[2022] KEHC 1214 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW DIVISION

CONSOLIDATED JR MISC. APPLICATIONS NOS. E012 & E016 OF 2022

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

-VERSUS-

PUBLIC PROCUREMNET ADMINISTRATIVE REVIEW BOARD................................1ST RESPONDENT

DIRECTOR GENERAL, KENYA NATIONAL HIGHWAYS AUTHORITY.....................2ND RESPONDENT

KENYA NATIONAL HIGHWAYS AUTHORITY................................................................3RD RESPONDENT

RIFT VALLEY HIGHWAY LIMITED...................................................................................4TH RESPONDENT

-AND-

TECNICA PROYECTOS S.A & GIBB AFRICA LIMITED CONSORTIUM.......1ST INTERESTED PARTY

INGEROP SYSTRA-CAS.............................................................................................2ND INTERESTED PARTY

-AND-

KOREA EXPRESSWAY CORPORATION (KEC)/ KOREACONSULTANTS

INTERNATIONAL CO. LTD (KCI); &APEC CONSORTIUM LIMITED......1ST EX PARTE APPLICANT

DAR-YUKSEL-AMA (A CONSORTIUM OF DAR-AL-HANDASAH

IN JOINT VENTURE WITH YUKELPROJE A.S &AMA

CONSULTING ENGINEERS LTD..........................................................................2ND EX PARTE APPLICANT

JUDGEMENT

1. Korea Expressway Corporation (KEC)/Korea Consultants International Co. Ltd (KCI); & Apec Consortium Limited (hereinafter “the 1st Applicant”) moved this court vide an application dated 8th February, 2022 seeking for ORDERS:

1. THAT an Order(s) of Certiorari do issue to bring to the High Court the decisions, order and/or directions, proceedings, contained in the 1st Respondent (namely: Public Procurement Administrative Review Board) decision dated 27th January, 2022 delivered in 28th January, 2022), or thereabouts, and/or any further adverse proceedings taken subsequent to (or on the pursuant to the said decision, orders or directions) the said decision, or proceedings by any of the Respondents for purposes of being quashed.

2. THAT and Order(s) of mandamus do issue compelling the 2nd, 3rd and 4th Respondents (the Procuring entities) to rescind any adverse decision taken as a sequence of the decisions, order and or directions in the 1st Respondent’s decision dated 27th January, 2022, and in lieu thereof, to proceed and finalise the evaluation of the tender Number KeNHA/PPP/2473/2021, for the selection of the Independent Expert (IE) Consultant for the subject project more particularly described herein below on the face of this application.

3. a)THATa further ancillary order of Mandamus to include an ancillary orders compelling the 2nd, 3rd and 4th Respondents to evaluate, or re-evaluate the bids submitted for the Request for proposals of the subject suit tender, as regards the technical and financial proposals, in adherence to the objective, substantive and scoring evaluation criteria set out in the tender documents, having regard and upholding specified/prescribed local contents, and/or compliance with the requirements of clause 3(b) and 4 (where the technical and financial proposals are matched and are in tandem).

(b) THAT alternatively and without prejudice, an Order for Mandamus do issue compelling the representatives of the 3rd Respondents in the Evaluation Committee to sign the Evaluation Report that had been done prior to the Request for Review application numbers 5 and 8 of 2022were determined by the 1st Respondent) that takes regard/consideration of the compliance with the requirements of clauses 3 and 4 of the Request for Proposals.

4. THAT an Order of prohibition be granted to prohibit the 2nd and 3rd Respondents, from disregarding the compliance requirement in Clause 3(b) and 4 of the tender while evaluating and/or re-evaluating and awarding the subject tender.

5. THAT the Honourable Court do issue any further or other orders, directions and conditions as it may find to meet the interests of justice.

6. THAT costs of these proceedings be provided for and/or alternatively the 2nd Respondent be condemned to pay the costs.

2. The application is supported by the grounds set out on the face of the application together with the Statement of Facts dated 3rd February, 2022 and Verifying and Supporting Affidavits of Engineer J.M Karanjaof even date and of 8th February, 2022. The main grounds for the application are that the 1st Applicant was aggrieved by the decision of the 1st Respondent (hereinafter “the Board”) and more so the directions given that curtailed the powers of the Evaluation Committee and were granted against one member of the Public Private Partnership (hereinafter “PPP”). It was averred that the 2nd Respondent issued a Request for Proposal (hereinafter “the RFP”) dated 17th September, 2021 for the selection of the Independent Expert for Nairobi-Nakuru-Mau Summit Highway Design, Build, Finance, Operate, Maintain And Transfer, Tender Number KENHA/PPP/2473/2021 (hereinafter “the tender”) as a Contracting Authority (hereinafter “the CA”) that had embarked upon a PPP process under the Kenyan first mover roads PPPs. That the said PPP had requirements of an Independent Expert (hereinafter “IE”) to assist in the implementation of the design, build, finance, operation, maintenance and transfer of Nairobi-Nakuru-Mau Summit Road (A8) of the project in pursuance to the Project Agreement (hereinafter “the PA”) as entered between the CA and Rift Valley Highway Limited (hereinafter “the Project Company or the PC”) on 30th September, 2020 for the implementation of the project.

3. Engineer Karanja also averred that the RFP bid document further provided that appointment of the IE would take place through an open international procurement managed by the CA under the provisions of the Public Procurement and Disposal Act, 2015 (the “PPAD Act”) in conjunction with the PC and the intention was that the procurement would take place prior to the financial close of the project. That the 3rd Respondent therefore jointly with the PC, the 4th Respondent herein, invited bidders to bid for the subject project in accordance with the provisions of the aforesaid RFP, the Public Private Partnerships Act 2013 (PPP Act), the Public Private Partnership Regulations 2014 and the PPAD Act.

4. It was his averment that the RFP bid documents further provided that the role of the IE subject of the tender was to support the successful implementation of the project though the provision of inter alia, independent certification, reviewing, monitoring, supervision and arbiter services in accordance with the PPP Act and the PPP Regulations. That the said RFP also provided that the bidders shall be required to submit three (3) covers in a single-stage process comprising Cover 1- Qualification documents, Cover 2- Technical Proposal; and Cover 3-Financial Proposal. Accordingly, the 2nd and 3rd Respondents first opened and evaluated the bidders’ qualification documents under Cover 1 and adjudged the 1st Applicant’s bid amongst others to have met the minimum qualifications.

5. Thereafter, they opened and evaluated the bidders technical proposals and informed the bidders and in particular, the 1st Applicant that their bid had met the requirements in the RFP. However, on 9th December, 2021 the financial proposals were opened and the 1st Applicant’s representative observed that there was lack of clarity with the proposed costs submitted by the bidders and contended that the other bidders remuneration costs were not reasonable to cover the minimum personnel inputs defined at conditions of eligibility for key personnel.

6. Mr. Karanja further avers that the position in law as regards the evaluation of the tender’s responsiveness that applies to this RFP is set out in Section 79(1) of the PPAD Act and that the evaluation of the tenders must be conducted on the basis of the evaluation criteria set out in the RFP documents and the PPAD Act and in a manner that is fair, equitable, transparent and fairly competitive as is provided for in Article 227(1) of the Constitution. That by a letter dated 24th December, 2021, the 2nd Respondent informed the 1st Applicant that the tender evaluation process had been invalidated by lapsing of the statutory evaluation period hence termination of the procurement proceedings which lapse was occasioned by differing opinions amongst the evaluation committee members. In the 1st Applicant’s view, the procurement process did not satisfy the requirements of Section 63 as read with Section 126(3) o the PPAD Act, and they therefore filed a request for review before the Board.

7. In its decision, the Board made findings that the evaluation ends once the Executive Committee prepares and signs an evaluation report containing a summary of evaluation and comparison of tenders and recommendation of award in the absence of any evident contrary action taken by Executive Committee. It therefore follows that the evaluation of tenders does not include all other processes after the conclusion of an evaluation process as contained in the Evaluation Report that is prepared and signed by the Evaluation Committee.

8. In the 1st Applicant’s view, the Board in its analysis, decision and the directions acted ultra vires its jurisdiction by encroaching the mandate of the procuring entity’s Evaluation and Tender Committee. Further, it trashed a breach of mandatory requirement as inconsequential and failed to appreciate that their decision was discriminatory and unfair both procedurally and substantively as concerning the result. The 1st Applicant further contended that the decision was irrational and arbitrary in that it attempted to reverse the Evaluation Committee’s Evaluation Report signed by members of the Evaluation Committee appointed by the 2nd Respondent under the PPAD Act. It was also their contention that the Board failed to appreciate that the tender in issue was flowing from a PPP agreement that is regulated by the PPP Act and PPP related legal regime. Furthermore, that this was a joint evaluation by the 2nd and 3rd Respondents on one part and the 4th Respondent on the second part.

9. Lastly, that the Board further erred in law and fact when it ordered and directed that the 2nd Respondent completes the procurement process of the said tender to its logical conclusion including the making of an award to the tender within fourteen (14) days from the date of the decision. In the 1st Applicant’s view, the Board overlooked the right of appeal by judicial review proceedings as envisaged under Section 39 of the PPAD Act and Article 50(1) of the Constitution or any party having itself been aggrieved by the instant decision. Engineer Karanja therefore urged that the application be allowed.

10. 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 pursuant to leave granted on 9th February 2022 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.

11. 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.

12. 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.”

13. 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.

14. 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.

15. 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.

16. 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.

17. The 2nd 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.

18. 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.

19. 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.

20. 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

21. The 1st Respondent opposed both applications through the Replying Affidavit of Stanley Miheso sworn on 3rd March, 2022. The deponent is a Senior Officer in the Secretariat of the Board. He stated that the said tender was advertised on 17th September, 2021 and the deadline for submission of the tender documents was 8th November, 2021 at 1100hrs whereby a total of seven (7) bids were received and opened by the Tender Opening Committee. Thereafter, the Evaluation Committee finalized the review of the Technical proposals on 3rd December, 2021 and all bidders were invited to the opening of the Financial Proposal on 9th December, 2021. However, on 24th December, 2021 all the tenderers were notified that the subject tender had been terminated on the grounds that the evaluation process had been invalidated by the lapse of the statutory evaluation period.

22. Aggrieved by the said decision, the 1st Applicant lodged a Request for Review No. 05/2022 dated 5th January, 2022 seeking an order of cancellation of the communication contained in the letter dated 24th December, 2021 and also an order that the procurement entity do complete the procurement to its logical conclusion. That the 1st Interested Party also filed a Request for Review No. 8/2022 dated 7th January, 2022 seeking similar orders which two requests were consolidated and heard together. It was averred that on 27th January, 2022, the Board cancelled and set aside the letter dated 24th December, 2021 terminating the procurement process. That the Board further directed the 2nd Respondent conduct a re-evaluation at the Financial Evaluation Stage of all the financial proposals of the tenderers who made it to the Financial Evaluation Stage which procurement was to be completed within 14 days of the Board’s decision.

23. Mr. Miheso averred that the Board afforded the parties an opportunity to file and urge their respective positions, observed the rules of natural justice, acted within its jurisdiction and considered relevant factors and applicable law and principles in reaching a considered determination. He therefore urged that the application be dismissed.

24. The 2nd and 3rd Respondents also opposed the motions through the Replying Affidavit of Eng. Kefa Seda sworn on 17th February, 2022. The deponent is the Deputy Director, Public Private Partnership at the Kenya National Highways Authority. He deponed that in line with its mandate, the Authority entered into a project agreement under the Public Private Partnership Act, 2013 with the Project Company, the 4th Respondent herein on 30th September, 2020 for the Design, Build, Finance, Operate, Maintain and Transfer of Nairobi-Nakuru-Mau Summit Highway (the Project) whereby the 3rd and 4th Respondents would jointly procure an IE to offer consultancy services during the construction, operation and maintenance period of the project. That in the absence of guidelines envisaged under Regulation 56 of the PPP Regulations 2014, the procurement was undertaken in accordance with the provisions of the PPAD Act and its attendant regulations.

25. It was his deposition that the 2nd Respondent tendered for the subject project through an advertisement in the dailies and in line with Section 75 of the PPAD Act, three (3) addenda and three (3) clarifications were issued on diverse issues which formed part of the bidding document. Thereafter, the tender was closed on 8th November, 2021 at 1100hpurs and seven (7) bids were received and opened in line with Section 78 of the PPAD Act. That a Tender Evaluation Committee was appointed on 15th November, 2021 which evaluation process was carried out in accordance with the criteria set out in the RFP pursuant to Section 80(2) of the PPAD Act and which evaluation was carried out in two (2) stages namely completeness and compliance check and technical evaluation.

26. He averred that in the completeness and compliance check stage, the qualification documents were first checked for completeness and to confirm compliance with the requirements of the RFP and out of the seven (7) bidders, only four (4) bids were responsive hence subjected to a detailed Technical Evaluation. That the Evaluation Committee examined the technical proposals submitted by all four (4) bidders who all attained the minimum score of 70% and upon approval of the technical evaluation report by the Director General, opened the financial proposals of the four (4) firms that were successful.

27. It was his averment that the financial proposals were virtually opened on Thursday, 9th December, 2021 at 1100 hours and done pursuant to the requirements of the RFP that is clause 3(b). However, the Committee members representing the PE deliberated on the analysis and there was dissenting opinion in regards to conduct of financial proposals stemming from a gap in the tender document which caused difference in the interpretation of the RFP provisions regarding financial proposal evaluation. As such, the Committee was unable to conclude the financial evaluation leading to the expiry of the evaluation period thus rendering the process invalid and vide a letter dated 24th December, 2021, the PE notified all the bidders who submitted tenders of the termination of the evaluation process.

28. Aggrieved by the said decision, the 1st Applicant filed a request or review being Application No. 5 of 2022 before the Board which was consolidated with Application No. 8 of 2022 filed by Tecnica Y Proyectos S.A and Gibb Africa Limited Consortium. Upon considering the pleadings filed by the parties, the Board rendered its decision on 27th January, 2022 wherein it cancelled and set aside the termination of the subject tender procurement proceedings and directed the Evaluation Committee to re-evaluate the subject tender at the Financial Evaluation stage in accordance with the Tender document. In conclusion, he averred that at the financial proposal opening, the Evaluation Committee did not find 3 out of the 4 tenderers non-compliant as alleged by the 1st Applicant. Instead, members had different interpretation of clause 3(b) of the RFP resulting to the exercise not being completed due to effluxion of time.

29. The 4th Respondent also opposed the motions through the Replying Affidavit of Cecile Brandao sworn on 15th February, 2022. The deponent is the Acting Chief Executive Officer of the 4th Respondent. He reiterated all the averments of the 1st Respondent save to add that the evaluation of the subject tender responsiveness was done in accordance with the criteria set in the tender document. It was also his averment that the Committee evaluated the tenders in three stages.

30. At the completeness and compliance check stage, three (3) tenders were found to be non-responsive against the evaluation criteria set out at Clause (a) at page 34 of the tender document and therefore did not proceed to the next stage of evaluation. At the technical evaluation stage, all the four bidders were found to be complaint with respect to key personnel and deputies requirement prescribed in Clause 3(b) of the RFP while at the financial evaluation stage, the Evaluation Committee was required to apply the evaluation criteria set out in Clause (c) on evaluation of the financial proposals and assigning of the financial scores at page 37 of the Tender document.

31. He averred that the Committee then checked the professional fees quoted by the four tenderers and found that all of them had complied with Clause 4 at page 18 for sourcing 30% of the total consultancy fees to a local/citizen consultant. Thereafter, members of the Evaluation Committee representing the 3rd Respondent proposed to declare three of the four tenders non-compliant with the requirement of Clause 3(b) of the tender document while the 4th Respondent’s members in the Committee opposed the 3rd Respondent’s analysis in this respect noting that staff sourcing had been evaluated at the technical evaluation stage. However, in his view there was no joint evaluation by the Committee from the financial evaluation stage of the procurement process and it is therefore incorrect that only one bidder was qualified at this stage.

32. It was further his averment that the Board in determining the issue whether the stalling of the procurement process led to an expiry of the evaluation period found that it was evident that the total number of days the Evaluation Committee evaluated the tenders was a maximum of nineteen (19) days and in the circumstances, this reason was not available to the 2nd and 3rd Respondents to justify a purported termination of the subject tender’s procurement proceedings. Further, that the Board took note of the different interpretation of the criteria for evaluation at the Financial Evaluation stage by members of the Committee and directed the Evaluation Committee to re-evaluate the subject tender at the Financial Evaluation stage and the Board in arriving at its determination relied on the provisions of Article 227 of the Constitution and Section 80(2) of the PPAD Act.

33. He therefore contended that it is not correct to state that the Board acted on a misdirection and misinterpretation of the Public Procurement and Disposal (Preference and Reservations) Regulations 2011 and that the decision was marred with illegality as alleged under by the 1st Applicant or at all. That in an attempt to misrepresent the ?ndings of the Board, the 1st Applicant has failed to disclose that its bid had been evaluated at the Technical Evaluation stage and passed to proceed to the ?nancial evaluation stage.

34. In his view, the application herein is misconceived and should be dismissed on the grounds that at the time of termination of the subject Tender, the Technical Evaluation stage had been completed and the 1st Applicant’s contentions regarding the criteria applied by the Committee in the Technical Evaluation Stage are without basis since the 1st Applicant’s bid had indeed passed the Technical evaluation stage. Furthermore, the Board directed the Procuring Entities to complete the procurement process within 14 days of the Board’s decision and the application herein is therefore premature and is pre-emptive of the Committee’s decision on re-evaluation. Indeed, he averred that the 1st Applicant will have an opportunity to challenge the Committee’s decision upon re-evaluation and conclusion of the procurement process.

35. He was further of the view that the issue before the Board related to the cancellation of the Tender process due to the expiry of the timeframe allowed for the evaluation of the bids and the 1st Applicant cannot purport to inquire, on appeal, issues relating to the evaluation criteria and the ?ndings of the Committee that did not form part of the issues before the Board and over which no decision has been rendered. Indeed, it was contended that the Evaluation criteria to be considered by the Evaluation Committee in carrying out the re-evaluation is clearly set out in the RFP and is known to all bidders and the 1st Applicant’s bid was at all times subject to this criteria. Be that as it may, the 1st Applicant has not pointed out what disadvantage it stands to suffer should the criteria be utilised in the re-evaluation process. It is therefore in the interest of justice that the re-evaluation process proceeds from the ?nancial evaluation stage owing to the strict timelines and the need to expeditiously roll out the Tender for the Project that is already on course and the 1st Applicant’s prayer to have the Tenders re-evaluated from the Technical Evaluation stage are without basis whatsoever.

36. He further opined that Judicial Review Court is concerned with the decision making process of the Board and not the merits thereof whereas the Fair Administrative Actions Act allows the court to review the merits of a decision, the scope of such merit review is limited to proportionality of the decision and not for the court to substitute the decision of the administrative body with its own. In any event, he averred that the 3rd and 4th Respondents have demonstrated their intentional, concerted and long drawn out effort to ensure that the procurement process proceeds to its logical conclusion in a timeous manner. It was further urged that the 1st Applicant misapprehended the purpose of judicial review proceedings and is using the said proceedings to re-introduce issues of merit that did not form part of the decision of the Board, and which are the province of the Committee‘s decision thereby improperly using this court as an appellate court. Accordingly, it was urged the application be dismissed with costs.

37. The 1st Interested Party also opposed the motion through the Replying Affidavit of Joaquin Barba Zalvide sworn on 14th February, 2022. The deponent is the Managing Director (Africa) of Tecnica Y Proyectos, S.A. the Lead Member of the 1st Interested Party herein. She reiterated the earlier averments of the Respondents and added that the directions given by the Board did not in any way curtail the powers of the Evaluation Committee as the Board only re-stated the provisions and formulae spelled out in the RFP. Furthermore, that the RFP was issued jointly by the 2nd and 4th Respondents who also did the opening and evaluation of technical proposal. She further averred that the Evaluation Committee did not find 3 out of 4 tenders non-compliant, only the 2nd and 3rd Respondent did and this was the reason for disagreement among members of the Evaluation Committee.

38. She further deponed that the criteria that the Evaluation Committee was to apply at the Financial Evaluation stage was provided at Clause (c) and therefore the issue of what criteria to apply cannot be a ground for contention by any party. It was also her deposition that the Board was within its mandate on issuing directions to the Evaluation Committee on how it should conduct evaluation of tenders at the Financial Evaluation stage, neither did it encroach the mandate of the PE’s Evaluation and Tender Committees as it did not issue orders outside the provisions of the RFP. In any event, she averred that the decision of the Board can only be disturbed if there was demonstrated ultra vires acts or if there could be demonstrated acts of illegality, irrationality and procedural impropriety. Accordingly, she urged that the application be dismissed with costs.

Parties’ Submissions

39. The application were canvassed by way of written submissions. The 1st Applicant filed written submissions dated 25th February, 2022 and 9th March, 2022 in support of the motion. Counsel reiterated the averments in their Statement of Facts, Verifying and Supporting Affidavits and submitted that the Board’s decision was so unfair in that it interpreted its mandate to go beyond hearing and determining the main issue arising out of the parties’ pleadings that is, whether the decision to terminate the procurement covered in the letter dated 24th December, 2021 satisfied the threshold of Section 63 of the PPAD Act.

40. Further, in counsel’s view the analysis of Section 28 and 173 of the PPAD Act on powers of the Board there is no power donated by law to the Board to direct/order an evaluation Committee on how to evaluate and what criteria to use. Counsel was further of the view that the Board should have either annulled the Technical Evaluation Report and order a re-evaluation but not trash the RFP requirements as it did contrary to Section 46 and 80(3) of the PPAD Act on the powers of the Accounting Officer. Counsel further submitted that taking all the circumstances of the RFP where the technical specifications, although evaluated separately, are also to be evaluated for compliance as against the financial proposals, for the Board to disregard the decision, sweep over the guidance offered by KeNHA’s Director, is irrational, discriminatory, contrary to the principles of equity and fair competition, and acting ultra vires, given the separation of mandates enacted for the Evaluation Committee as set out under Section 80(1) and (2) of the PPAD Act, Tender Committee and the Board itself under Section 27(1), 28 and 173 of the PPAD Act.

41. Counsel further submitted that the Board erred in law and fact when it ordered the 2nd Respondent to complete the procurement process to its logical conclusion in that, the Board overlooked the right of appeal by judicial review proceedings as envisaged under Section 39 of the PPAD Act and Article 50(1) of the Constitution.

42. Counsel cited the Court of Appeal decision, Civil Appeal No. 13 of 2015, Okiya Omtatah Okoiti & Another, consolidated with Civil Appeal No. 10 of 2015, Law Society of Kenya v The Honourable Attorney General, Kenya Railways Corporation & The Public Procurement Oversight Authority whereby the Court hearing the appeal against orders of dismissal by the High Court Lenaola, J (as he then was) way too late after the SGR construction was complete and operational while the case concerned grievances over the procurement process, refused the invitation to treat the appeals as moot and /or as overtaken by the events. That the Court of Appeal recapitulated the rationale behind Article 227 of the Constitution and held that where the procurement is shown not to be so, courts have the power to intervene. Counsel therefore urged the court not to look at this matter by the artificial hair splitting distinguishment of the narrow path of the old common law albeit under the Law Reform Act as the 1st Respondent has belaboured to distinguish and to be guided by a document entitled “A Demonstration Note”at page 186-187 of their application for leave.

43. Regarding the World Bank rules, counsel argued that reference was made to the World Bank Procurement Rules to display how bids that have gaps like the 1st Interested Party’s can still undergo comparison of their financials and those of the complaint bid, so as to arrive at a far leveling of these bids, and take care of any lowly deceitful financial proposal and not negotiations as alleged.

44. It was also submitted that by the CEO being a member of the Evaluation Committee is a breach of all the principles of good governance and the PPAD Act. Counsel therefore cited the South Africa case of Millennium Waste Management (PTY) Limited v The Chairperson of the Tender Board: Limpopo Province & 2 Others (2007) SCA 165(RSA) where the Supreme Court of Appeal held that as a general principle an administrative authority has no inherent power to condone failure to comply with a peremptory requirement. Indeed, counsel submitted that when the Board faced the stalemate in evaluation and interpretation, it should have opted for a skewed and boxed up re-evaluation of the financials but a re-evaluation of both the technical and financials as the interpretation differences were overlapping both evaluations, instead of making an assumption that the bids declared responsive in technical, had evaluated their compliance with clauses 3(b) and 4(a) which is a contested issue by the two (2) sections of the Evaluation Committee.

45. The 1st Applicant submitted that it was in agreement with the 2nd 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 2nd Applicant’s position on the findings of the Board as it supported the termination of the procurement.

46. It was submitted that the PPAD Act does not recognize any public procuring entity as having the authority to pick an independent expert. It was contended that the 3rd Respondent 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. Accordingly, it was urged that the application be allowed.

47. The 2nd Applicant filed written submissions dated 23rd February,2022, 1st Interested Party skeleton submissions dated 9th March,2022 while the 2nd Interested Party filed submissions dated 2nd March,2022.

48. It is submitted that the The PPAD Act, 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. Clarification no. 1 of 7th October 2021 it was submitted required clause 3(b) to be applied at the Technical evaluation stage and therefore not open to the 2nd and 4th Respondents to purport to disagree on the same. The Board it was submitted had powers under section 173(b) of the Act to direct the reopening of Technical evaluation to enable the application of the said criterion.

49. Learned counsel submitted that as was held in the 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.

50. On the 2nd Applicant’s legitimate expectation learned counsel cited the case Republic v Kenya Revenue Authority Ex Parte Cooper K-Brands Limited |2016| eKLR.

51. 1st Respondent on the other hand filed written submissions dated 8th March, 2022 opposing the motion. Counsel submitted that the Review Board in granting the orders herein remained faithful to its powers and mandate provided under Section 173 of the PPAD Act. Be that as it may, counsel submitted that the purpose of judicial review is not to venture into the correctness or merits of the decision but the fairness of the process under which the impugned decision or action was reached.

52. To buttress that argument, counsel relied on the cases of Re Bivac International SA (Bureau Veritas) (2005) 2EA 43, Pastoli v Kabale District Local Government Council and Others (2008) 2 EA 300, Republic v Kenya Revenue Authority Ex parte Yaya Towers Limited (2008) eKLR, Seventh Day Adventist Church (East Africa) Ltd v Permanent Secretary, Ministry of Nairobi Metropolitan Development & Another (2014) eKLR, Kenya Pipeline Company Limited v Hyosung Ebara Company Limited & 2 Others (2012) eKLR, Republic v Public Procurement Administrative Board; Leeds Equipment & Systems Limited (Interested Party); Ex Parte Kenya Veterinary Vaccines Production Institute (2018) eKLR, Republic v Public Procurement Administrative Review Board & 2 Others (2019) eKLR, Kenya National Examination Council v Republic, Ex Parte Geoffrey Gathenji & 9 Others (1997) eKLR, Municipal Council of Mombasa v Republic & Another (2002) eKLR, Republic v Kenya Power & Lighting Company Limited & Another (2013) eKLR and Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others (2016) eKLR.

53. Counsel submitted that the application is an appeal disguised as a judicial review application and the same should not be entertained. Lastly, counsel submitted that judicial review orders are public law remedies and the court has the ultimate discretion to either grant the remedies or not and the 1st Applicant has not made out a case for the issuance of those orders and the same should be dismissed with costs.

54. The 2nd and 3rd Respondents on their part filed written submissions dated 8th March, 2022 opposing the motion. Counsel reiterated the averments in their Replying Affidavit and submitted that Section 126(3) of the PPAD Act obligated the 3rd Respondent to carry out the evaluation within a period of twenty-one (21) days however, the validity period lapsed and the requirement therein could not be met amounting to the procurement process being overtaken by operation of the law.

55. To that end, counsel cited the case of Lordship Africa v Public Procurement Administrative Review Board & 2 Others (2018) eKLR for the proposition that whether or not the tender documents stipulate the 21 days, the statutory provisions must be followed since they override any stipulations that may be in the Act. In view of the foregoing, counsel urged that the Authority applied the correct principles in terminating the subject procurement process in accordance with Section 63(1)(a)(i) and sought to have the application dismissed with costs.

56. The 4th Respondent on its part filed written submissions dated 28th February, 2022 opposing the motion. Counsel reiterated the averments in their Replying Affidavit and submitted that the evaluation criteria was at all material times complaint with the provisions of the tender documents and the applicable law and the criteria strictly adhered to by the Committee. Counsel further submitted that the termination of the procurement process was due to the opinion of the 2nd Respondent that the period allowed for evaluation of the tender had lapsed following different interpretation criteria for evaluation at the Financial Evaluation Stage by members of the Committee.

57. It was counsel’s submission that by Section 63 of the PPAD Act, the 2nd Respondent was by law allowed to terminate the tendering process where, in the opinion of the Evaluation Committee, the tender evaluation period had lapsed. Further, that Section 80(2) of the Act requires the Evaluation Committee to carry out the evaluation process using procedures and criteria set out in the tender documents and in the tender for professional service, having regard to the provisions of this Act and statutory instruments issued by the relevant professional associations regarding regulation of fees chargeable for services rendered. In counsel’s view, the 1st Applicant has not demonstrated how the Evaluation Committee deviated from the requirements in the Tender document in carrying out the evaluation.

58. Counsel also cited Section 126(3) of the PPAD Act which provided that evaluation shall be carried out within a maximum of twenty one (21) days. To further buttress his argument, counsel cited the cases of Parliamentary Service Commission v Public Procurement Administrative Review Board; Aprim Consultants (Interested Party) (2021) eKLR and Lordship Africa Limited v Public Procurement Administrative Review Board & 2 Others (supra) for the proposition that evaluation by a committee is only but one stage of the evaluation process and it is required to prepare a report with recommendations on the successful tender and must be done within twenty one (21) days. Indeed, counsel submitted that it is not in dispute that the Evaluation Committee did not prepare a joint evaluation report arising from the differences in opinion between members and it is in the interest of justice that the re-evaluation process proceeds from the financial evaluation stage and a report be submitted to the 2nd Respondent as required by law.

59. On the orders sought, counsel submitted that the Board in rendering its decision took note of the different interpretation of the criteria for evaluation at the Financial Evaluation stage and directed the members to re-evaluate the subject tender at the Financial Evaluation Stage. That in arriving at the said finding, the Board relied on Article 227 of the Constitution as read with Section 80(2) and Section 173 of the PPAD Act. Indeed, counsel relied on 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 powers of the Board. Counsel further cited the Court of Appeal in Kenya Ports Authority & Another v Rhombus Construction Company Limited & 2 Others (2021) eKLR on the province of judicial review especially in procurement matters. Accordingly, counsel submitted that the 1st Applicant’s dissatisfaction with the findings of the Board without specifically setting out the error in the Board’s decision cannot be a ground for judicial review. It was therefore urged that the application be dismissed with costs.

60. The 1st Interested Party also filed written submissions dated 2nd March, 2022. On the issue whether the Board had power to direct the Evaluation Committee on what criteria to use, counsel cited Section 173 of the PPAD Act on the powers of the Board. To further buttress his argument, counsel cited the cases of Republic v Public Procurement Administrative Review Board; Rhombus Construction Company Limited (Interested Party) Ex Parte Kenya Ports Authority & Another (2021) eKLR and Kenya Pipeline Company Ltd v Hyosung Ebara Company Ltd & 2 Others (2012) eKLR for the proposition that the Review Board has wide discretionary powers and better equipped than the High Court to handle disputes relating to breach of duty of procurement entity. Indeed, counsel submitted that the Board’s order to the Director General, Kenya National Highways Authority to direct the Evaluation Committee to conduct a re-evaluation in accordance with Section 80(2) and the procedures and criteria set out in the tender document was within its mandate and powers as conferred upon it by Section 28 and 173 of the PPAD Act.

61. On the issue whether the evaluation of the RFP was conducted in compliance with the Tender Document and Section 80(2) of the PPAD Act, counsel submitted that the differences that arose among members of the Evaluation Committee was on how to conduct evaluation of tenders at the Financial Evaluation stage with regard to what stage the results of the evaluation of Clause 3(b) of the RFP would be applied and the Board correctly guided the Evaluation Committee that the requirements of Clause 3(b) were not to be applied at the financial evaluation stage but rather at the technical evaluation stage. Counsel further submitted that the Board further directed that the Evaluation Committee strictly applies the criteria for evaluation of the tender as contained in Clause 6(a), (b), (c) and (d) at page 34 to 37 of the Tender Document in line with Article 227 of the Constitution and Section 80(2) of the PPAD Act.

62. In counsel’s view, the criteria for evaluation that the Evaluation Committee was to apply at the Financial Evaluation stage when evaluating the subject tender is provided for in page 37, Clause 6(c) of the RFP therefore, the issue of what criteria to apply at the financial evaluation stage cannot be a ground for contention by any party. It was further submitted that there was no joint Evaluation Report by the Committee from the Financial Evaluation stage of the procurement process hence the 2nd Respondent was incorrect in finding that only one (1) bidder was qualified at this stage. Counsel also added that the 1st Applicant’s assertion that the World Bank Guidelines on Selection and Employment of Consultants require adjustments of Financial Proposal for comparison purposes is false and intended to mislead the court and that assertion would have been true for time-based contracts but it is not the case for lump sum contracts as is the case with this subject tender.

63. Lastly, it was submitted that at the Technical evaluation stage, all four (4) bidders were compliant with respect to Key Personnel and deputies requirements prescribed in clause 3(b) of the RFP. That all the four bidders attained a minimum of 70% and thus proceeded to the next stage of financial evaluation and this position was confirmed in the Technical Evaluation Report signed by all members of the Evaluation Committee and in the letters sent to all bidders confirming their technical scores. Accordingly, it was urged that the application be dismissed.

Analysis and Determination

64. I have considered the consolidated applications dated 8th and 10th February, 2022 respectively and the affidavits both in support and in opposition thereto together with the learned submissions by counsel The following issues crystallize for determination;

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

65. The starting point in determining the propriety or constitutionality of State procurement of goods and services is Article 227(1) of the Constitution. The Article provides that when a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.

The national legislation prescribing the framework within which procurement policy must be implemented is the Public Procurement and Asset Disposal Act (hereinafter referred to as the Act) and The Public Procurement and Disposal Regulations, 2006 (hereinafter referred to as the Regulations). A decision to award a tender constitutes administrative action so the provisions of Article 47 of the Constitution and the Fair Administrative Action Act from which a cause of action for the Judicial Review of administrative action arises, apply to the process. Section 3 of the Act provides that Public procurement and asset disposal by State organs and public entities shall be guided by the following values and principles of the Constitution and relevant legislation—(a) the national values and principles provided for under Article 10; (b) the equality and freedom from discrimination provided for under Article 27;(c) affirmative action programmes provided for under for under Articles 55 and 56; (d) principles of integrity under the Leadership and Integrity Act, 2012; (d) the principles of public finance under Article 201; (e) the values and principles of public service as provided for under Article 232; (e) principles governing procurement profession, international norms; (f) maximization of value for money; (g) …and ….

An administrative decision is flawed if it is illegal. A decision is illegal if it: - (a) contravenes or exceeds the terms of the power which authorizes the making of the decision; (b) pursues an objective other than that for which the power to make the decision was conferred; (c) is not authorized by any power; (d) contravenes or fails to implement a public duty.

66. 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 extent our courts have well settled in our jurisprudence.

67. The court inRepublic v The Retirement Benefits Appeals Tribunal Ex Parte Augustine Juma & 8 Others [2013] eKLR,and whose text I find necessary to quote in extensor stated;

‘’……….. 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.”

68. 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.....’’

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

70. 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, the main prayers were 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 was that the same did not satisfy the requirements of section 63 of the Act as read with section 126(3) of the Act.

71. 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.

72. 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.

73. 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.

74. 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……..’’

75. 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.

76. The pertinent question when a dispute over termination of 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 carte blancheto procuring entities to seek refuge in section 63 even when not deservedly so.

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

29. “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…………

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.’’

78. From the foregoing, the Respondent’s finding on the issue of its jurisdiction and powers under the above cited sections in its decision of 27th day of January 2022 finds backing in both procedural and substantive law. Decided cases clearly demonstrate that 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.

79. 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.

80. 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 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.

81. 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.

82. 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.

83. 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.

84. 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.

85. 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.’’

86. The decision in R v PPARB & 2 Others Ex Parte Rongo University [2018] eKLR is apt. The court therein stated;

‘’41. A proper construction of the impugned decision, the provisions of Constitution and the Act leaves me with no doubt that the Respondents' action is firmly grounded on the law. Put differently, the ex parte applicant has not demonstrated that the Board acted ultra vires its statutory mandate. In particular, I have addressed my mind on the issues framed by the Board, while addressing the same issues raised in this case and the Boards interpretation and findings on Regulation 73 (2) (b) and section 80 (2) of the Act. It is my view that the ex parte applicant’s argument is an invitation to this court to delve into a merit review which is outside the scope of Judicial Review. Simply put, the ex parte applicant has not demonstrated illegality. Instead, he seeks to overturn the decision on merits. I decline the invitation to venture into a merit review. The impugned decision has not been shown to be ultra vires or outside its functions. In fact, a look at section 173 of the Act shows that the orders made fall within ambit and scope of the said section.’’

87. 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} eKLR heldas 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.

88. 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.

89. In view of the foregoing, both applicants have failed to achieve the threshold for the grant of the prerogative orders sought. 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