervisory jurisdiction over an inferior tribunal, body or authority in their exercise of quasi or judicial functions or who are charged with the performance of administrative acts and or statutory duties.

53. Generally, Judicial Review is a challenge to administrative action or decision, through this court’s invocation of Sections 8,9 and the Law Reform Act, Article 165 (6) of the Constitution and the provisions of Article 47 of the Constitution as implemented by the Fair Administrative Action Act, 2015.

54. Judicial Review, however, is no longer that common law remedy or writ. It is now a constitutional remedy espoused in Articles 22 and 23 of the constitution and embedded in many other statutes.

55. Certiorari is the main and most common Judicial Review remedy. It is invoked to quash illegal or irregular, irrational or unreasonable; and procedurally improper decisions or proceedings as well as proceedings or decisions which are commenced or made by an administrative body or authority without jurisdiction, or in excess of jurisdiction.

56. Declarations which are sought in this case are also statutory Judicial Review remedies espoused in the Fair Administrative Action Act, 2015.

57. A pertinent question was raised in this matter and which Iam obliged to determine before embarking on the substantive prayers sought under the rubric of the issues as framed by the exparte applicant and which issues I find to be sufficient enough to determine these proceedings. The interested party and the 1st respondent filed their responses to these proceedings on 30th January 2014 respectively and apart from the 2nd respondent Procuring Entity stating in its ground of opposition No. 6 that the application is overtaken by events, did not elaborate on what events had been overtaken.

58. On the part of the interested party, no event was mentioned to have been overtaken. However, in the further affidavit filed and sworn by Allan K. Kili on 3rd April 2017, it was deposed by the interested party that the Judicial Review is overtaken by events as the contract was already executed between the interested party and the 2nd respondent on 26th January 2017; and that the interested party was prejudiced by the stay order issued on 15th March 2017 because it had already installed the machine on 5th March 2017. In the submissions at the hearing of the substantive notice of motion on 29th May 2017 and at the earlier hearing of the application for leave to institute these Judicial Review proceedings which application was canvassed orally on 15th March 2017 and a ruling made on the spot, the interested party was represented by Mr Tombe holding brief for Mr Bosire. He never mentioned that there was any contract entered into between his client and the 2nd respondent and if that were the case, the court would have first inquired into that issue before proceeding to consider the merits of the chamber summons for leave and the granting stay of implementations of the decision until the substantive motion was filed, heard and determined. Court orders are never issued in vain. It would therefore have been essential that the interested party discloses at the earliest opportunity, that a contract had been executed to avoid this lengthy process which would be a waste of court’s resources and the parties’ time and labour.

59. That notwithstanding, I have no doubt in my mind that the application for leave and the substantive notice of motion were filed within the stipulated statutory timelines of 14 days from date of the impugned decision and within the 10 days granted by the court to apply respectively. It cannot, therefore be said that the exparte applicant filed the application out of time.

60. However, in Judicial Review, time is of essence as it is statutorily underpinned such that any delay may not be remedied and delay here does not mean filing pleadings out of the statutory or stipulated time . It means to take action of challenging the decision of the Review Board as soon as possible.

61. Section 173 of the Public Procurement and Asset Disposal Act contemplates a statutory stay of 14 days from the date when the decision is made by the Board and that if no application is made to court within the said period, then the decision of the Review Board would be final. That is the legal position. However, where the application for leave is filed, and the court orders that the leave if granted operates as stay of execution of the Board’s decision, then any party who violates the terms of the stay order would be in contempt of court orders.

62. In this case, when the exparte applicant first came to court on 25th November 2016, it was clear that it filed the application on the last day (14th day) of the decision and it is for that reason that the court declined to certify the matter as urgent because the applicant did not have to wait until the last day to institute proceedings and ask for stay. I therefore directed that the application be served upon the rest of the parties for interpartes hearing on a date to be fixed in the registry. The record shows that the exparte applicant’s counsels took another 4 days before fixing a date on 28th November 2016 and when the parties appeared before me on 18th January 2017 which was the date given by the registry, Mr Ndolo counsel for the exparte applicant submitted that his office had erroneously indicated in his notice to the parties that the matter was due on 19th January 2017 which was the following day.

63. on 8th January 2017 the intended party was represented in court by Mr Tombe while Mr Akech held brief for Mr Omosa for the 2nd respondent. It is on that day that the 2nd respondent and the interested party’s counsels requested for more time to file their responses.

64. On that day 18th January 2017 Mr Ndolo sought the matter to be certified as urgent stating that he was aware that no contract had been entered into. The court declined to certify the matter as urgent the second time because it never saw any urgency in the matter and as none was disclosed in the certificate thereof. Moreso, Mr Ndolo never indicated to court that owing to the urgency, his client should be granted an interim stay on a temporary basis pending interpartes hearing. The court nonetheless shortened the period for the respondents and interested party to file their responses within 7 days and have the matter heard interpartes on 30th January 2017.

65. On 30th January 2017 when the matter came up for hearing interpartes, all parties were represented in court and the 1st respondent never opposed the application for leave. Miss Makobu counsel for the exparte applicant on behalf of Mr Ndolo sought an adjournment on the ground that she had just been served with a replying affidavit by the interested party and that they had not been served with grounds of opposition.

66. The court allowed the adjournment but there was no mention of the risk of a contract being entered into as there was no stay or undertaking not to execute a contract.

67. Even after the court granted the parties a date for oral hearing of the application on 21st February 2017, come 21st February 2017 and the applicant’s counsel was said to be before the Court of Appeal hence unable to argue the application. Mr Ndolo’s brief was held by Ms Onsongo who reported that Mr Ndolo was engaged in the Court of Appeal. The court allowed the adjournment until 15th March 2017 when Mr Ndolo appeared and argued the chamber summons upon which the court granted leave and stay of enforcement of the decision of the Review Board’s decision pending hearing and determination of these proceedings.

68. The stay was granted on the understanding that there was no contract in place but it appears that the respondents and interested party were not willing to disclose those facts to the court until the substantive application was filed and served upon them is when the interested party came up with the contract executed on 26th January 2017 and machines installed on 5th March 2017.

69. The court acknowledges that there was no stay of implementation of the decision of the Review Board until 15th March 2017 and therefore whether there was a contract entered into before that date is a matter the court cannot find to be void or illegal for reasons that there was no stay and therefore nothing precluded the interested party and the 2nd respondent Procuring Entity from executing a contract. It cannot be said, I reiterate that contract, if at all it exits, was illegal per se as the court had not pronounced itself on the legality or otherwise of the decision of the Review Board.

70. In other words, even if this court were to find in favour of the exparte applicant, from the late disclosure by the interested party that a contract has already been entered into with the second respondent, it is not viable to grant orders that would invalidate a contract which has already been executed and performed particularly where there was no stay as at the time of such execution or performance. This does not mean, however, that if the court finds that the decision of the review board was illegal, irrational; laced with procedural impropriety or ultra vires then it cannot quash that decision or declare it as such .

71. It is for the above reasons that in my humble view, the principles applicable in the Alfred N. Mutua V Ethics & Anti Corruption Commission (supra)case, however useful, would be inapplicable to these proceedings and are therefore distinguishable in the sense that it has not been shown that the parties in these proceeding breached or pooh-poohed or rendered futile, meaningless or nugatory orders of the court. And where a contract has already been performed, whether or not there was no stamp duty paid is immaterial and it would be futile to set aside a contract which has been fully performed; since here would be nothing to revert to owing to lapse of time and the performance thereof. It would be futile to order for repeat of a process, this is what this court held in HC JR190/2016 Republic vs Public Procurement Administrative and Review Board exparte The University of Eldoret and Others [2016] e KLR.

72. Having concluded that preliminary issue, I now delve into the main issues for determination namely

a. Whether the 1st respondent’s decision contained errors of fact.

73. According to the exparte applicant, the interested party bidder turned out to be non-responsive in that it never met the mandatory technical specifications set by the Procuring Entity as per the evaluation, although the Procuring Entity awarded it a tender and that despite those glaring errors the Review Board ignored the reference to the tender documents and held that the technical specifications were not mandatory and that therefore failure to comply with a technical requirement would not render a bid non response or lead to disqualification.

74. The interested party and the 2nd respondent Procuring Entity support the decision reached by the Review Board. I have read the decision of the Review Board made on 11th November 2016. At page 15 of the said decision, the Board framed two issues as follows, for determination:

i. Whether the Procuring Entity awarded the tender in question to a tenderer who did not meet the technical specifications set out in the tender document.

ii. Whether the applicant ought to have been awarded the tender on the grounds that it was the most responsive tender both technically and financially.

75. On the question of awarding the tender to a tenderer who did not meet the technical specifications set out in the tender documents, the Board noted that the exparte applicant’s contention was that the successful bidder’s tender was non responsive since the successful bidder did not annex five contracts to show that it had previously supplied similar machines and secondly that it offered equipment of an inferior quality which in the applicant’s view did not meet the requirements of the tender document.

Further, that the said specifications were part of the mandatory requirements in the tender and that having failed to meet all the technical specifications, the successful bidder’s tender ought to have been declared as non-responsive.

76. The Board after examining the contentious criteria on terms No. 3,4,9,10,11 and 12 concluded that there were 23 technical specifications which bidders were to meet and that each criteria attracted marks which were assigned to each item bringing the total marks awardable to a maximum of 100 marks.

77. Further, that the tender document expressly stipulated that in order for a bidder to qualify to proceed to the next stage of evaluation, namely the financial evaluation stage, the bidder needed to attain a pass mark of 80%.

78. The Review Board further found that both the applicant and the successful bidder met all the requirements which when weighted resulted in both bidders attaining 80% of the total marks and therefore both proceeded to the financial evaluation stage.

79. Finally, that where a tender document provides for a technical evaluation criteria setting out the scores to be assigned to each individual item, such criteria cannot be termed as a mandatory requirement and cannot lead a bidder into being disqualified from the process but that a failure to comply with a particular item of the technical specification would only deny the bidder the total or part of the marks assigned to that item but not to render the entire tender non responsive.

80. At page 6 of the report of the evaluation committee, item 1. 3.2. the Evaluation committee stated that the three(3) bids who passed stage 1 -mandatory stage were considered for technical evaluation based on the evaluation criteria set out in the tender document. Further, that the bids were objectively assessed against the set technical criteria and scored.

81. The interested party and the exparte applicant herein were scored 80% and qualified for financial evaluation. The tender documents at page 188(16) provides at item 2. 12. 2 as follows:

A) Stage one: Mandatory requirements with N/B/:“All the above must be met to qualify for the 2nd stage.”

At Page 17(189) B) stage two is the Technical evaluation and it is provided:

“ Candidates that will have passed Technical Evaluation ( i.e. those that offered items which are compliant with the desired technical specifications) will have their financial proposals evaluated.

The pass mark for technical specificationsshall be 80% (see specification schedule provided on page 25-54, part V.

82. The technical specifications are then set out in Section V pages 27, 28, 29 with weights between 1 and 20 all totaling 100 weights . On pages 28 and 29 thereof are the technical specifications required and after item No. 23, the weight given for the note is “mandatory”. The mandatory weight covers the note: The above are indicative minimum specifications only. Vendor must meet or exceed specifications. Original detailed and highlighted product brochure’s should also be attached along with written specifications.

83. From the above observations, it is clear that the technical specifications provided in the tender documents and as weighted were mandatory since they were indicative of minimum specifications. And on page 31 item 6. 1 general, the tender document gives further information to the tenderers and emphasizes at the 6:1:2 that tenderers must indicate on the specifications sheets whether the equipment offered complied with each specific requirement. At 6:1:3 it states that All dimensions and capacities of the equipment to be supplied shall not be less than those required on these specifications. Deviations from the basic requirements if any, shall be explained in detail writing with the offer, with supporting data such as calculation sheets, etc. The Procuring Entity reserves the right to reject the products, if such deviations shall be found critical to the use and operation of the products.

84. Having found that the technical specifications were of mandatory nature, the next question is whether the Review Board committed an error of fact or law in ignoring the assertion that the interested party’s tender did not meet or comply with the requirements of the tender.

85. Comparing the technical specifications required on page 28 of the tender document and the interested party’s specifications which are reproduced herein, it is clear that items on imaging technology; paper input’ scanner, supported scan media, duplex scan speed and paper delivered are at great variance and less than the minimums set by the Procuring Entity in the tender documents.

86. The Review Board in its earlier decision in Rilely Falcon Securities Ltd & Another v The Kenya Pipeline Company Ltd [2008-2010] PPLR 672 held that the evaluation of tenders ought to be in accordance with the tender document. The Board held:

“ Evaluation criteria ought to be in accordance with the tender documents and ought to be applied uniformly for the bidders- there should be no discrimination by the procuring entity- Sections 31 and 39 of the Public Procurement and Disposal Act, 2005. ”

87. This court agrees with the decision in Republic vs Public Procurement Administrative Review Board & 2 Others exparte Coast Water Services Board & Another (supra) where it was heldthat:

“ It is unlawful for the Board to adopt a procedure by which the provisions of the tender documents are by passed, in the award of tender. Where a board awards the tender in disregard of the provisions of the tender document the court would not hesitate to quash such a decision since Section 66 of the repealed Act provides that the successful tenderer shall be the tender with the lowest evaluated price. The board cannot in such circumstances justify its actions by reference to Section 98 of the repealed Act since it ought not to in effect substitute itself or the Procuring Entity in matters where the entity has addressed itself on.”

88. In this case, it is clear that the Procuring Entity (Evaluation Committee) did not even mention that it had by-passed its own technical specifications mandatory requirements, which issue was brought up in the challenge by the exparte applicant. However, the Review Board went round the issue and interpreted the tender document contrary to what the document that I have set out above stipulates, and in so doing, was in essence exercising the powers of the evaluation committee by disregarding the express provisions of the tender documents that set out mandatory minimum technical specifications which the interested party had out rightly not met.

89. Tender documents send out to bidders are an open book examination cum marking scheme for the tenderers and where the conditions set out in the said ‘questions’ is that one must get all questions matching the set out criteria, then in the event of deviation from the criteria set or the “ marking scheme” and in this case, it was important that the evaluation committee applies the criteria set out in the tender document.

90. At pages 16 and 17 of the tender document which is instructions to all tenderers on particulars of appendix to instructions to tenders, there is part (b) STAGE ONE: Mandatory requirements on page 16 and B) STAGE TWO: Technical evaluation.

Under B) STAGE TWO, it is clearly stipulated that

“ candidates that will have passed Technical Evaluation( i.e. those that offered items which are compliant with the desired technical specifications) will have their financial proposals evaluated.

The pass mark for technical specifications shall be 80% - see specification schedule provided on page 25-54, part V.

91. As earlier stated, the technical specifications required are stated item by item1-23 against weights ranging from 1-20 upto a maximum of 100 marks.

92. However, what is glaringly startling is that in the evaluation committee report which the Review Board examined during the hearing of the request for review by the exparte applicant, at page 4 of the evaluation report, the Evaluation Committee after carrying out preliminary (mandatory) Evaluation ( see page 3 paragraph 1:3:1 stated as follows:

“ the decision to disqualify bidders who failed to meet the mandatory requirements was procedural, as provided for/stated in the tender document. Out of 11 tenderers who participated, only 3 bidders qualified to the next stage i.e. Technical Evaluation stage as under listed:

The three bidders who qualified to the next stage include:

B6-MF1 document solutions

B7, Office Technologies Ltd

B11: XRX Technologies Limited.

93. The Evaluation Committee then proceeded to give reasons for disqualifying the other 8 bidders B1,B2,B3,B4,B5,B8,B9,B10. Paragraph 1:3:2 at page 6 of the Evaluation Report is the Technical Evaluation and the only statement that qualified the interested party herein is that “the three Bidders who passed stage 1 ( Mandatory stage) were considered for technical evaluation based on the evaluation criteria set out in the tender document. The bids were objectively assessed against the set technical criteria and scored. Two(2) bids met the minimum score of 80% and above and thus proceeded to state 111 Financial Evaluation.” The two bids are B6 the exparte applicant herein and B7 Officer Technologies Ltd the interested party herein.

94. Despite awarding 80% qualifying marks to each of the two bids that graduated to the Financial Evaluation stage, there is absolutely no evidence that the Evaluation Committee compared the interested party’s and the exparte applicant’s specifications provided and those specifications required and those specifications required or stipulated on pages 28 and 29 of the tender document and neither did the Evaluation Committee weight the respective specifications before awarding the 80% pass mark to the two(2) qualifying bidders.

95. It is for that reason that the exparte applicant upon being notified that its bid had been unsuccessful obtained the interested party’s bids and compared them with what was required (mandatorily) as stipulated on page 29 of the tender document as against what the exparte applicant had submitted and as shown by the table on page 3 of the exparte applicant’s submissions, apparently, the items listed therein a-f are items 3,4,9,10,11 and 12 of the tender document minimum specifications which the bidders were expected to meet or exceed. I have already listed the said items above.

96. Again, glaringly clear is that the interested party’s specifications were far off the required specifications compared to the exparte applicant’s yet the Evaluation Committee never mentioned or compared the same and neither did it draw any table showing the level or degree of compliance as against the weights given.

97. For example, one would ask how many marks did the exparte applicant or the interested party score at item No. 12 on paper delivery which carried the highest weight of 20 marks, noting that the interested party provided specification of 4,500 stacking capacity A 4 sheets with ability of producing up to 25 sheets booklet and 2/4 holes punch. The exparte applicants paper delivery was a stacking capacity of 5,000 maximum required by the Procuring Entity.

98. Equally, the Evaluation Committee report does not show how many marks/weight was given to item 3-imaging technology with a maximum of 5 marks/weights whereas the interested party’s specifications were 1,200 x 1200 dp1 x 8 but the exparte applicant’s machine could do 2400 x 2400 DPI with 256 gradations against the minimum required 2400 x 2400 DPI with 256 gradations.

99. The same position applies to all the other specifications which when compared clearly show that the interested party’s six out of 23 specifications fell far below the required specifications compared to the exparte applicant’s which either met all the minimum specifications as required or exceeded some like in items 9 and 11.

100. It is therefore baffling to note that the interested party, though the lowest financial bidder, was passed to go to the financial stage evaluation yet technically it never qualified to move to that stage. The tender documents require that bidder’s tenders must be compared as against each other and the required specifications (see paragraph 2:24 of the tender document at page 12 of the tender document.)

101. With the above scenario in mind, it is clear to my mind that the Review Board totally ignored to consider relevant factors in arriving at its decision and took into account irrelevant factors by purporting to qualify that which the tender documents had made expressly clear, were mandatory technical specifications requirements.

102. As was correctly submitted by the exparte applicant’s counsel, relying on Blue Sea Services Ltd & Another vs Public Procurement Administrative and Review Board & Another (supra), it cannot be denied that the tender document set criterion for evaluation and minimum required score to enable one proceed to the next level of evaluation. Failure to detect that the interested party did not meet the minimum requirement at technical evaluation stage was such a glaring omission that doesn’t only defeat logic but demonstrates irrationality and unreasonableness.

103. The tender document is by law required to conform to the legal requirement under the Act and the Constitution on transparency and accountability as the tender document is itself derivative of the law and Constitution and has the force of both.

104. Therefore, it follows that a party who flouts or tries to circumvent the tender document, circumvents the law and that circumvention of the law amounts to an outright illegality on the part of the Review Board hence amenable for judicial review. In Republic vs Public Procurement Administrative and Review Board & 2 others exparte Coast Water Services Board & Another (supra)the court citingZakaria Wagunza & Another vs Office of the Registrar Academic Kenyatta University & 2 Others [2013] e KLRthe court was categorical and I agree that where a body takes account of irrelevant considerations, any decision arrived at becomes unlawful. Unlawful behavior might be constituted by (1) an outright refusal to consider the relevant matter(11) a misdirection on a point of law,(iii) taking into account some wholly irrelevant or extraneous considerations.

105. I am in agreement with the exparte applicant’s contention that the Review Board is under a legal duty to consider all aspects of the tender document and any deviation from it ought not to be allowed unless the tender document itself allows such deviation and the Procuring Entity might explain the reasons for such deviations in the Evaluation Report.

106. In this case, page 11 paragraph 2:22 of the tender document on preliminary examination and responsiveness at paragraph 2:22:3 provides that the Procuring Entity may waive any minor informality or non-conformity or irregularity in a tender which does not constitute a material deviation, provided such waiver does not prejudice or affect the relative ranking of any tenderer. In this case there is nothing in the Evaluation Committee report to show that they applied this aspect of responsiveness to qualify the interested party for financial evaluation.

107. In addition, paragraph 2:22:4 of the tender document is clear that “prior to the detailed evaluation, pursuant to paragraph 2:23, the Procuring Entity will determine the substantial responsiveness of each tender to the tender documents. For purposes of these paragraphs, “a substantially responsive” tender is one, which conforms to all the terms and conditions of the tender documents without material deviation. The Procuring Entity’s determination of a tender’s responsiveness is to be based on the contents of the tender itself without recourse to extrinsic evidence.”

108. In this case, the Procuring Entity never provided the criteria upon which it awarded 80% pass mark on technical evaluation to both the exparte applicant and the interested party, yet the Review Board ignored the requirement.

109. In addition, there was no evidence in the Evaluation Committee report to show that it exercised any discretion with regard to the responsiveness of the two tenderers and or that it established that the tender that passed to Financial Evaluation stage was a substantially responsive tenderer (conformed to all the terms and conditions of the tender documents without material deviations), based on the tender itself without recourse to extrinsic evidence.

110. The Review board ignored all these factors and proceeded to interpret the outcome of the evaluation process contrary to its own earlier decision in Richardson Company Ltd vs Registrar High Court of Kenya in Review No.43/2008(Procuring Entity) without distinguishing it and where it held quite correctly that

“……As the Board has held severally, a Procuring Entity can only use the criteria set out in the tender Document for Evaluation. This is clearly stated in Section 66(2) which states as follows:-

“ The evaluation and comparison shall be done using the procedures and criteria set out in the tender documents and no other criteria shall be used.”

111. As was held in the Republic vs Coast Water Services Board (supra) case, Article 227 (1) of the Constitution is explicit that when a state organ or any other public entity contracts for goods and services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost effective. The court observed:

“ A procurement must therefore, before any other consideration is taken into account whether in the parent legislation or the rules and regulations made there under or even in the tender document, meet the constitutional threshold of fairness, equity, transparency, competitiveness and cost effectiveness. In other words, any other consideration which does not espouse these ingredients can only be secondary to the said constitutional dictates. In my view, the consideration of the lowest tender as a form of cost effectiveness does not infer that the Procuring Entity must go for the lowest tender no matter the results of the evaluation of the bid.

Therefore apart from the lowest tender, the Procuring Entity is under an obligation to consider all other aspects of the tender as provided for in the tender document and where a bid does not comply with the conditions stipulated therein it would be unlawful for the Procuring Entity to award a tender simply on the basis that the tender is the lowest.

It ought to be emphasized that Section 66(4) of the Repealed Act talks of “the lowest evaluated price” as opposed to merely the “lowest price”. The issue of price must therefore follow an evaluation in accordance with the tender document.”

112. The above holding was reinforced by the decision in Public Procurement Administrative and Review Board v Kenya Revenue Authority HC Miscellaneous Application 540/2008 [2008] e KLRwhere the court observed:

“ To my mind, failure by the respondents to have regard to mandatory provisions of the Act concerning procurement procedures ……..violated the purpose of the Act which is clearly stated in Section 2… I find that any breach of a mandatory statutory provision does prejudice in some way the Section 2 objectives. Adherence to the applicable law is the only guarantee of fairness and in the case of procurement law the only guarantee of the attainment of fair competition, integrity, transparency, accountability, and public confidence. There cannot be greater prejudice to the applicant than failure by the decision maker to comply with positive law. Failure to adhere to the applicable law gives rise to a presumption of bias and prejudice contrary to the argument put forward by the respondent’s counsel. The job in my view was not complete or done by just coming up with the mathematically lowest tenderer on top of the pile. The integrity of the reaching there is equally important to this court. In many cases it is procedural propriety which is the stamp of fairness….”

113. I subscribe to the above position by the learned Judge Odunga J and add that procurement is not an event or an end in itself. It is a process governed by rules and therefore how that process is conducted matters to this court in exercise of its Judicial Review jurisdiction.

114. It is my humble view that there was in fact no technical evaluation of the subject tender and that the Procuring Entity used a short cut which I find to be a wrong cut to arrive at the lowest evaluated bidder. These are the matters which an expert body like Public Procurement Administrative and Review Board ought to have considered in the applications for request for review but which it did not and which amounts to an illegality.

115. I find, that it was unreasonable and irrational for the Review Board to accept the procedure adopted by the Procuring Entity in awarding the interested party the tender. The Board rubber stamped and adopted the wrong procedure adopted by the Procuring Entity by bypassing the tender documents in the award of the tender. By so doing, the Board exceeded its lawful authority, which is subject to the review of the court. In Re Hardial Singh & Others [1979) KLR 18 the court observed inter alia that

“ The tribunals or Boards must act in good faith, extraneous considerations ought not to influence its actions and it must not misdirect itself in fact or in law.”

116. In this case, by the Board ordering the Procuring Entity to proceed and award the tender to the interested party, the Board was no doubt sanctioning an illegality by compelling the Procuring Entity to ignore the mandatory provisions in the tender documents. The Review Board has no power to compel the Procuring Entity to act contrary to the tender documents and by doing so, it exceeded its jurisdiction. The Review Board could only issue directions and make decisions that the Procuring Entity itself was lawfully authorized or permitted to issue or make.

117. On the whole, I find that the exparte applicant has made out a case on the first issue which I find in the affirmative that the 1st respondent’s decision was tainted with errors of facts and law.

118. On the second issue of whether the 1st respondent considered all the documents before it, I find that this issue has been adequately dealt with in my assessment of issue No. 1 that despite the tender documents clearly setting out conditions for qualification to the Financial Evaluation, the Review Board adopted the technical evaluation that was no evaluation at all as there was no evidence of how the Evaluation Committee weighted the responsive tenders at the technical evaluation stage.

119. On the third issue of whether the exparte applicant was afforded a fair hearing, the exparte applicant claims that at the hearing of the request for review it requested that the technical specifications of the machine submitted by the interested party be availed for purposes of challenging the 2nd respondent’s (Procuring Entity’s) decision before the Review Board. The request which is annexed to the verifying affidavit on page 554 of the applicant’s documents was never acceded to by the 1st respondent Review Board which the applicant asserts infringed its constitutional rights to information and its rights to a fair hearing.

120. The 1st respondent never said a thing on this complaint and neither did the interested party say that it submitted its technical specifications of the machine submitted. Section 67(3) of the Public Procurement and Asset Disposal Act is clear that disclosure of information is permitted for purposes of enforcement of the law. This is in line with Article 34(b) of the Constitution on the right to access information held by another person and required for the exercise of or protection of any right or fundamental freedom.

121. Section 4(3) of the Fair Administrative Action Act, 2017 is clear that every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) Every person has the right to be given written reasons for any administrative action that is taken against him

(3) where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision ( among other) Information, materials and evidence to be relied upon in making the decision or taking the administrative action. Under Section 6(1) of the Fair Administrative Action Act, 2015, every person materially or adversely affected by an administrative action has the right to be supplied with such information as may be necessary to facilitate his or her application for an appeal or review in accordance with Section 5.

(2) The information referred d to in Subsection (1) may include:

a) The reasons for which the action was taken; and

b) Any relevant documents relating to the matter.

122. In the instant matter, the exparte applicant made a request before the Review Board for supply of the relevant documents or materials and evidence to be relied upon in making a determination or making an administration action but its request was ignored all together.

123. In my humble view, the Review Board’s conduct was contrary to the provisions of Article 50(1) of the Constitution on the right to a fair hearing and violated the express provisions of the Fair Administrative Action Act.

124. The Procuring Entity and interested party herein did not disclose what aspects of the interested party’s technical specifications met the required specifications under the tender documents. There was a blanket acceptance of the interested party’s technical specifications which were never availed for scrutiny. This court can only infer that had such specifications been availed, they would have been adverse to the interested party and Procuring Entity’s case of awarding the tender yet the Review Board once again ignored this factor and hid in the shadow of the provisions of Section 107 of the Evidence Act that he who alleges must prove.

125. In public procurement matters there is the duty to disclose and to be transparent, fair and accountable. In this case, it is crystal clear that the Review Board in refusing to consider the request for submission of the interested party’s technical specifications which qualified it to move to the Financial Evaluation stage was, in my view, in aid of the illegality committed by the Procuring Entity and consequently shielding the interested party from being unveiled as having been technically unresponsive to move to the Financial Evaluation stage. This is evidence of bias undoubtedly and hinges on the integrity of the Board in handling request for review subject of these proceedings.

126. In the end, I find and hold that the exparte applicant was not accorded a fair hearing by the Review Board. Accordingly, I would allow the exparte applicant’s notice of motion dated 22nd March 2017 and make the following Judicial Review orders in line with the assessment above:

a. An order of certiorari be and is hereby issued directed at the 1st respondent Public Procurement Administrative and Review Board to bring into this court and quash the entire decision of the Review Board delivered on 11th November 2016 in review case No.88/2016 of 24th October 2016 between MF1 Documents Solutions Ltd and Kenya Bureau of Statistics.

b. Consequently, all proceedings including the award of Tender No. KNBS/7/01/2016 -17 to the interested party Office Technologies Ltd in respect of the supply, delivery, installation, commissioning and maintenance of A3 full Colour Digital Printer at a price of shs 11,900,000 be and is hereby brought into this court and quashed and declared null and void.

c. Having quashed the decision of the 1st respondent Review Board made on 11th November 2016, there is nothing left for declaration orders to issue and therefore the prayers sought in prayers 4b,c,d, of the notice of motion which are couched in the nature of grounds in support of the notice of motion are unnecessary. The same are declined.

d. In accordance with Section 175 (7) of the Public Procurement and Asset Disposal Act, 2015, having quashed the decision of the Review Board, I order that each party shall bear their own costs of these Judicial Review proceedings.

Dated, signed and delivered in open court at Nairobi this 10th day of October, 2017.

R.E. ABURILI

JUDGE

In the presence of

Miss Daido h/b for Miss Maina for the 1st respondent

N/A for the exparte applicant

N/A for the 2nd respondent

N/A for the interested party

CA: George

Judgment delivered as the notice for delivery of this judgment was posted on the cause list and LSK website for one week and two days prior to this date notifying parties of the date of judgment and the earlier date fixed fell on a day when the court was on leave.

R.E ABURILI

JUDGE