https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1334

Sintmond Group Ltd v Procurement Administrative Review Board & 3 others (Civil Appeal E445 of 2026) [2026] KECA 1334 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1334 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E445 of 2026 A Ali-Aroni, JM Ngugi & P Lilan, JJA July 10, 2026 Between Sintmond Group Limited Appellant and Procurement Administrative Review Board 1st Respondent The Accounting Officer, Kenya Electricity Generating Co. PLC 2nd Respondent Kenya Electricity Generating Co. PLC 3rd Respondent JV Of Munja Trading Limited and Marwil Energy Holding AS 4th Respondent (An Appeal from the Judgment and Decree of the High Court of Kenya at Nairobi (Ouya, J.) dated 20th day of May, 2026 in HCJR E101 of 2026) Judgment 1.This appeal arises from a long-running procurement dispute concerning Tender No. KGN-SALE-005-2025 floated by Kenya Electricity Generating Company PLC, the 3rd Respondent herein (the “Procuring Entity”) for the sale of Certified Emission Reductions (CERs), commonly known as carbon credits. The Appellant, Sintmond Group Limited, participated in the tender and was at one point found responsive in respect of Mandatory Requirement 16 of the tender document (“MR-16” or “Mandatory Requirement 16”). The dispute before us concerns the legality of what happened thereafter:whether, during due diligence, the Procuring Entity sought additional information not disclosed in the tender document, notwithstanding earlier binding determinations by the High Court that MR-16 was disjunctive. 2.The appeal is from the judgment of the High Court at Nairobi, Judicial Review Division, delivered on 20th May, 2026 in HCJR No. E101 of 2026. In that judgment, the learned Judge (Ouya, J.) dismissed the Appellant’s judicial review application challenging the decision of the Public Procurement Administrative Review Board (the “Review Board”) delivered on 23rd March, 2026. The Review Board had upheld the Appellant’s disqualification at the due diligence stage. 3.The Appellant contends that the learned Judge misapprehended the true nature of its complaint. It argues that its grievance was not an invitation to the High Court to sit on appeal over the commercial merits of the procurement decision as the learned Judge characterized it. Rather, it was a legality challenge permissible in Judicial Review: that the 3rd Respondent, the Procuring Entity and the Review Board, under the guise of due diligence under Clause 14 of the tender document and section 83 of the Public Procurement and Asset Disposal Act (“the Act), effectively reintroduced client references as a mandatory or determinative requirement, notwithstanding the earlier settled interpretation that Mandatory Requirement 16 (MR-16) could be satisfied through client references or evidence of CER/VER transactions. 4.The Respondents oppose the appeal. Their position is that the due diligence exercise was lawfully undertaken; that MR-16 was not reopened; that the Procuring Entity merely verified the Appellant’s capacity to perform a specialized carbon-credit transaction; and that the learned Judge properly declined to convert judicial review into a merits appeal from the Review Board. 5.The appeal, therefore, presents an important question on the lawful limits of due diligence in public procurement. It is common among the parties that due diligence is not ornamental: it permits meaningful verification of bidder capacity. However, due diligence is not a license to alter the rules of the procurement after bids have been submitted or to introduce new evaluative benchmarks under the cover of verification. As will emerge in this judgment, the line between lawful verification and unlawful re-evaluation is sometimes thin. This appeal requires us to draw it. 6.It calls for a careful delineation of the lawful scope of due diligence under section 83 of the Act and Clause 14 of the tender document. More specifically, the Court must determine whether, after MR-16 had been judicially interpreted in earlier proceedings, the Procuring Entity and the Review Board remained within the permissible bounds of verification during due diligence or whether, in substance, they introduced additional evaluative criteria not disclosed in the tender framework. The answer to that question necessarily implicates broader principles of legality, transparency, fairness, and equality of treatment in public procurement. 7.We begin with the procedural history, because the path taken by this dispute is not merely chronological background. It is central to understanding whether the meaning of MR-16 was reopened indirectly at the due diligence stage as the Appellant claims. 8.The dispute has had an unusually protracted procedural history, involving multiple rounds of review before the Review Board and multiple judicial review proceedings before the High Court. That history lies at the heart of the present appeal because the Appellant’s principal complaint is that the Procuring Entity and the Review Board acted inconsistently with legal determinations made in the earlier rounds of litigation. 9.As aforesaid, the dispute began with Tender No. KGN-SALE-005- 2025, issued by the Procuring Entity for the sale of CER generated from its renewable energy portfolio. The procurement involved a highly specialized commercial market concerning carbon-credit monetization and international emissions trading. The Appellant, Sintmond Group Limited, submitted its bid in response to the tender. During the evaluation process, a dispute arose concerning the meaning and application of MR-16, a requirement intended to establish bidder experience in handling CER or Voluntary Emission Reduction (VER) transactions. 10.The first significant adjudicative intervention occurred in Request for Review No. 90 of 2025 before the Review Board. In those proceedings, the Review Board was called upon, among other things, to interpret MR-16 and determine the nature of compliance required of bidders. The Review Board interpreted MR-16 as disjunctive rather than conjunctive. In practical terms, this meant that a bidder could satisfy the requirement by furnishing either client references or documentary evidence of prior CER/VER transactions, or both. That interpretation became foundational to the subsequent litigation. 11.Thereafter, disputes persisted regarding the evaluation process and the treatment of the Appellant’s bid, resulting in further proceedings before the Review Board in Request for Review No. 97 of 2025. 12.The outcome of those proceedings was challenged before the High Court in HCJR No. E351 of 2025. In that matter, the High Court examined, among other issues, whether the Review Board had properly appreciated the significance of the earlier interpretation of MR-16 and whether the Procuring Entity had remained faithful to the disclosed tender criteria. 13.The High Court quashed the impugned Review Board decision and remitted the matter for reconsideration. In doing so, the Court underscored the importance of adherence to the tender framework and cautioned against procurement decision-making that effectively alters disclosed criteria after bids have been submitted. 14.Following the remittal, the Review Board reheard the dispute and rendered a fresh decision. That decision, however, also became the subject of judicial challenge. The second judicial review proceeding was HCJR No. E012 of 2026. Once again, the High Court was called upon to determine whether the Review Board had properly complied with the legal framework and the Court’s earlier directions. In that case, the High Court concluded that the rehearing had not sufficiently complied with the earlier remittal directions. The court accordingly quashed the Review Board’s decision and remitted the matter yet again for fresh consideration. Importantly, in remitting the matter, the High Court emphasized that the rehearing was required to be substantive and meaningful. The court stated, in effect, that the rehearing had to be of equal quality, magnitude, and seriousness as the original proceedings and could not be reduced to a cosmetic or barren exercise. 15.It is this second remittal that directly preceded the decision now impugned before us. Following the remittal in HCJR No. E012 of 2026, the Review Board conducted a further rehearing. The rehearing focused substantially on the Procuring Entity’s due diligence process under Clause 14 of the tender document and section 83 of the Act. 16.The Procuring Entity maintained that although the Appellant had passed the threshold stage of evaluation, the due diligence exercise revealed insufficient evidence of demonstrated transactional experience and practical capacity to undertake a carbon-credit transaction of the scale and complexity contemplated by the tender. In particular, concerns were raised regarding the reliability, sufficiency, and verifiability of the documentation and references provided by the Appellant in support of its claimed prior transactional experience. 17.The Appellant, however, contended that the due diligence exercise had strayed beyond lawful verification and had become a disguised re-evaluation. Its complaint was that the Procuring Entity had effectively elevated additional references - or the functional equivalent of such references - into a decisive criterion, notwithstanding the earlier settled interpretation of MR-16. 18.On 23rd March, 2026, the Review Board delivered the decision now challenged in these proceedings. The Review Board upheld the Procuring Entity’s decision to disqualify the Appellant at the due diligence stage. While it accepted that MR-16 had previously been interpreted as disjunctive, it reasoned that the threshold eligibility under MR-16 did not foreclose further due diligence regarding actual bidder capability. The Review Board concluded that the due diligence exercise lawfully established that the Appellant had not sufficiently demonstrated the requisite experience and capacity to perform the contract. 19.Aggrieved by that decision, the Appellant commenced judicial review proceedings in the High Court through HCJR No. E101 of 2026. Before the High Court, the Appellant challenged the Review Board’s decision on multiple grounds. In broad terms, it argued that the Review Board had acted ultra vires; permitted the use of extraneous and undisclosed evaluative criteria; failed to adhere to earlier binding determinations; violated the principles of fairness and transparency under Article 227 of the Constitution; and sanctioned an unlawful due diligence exercise. 20.The Respondents resisted the application. Their position was that the Review Board had acted within its jurisdiction, properly exercised its specialist procurement mandate, and merely upheld a lawful due diligence process aimed at verifying bidder capacity. 21.In a judgment delivered on 20th May, 2026, the learned Judge (Ouya, J.) dismissed the Appellant’s application. The learned Judge held, in substance, that the Review Board had acted within its mandate and that no illegality, irrationality, or procedural impropriety had been demonstrated. The learned Judge further took the view that the Appellant’s grievance largely invited the High Court to reassess the merits of the procurement evaluation and substitute its own view for that of the specialized tribunal. The High Court declined to do so, holding that such substitution would exceed the proper limits of judicial review. It is that judgment which triggered the present appeal. 22.The procedural history set out above reveals two features of particular importance for the present appeal. First, the meaning of MR-16 had already been judicially settled in earlier proceedings. Second, the dispute in the present appeal, therefore, does not concern the abstract meaning of MR-16 so much as the legal consequences of that settled interpretation during the due diligence stage. Put differently, the central question before us is not whether MR-16 was conjunctive or disjunctive. That issue was settled earlier. The question now is whether, after that issue had been settled, the Procuring Entity and the Review Board remained within the lawful bounds of due diligence or whether they effectively reintroduced, through Clause 14, an evaluative requirement inconsistent with the settled tender framework. 23.Accordingly, this is an appeal against the High Court’s exercise of judicial review jurisdiction over the Review Board’s decision. The immediate question before us is whether the learned Judge correctly understood and exercised that jurisdiction. As the learned Judge appreciated, what was before her was not an ordinary merits appeal where the appellate court is invited to determine whether the decision under challenge was right or wrong on the evidence and the law. By contrast, the matter before the learned Judge was concerned primarily with the legality of the decision-making process, the rationality of the outcome, the lawfulness of the exercise of power, and compliance with constitutional and statutory norms. 24.However, as we recently observed in Kiplagat & Okoth Advocates v Public Procurement Administrative Review Board & 3 Others, Civil Appeal No. E401 of 2026 (unreported) (‘Kiplagat & Okoth Advocates), procurement judicial review cannot be understood through the narrow lens of pre-2010 common-law orthodoxy. The promulgation of the 2010 Constitution, particularly Articles 47 and 227 thereof, together with the enactment of the Fair Administrative Action Act, materially transformed the conceptual architecture of judicial review in Kenya. 25.Historically, judicial review in Kenya was largely organized around the classic tripartite grounds of illegality, irrationality, and procedural impropriety as articulated in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (commonly referred to as the GCHQ Case). Under that orthodox model, courts generally policed the boundaries of administrative power without closely engaging the substantive basis of administrative decisions. 26.That jurisprudential position has evolved significantly. In Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others [2016] Eklr(‘Suchan’), this Court recognized that judicial review under the 2010 Constitution is no longer confined to narrow procedural review. The Court explained that the Constitution expanded both the normative content and remedial reach of judicial review. 27.The same doctrinal development was reaffirmed in Saisi & 7 Others v Director of Public Prosecutions & 2 Others [2023] KESC 6 (KLR)(‘Saisi’), where the Supreme Court emphasized that while judicial review is not an appeal on merits, the reviewing court may engage in sufficient substantive scrutiny to determine legality, rationality, reasonableness, proportionality, and constitutional compliance. 28.In Kiplagat & Okoth Advocates, this Court applied these principles specifically to procurement disputes. The Court observed that procurement review occupies a distinctive space because procurement decisions are simultaneously technical, commercial, statutory, and constitutional. On the one hand, procurement often involves specialized assessments that courts are institutionally ill- suited to replicate. On the other hand, public procurement is expressly constitutionalized by Article 227, which requires procurement systems to be fair, equitable, transparent, competitive, and cost-effective. 29.We, therefore, held in Kiplagat & Okoth Advocates that judicial review in procurement disputes is best understood as a sui generis form of constitutional legality review. Such a review does not permit courts to transform themselves into tender committees or procurement evaluators. Yet neither does it permit courts to retreat into excessive deference whenever procurement complexity is invoked. The proper inquiry is, therefore, not whether a court may look at matters touching on substance. Rather, the question is why the court is looking at them. If the court examines substantive matters in order to substitute its own commercial judgment for that of the procuring entity, it exceeds the bounds of judicial review. But where the court engages the substantive application of tender criteria in order to determine whether the decision-maker acted within statutory limits, applied disclosed criteria, acted rationally, and complied with constitutional procurement norms, such inquiry remains squarely within judicial review. Put differently, procurement judicial review permits merits-sensitive scrutiny without collapsing into a merits appeal. 30.This distinction is especially important in cases such as the present one, where the central complaint is that the Procuring Entity and the Review Board applied undisclosed criteria under the guise of due diligence. Such a complaint cannot be resolved in abstraction from the tender framework and the manner in which the criteria were applied. A court must necessarily examine the substance of the impugned reasoning to determine whether legality has been preserved. 31.Against that jurisprudential framework, the first question before us is not whether we would have reached the same commercial conclusion as the Procuring Entity or the Review Board. Nor is it whether the Appellant was, as a matter of business reality, the best bidder. The question is narrower but legally more significant: did the learned Judge properly interrogate whether the impugned due diligence exercise remained anchored to the disclosed tender framework and the earlier settled interpretation of MR-16? Or did the learned Judge accord such broad deference to the Review Board that the Appellant’s core legality complaint was left insufficiently examined? 32.It is to that question - and to the parties’ submissions on it - that we now turn. 33.At the plenary hearing of this appeal, learned counsel, Mr. George Karuthui and Ms. Susan Munene, appeared for the Appellant; learned state counsel, Ms. Wamuyu appeared for the Review Board; learned counsel, Mrs. Oduor, appeared for the Procuring Entity; and learned counsel Mr. Seko, appeared for the 4th Respondent. Learned Counsel for the Appellant; the Procuring Entity and the 4th Respondent each briefly highlighted their written submissions, all of which they relied upon substantially. The Review Board did not actively participate beyond abiding by the record and the impugned decision. 34.Learned counsel for the Appellant submitted that the learned Judge fell into error by fundamentally mischaracterizing the nature of the dispute before the High Court. Counsel argued that the Appellant had not invited the High Court to sit as an appellate procurement evaluator or to substitute its commercial judgment for that of the Procuring Entity or the Review Board. Rather, the judicial review application raised a classic legality challenge: whether the Procuring Entity and the Review Board acted within the limits of the tender framework and the governing procurement law. 35.Counsel emphasized that the High Court wrongly treated the Appellant’s case as an impermissible merits appeal disguised as judicial review. According to counsel, that error led the learned Judge to adopt an excessively deferential posture and to avoid engaging the Appellant’s central complaint. Counsel submitted that under the post-2010 constitutional framework, and especially following the jurisprudence in Suchan, Saisi, and this Court’s decision in Kiplagat & Okoth Advocates, judicial review is no longer confined to narrow procedural review. Courts are entitled – and, indeed, are obligated - to undertake sufficient substantive scrutiny to determine legality, rationality, and constitutional compliance. 36.Turning to the core complaint, counsel for the Appellant submitted that the Procuring Entity unlawfully used Clause 14 of the tender document and section 83 of the Act as vehicles to conduct a second technical evaluation under the guise of due diligence. While counsel readily accepted that due diligence is a lawful and important component of procurement, he argued that its function is limited to verification of representations already made by bidders and that it cannot be used to introduce new evaluative criteria after bid submission. In counsel’s submission, this is precisely what happened in the present case. Counsel argued that the Procuring Entity effectively elevated additional client references - or the functional equivalent thereof - into a decisive benchmark of qualification despite earlier binding determinations that MR-16 was disjunctive. Since MR-16 had already been interpreted to permit compliance through either client references or evidence of prior CER/VER transactions, counsel submitted that the Procuring Entity could not lawfully insist, directly or indirectly, on additional references as a determinative requirement. 37.Counsel argued that while the Review Board retained authority to rehear the matter upon remittal, it lacked jurisdiction to reopen or circumvent the settled legal interpretation that MR-16 was disjunctive and that the Review Board could not do directly - namely, restore client references as a mandatory requirement; it equally could not do indirectly through due diligence. 38.Counsel for the Appellant also addressed the standstill issue under section 175 of the Act. It was the Appellant’s submission in this regard that unless judicial review proceedings trigger automatic suspension of procurement, the right to judicial oversight becomes vulnerable to practical defeat because contracts may be executed before courts determine legality. Counsel urged the Court to adopt an interpretation of section 175 of the Act that safeguards meaningful judicial review. 39.Learned counsel for the Procuring Entity opposed the appeal and urged the Court to uphold the judgment of the High Court. Counsel submitted that the Appellant’s grievance remained, at bottom, dissatisfaction with the procurement outcome rather than proof of illegality or irrationality. In counsel’s view, the learned Judge correctly appreciated the limits of judicial review and properly declined to substitute the Court’s assessment for that of the specialized procurement tribunal. 40.Counsel rejected the Appellant’s characterization of the due diligence exercise as an unlawful re-evaluation. It was submitted that section 83 of the Act expressly permits meaningful due diligence and that such due diligence is not limited to mechanical authentication of documents. Rather, counsel argued, due diligence enables the Procuring Entity to verify whether a bidder genuinely possesses the technical, commercial, and operational capacity represented in its bid. Counsel emphasized that this procurement involved highly specialized carbon-credit transactions with substantial commercial complexity. In such a context, counsel argued, mere threshold compliance with a mandatory requirement cannot automatically establish actual capability to perform the contract. According to counsel, there is a material distinction between satisfying an eligibility requirement and demonstrating real- world ability to execute a complex commercial transaction. 41.On the interpretation of MR-16, counsel for the Procuring Entity accepted that the earlier proceedings had determined the requirement to be disjunctive. However, counsel submitted that this settled only the threshold question of eligibility. It did not extinguish the Procuring Entity’s power during due diligence to examine whether the documentary evidence relied upon by the Appellant genuinely established successful prior experience of comparable transactions. According to counsel, the Review Board did not reintroduce client references as a mandatory requirement. Rather, it evaluated the totality of the due diligence material and concluded that the evidence produced by the Appellant failed to sufficiently demonstrate the actual transactional capacity, scale, complexity, and reliability required by the tender. 42.Counsel further submitted that the remittal orders issued in HCJR No. E012 of 2026 required a meaningful and substantive rehearing, thereby preserving substantial adjudicative latitude for the Review Board. According to counsel, the Review Board faithfully discharged that mandate and remained within jurisdiction. 43.On the standstill issue, counsel for the Procuring Entity relied heavily on this Court’s decision in Kiplagat & Okoth Advocates. Counsel submitted that the statutory framework draws a deliberate distinction between section 168 proceedings before the Review Board, which trigger automatic suspension, and section 175 proceedings before the courts, which do not. Accordingly, counsel argued that judicial proceedings under section 175 of the Act do not automatically halt procurement absent express interim court orders. 44.Learned counsel for the 4th Respondent substantially aligned with the submissions of the Procuring Entity. Counsel urged the Court to dismiss the appeal and argued that the Review Board’s decision reflected a lawful exercise of procurement oversight rather than an unlawful alteration of tender criteria. 45.As we see it, the appeal substantially turns on a single central question, though that question manifests through several doctrinal strands. The essential inquiry is whether the Procuring Entity and the Review Board, while ostensibly conducting due diligence under Clause 14 of the tender document and section 83 of the Act, remained within the lawful bounds of verification or instead crossed into impermissible post-bid re-evaluation by applying criteria not disclosed in the tender framework. 46.Before addressing that question directly, however, it is necessary to consider a threshold issue: whether the learned Judge correctly apprehended the nature of the Appellant’s complaint before the High Court. This is important because our review of the impugned judgment suggests that the learned Judge’s characterization of the dispute materially shaped her analysis and ultimate conclusion. 47.A recurring theme in the High Court judgment is the learned Judge’s view that the Appellant was effectively inviting the Court to re-evaluate the merits of the procurement decision and substitute its own assessment for that of the Procuring Entity and the Review Board. The learned Judge declined to undertake such an exercise, emphasizing the limited nature of judicial review and the specialist role of the Review Board in procurement disputes. 48.In principle, the learned Judge was correct to begin from a position of judicial caution. Procurement disputes often involve technical, financial, commercial, and operational assessments that courts are not institutionally best placed to undertake. The Review Board exists precisely because Parliament recognized the need for specialized adjudicative expertise in procurement disputes. However, as this Court recently emphasized in Kiplagat & Okoth Advocates, the necessary judicial caution in procurement review cannot be conflated with judicial abdication. Courts must accord due deference to specialized tribunals, but they must not retreat from their constitutional duty to ensure legality, rationality, and fidelity to procurement norms. 49.The danger of excessive deference is especially acute in procurement disputes because many legality complaints are embedded in the substantive application of tender criteria. If courts were to decline scrutiny whenever such scrutiny touches on matters of commercial substance, the result would be that many unlawful procurement decisions would become effectively immune from meaningful review. 50.That is why, in Kiplagat & Okoth Advocates, this Court emphasized that procurement judicial review is best understood as a sui generis form of constitutional legality review. Such review does not authorize courts to become substitute evaluators or pseudo- tender committees. Yet it does require courts to engage sufficiently with the substance of procurement reasoning where necessary to determine whether the decision-maker acted within statutory and constitutional bounds. The crucial distinction, therefore, is not between “procedure” and “merits” in the abstract. That distinction, while useful at a high level, can sometimes obscure rather than illuminate the real inquiry. The more useful distinction is between two very different judicial exercises: The first is impermissible substitution after de novo merits review, where a court asks itself whether it would have reached the same commercial or technical conclusion as the procuring entity and then replaces the procuring entity’s judgment with its own. That exercise lies outside judicial review. The second is permissible legality scrutiny: where a court examines how tender criteria were applied in order to determine whether the decision-maker remained within the disclosed framework acted rationally, and complied with constitutional procurement principles. That exercise lies squarely within judicial review. 51.We agree with the Appellant that the present dispute plainly falls into the second category. The Appellant’s complaint before the High Court was not properly understood, that the Procuring Entity made the wrong business judgment about carbon-credit transactions. Nor was the Appellant asking the High Court to decide whether its bid was commercially superior to those of competing bidders. Rather, the Appellant’s complaint was that the Procuring Entity and the Review Board applied an evaluative benchmark that had not been disclosed in the tender document and that was inconsistent with the settled judicial interpretation of MR-16. That complaint goes directly to legality not to merits appeal simpliciter. 52.Determining whether such a complaint is well-founded necessarily requires some engagement with the substance of the impugned reasoning. One cannot determine whether undisclosed criteria were used without examining the criteria actually applied. Such scrutiny is not appellate substitution; it is legality review. Consequently, with respect, we are not persuaded that the learned Judge sufficiently appreciated this distinction. The impugned judgment suggests that once the Court became satisfied that the Review Board had undertaken an exercise labelled “due diligence,” the learned Judge accorded broad deference to the Review Board’s conclusions without fully interrogating whether the particular considerations relied upon during that exercise remained anchored to the disclosed tender framework. 53.In our respectful view, that approach risked collapsing two separate questions into one. The first question was whether the Procuring Entity had authority to conduct due diligence. The second, and more important, question was whether the specific due diligence undertaken in this case remained within lawful limits. The answer to the first question does not automatically answer the second. In assuming that it did, the learned Judge erred. 54.The Appellant does not dispute that the Procuring Entity has due diligence power. Indeed, counsel expressly accepted that section 83 of the Act and Clause 14 of the Tender Document permit due diligence. The real dispute concerned the lawful scope of that power. It is, therefore, to the nature, purpose, and lawful limits of due diligence that we now turn. 55.The Appellant advances a relatively narrow conception of due diligence under section 83 of the Act. Its argument is that due diligence serves a limited and essentially verification function. On that view, once a bidder has satisfied the published tender requirements, the Procuring Entity may verify the authenticity of the representations made but may not use due diligence to reopen evaluation or introduce fresh qualitative benchmarks not disclosed in the tender document. 56.On the other hand, the Respondents advance a broader conception of due diligence. They argue that due diligence is not confined to clerical verification of documents or superficial authentication of representations. In their view, due diligence permits meaningful inquiry into whether a bidder genuinely possesses the technical, operational, financial, and commercial capacity represented in its bid. under this approach, due diligence may involve substantive scrutiny of bidder capability so long as the Procuring Entity does not act irrationally or capriciously. 57.In our view, the resolution of this dispute must begin with first principles. Section 83 of the Act empowers a procuring entity to undertake due diligence before the award of a tender in order to verify the qualifications of the successful bidder. The statutory conferral of this power reflects an important practical reality of procurement: documentary compliance at the evaluation stage does not always guarantee actual capacity to perform the contract. This is especially true in complex, specialized, or high-value procurements such as the present one. Carbon-credit trading is not a routine commercial activity. It involves highly specialized technical and commercial expertise; engagement with international counterparties; regulatory compliance across jurisdictions; complex verification mechanisms; and exposure to significant financial risk. It would, therefore, be absurdly artificial to suggest that a procuring entity, having reached the due diligence stage, is limited to merely checking whether documents physically exist. 58.In that sense, we agree with the Respondents that due diligence is intended to be a meaningful process of inquiry, verification, and assessment that necessarily calls for the exercise of informed judgment and cannot be confined to formalities alone or treated as a perfunctory procedural ritual. If due diligence meant nothing more than confirming that documents submitted during evaluation are genuine copies of existing documents, its practical value would be severely diminished. The statute and clause 14 of the Tender Document plainly contemplate something more meaningful than bureaucratic box-ticking. 59.Recognizing that due diligence is not a sterile or mechanical exercise, it becomes necessary to delineate its lawful scope and limits. Because the parties devoted considerable attention to this issue and because it is likely to recur before the Review Board and the courts, we consider it useful to articulate more fully the juridical nature, purpose, and lawful limits of due diligence in public procurement. 60.Section 83 of the Act recognizes an important practical reality of modern procurement: documentary compliance at the evaluation stage does not invariably equate to actual capacity to perform. A bidder may submit formally compliant documentation and yet lack the technical competence, operational capability, financial ability, or institutional reliability necessary to execute the contract. In that sense, due diligence serves an important public purpose. It protects public resources by permitting a procuring entity to look beyond paper compliance and test the credibility of the representations made by the preferred bidder. This is especially important in specialized, technical, or high-value procurements where the cost of non-performance is potentially enormous. It follows, in our view, that due diligence, properly understood, permits meaningful substantive inquiry into the authenticity, reliability, and probative value of the material supplied by a bidder. 61.Thus, depending on the nature of the procurement, a procuring entity may verify the authenticity, reliability and probative value of documents relied upon by a bidder; inquire into the size, complexity and successful completion of previous transactions; test whether those transactions genuinely demonstrate the financial, institutional and technical capacity represented in the bid; contact previous counterparties where appropriate; authenticate certifications; and seek clarifications reasonably necessary to determine whether the bidder possesses the capability claimed. 62.However, recognition of meaningful due diligence immediately raises a second and equally important question: what are its limits? The answer to that question lies in the constitutional architecture of public procurement. Article 227 of the Constitution requires procurement systems to be fair, equitable, transparent, competitive, and cost-effective. Embedded within these values is a fundamental requirement of procurement fairness: bidders must know in advance the criteria by which they will be assessed. That requirement serves several constitutional purposes: it promotes equality of treatment among bidders; restrains arbitrariness; prevents hidden criteria; and preserves the integrity of competitive bidding by ensuring that all participants compete on a common and predictable framework. 63.It follows that while due diligence may deepen scrutiny of disclosed criteria, it may not alter the tender architecture itself. This, in our view, is the central limiting principle. Put differently, due diligence is a verification power; not a fresh evaluation power. This distinction is critical. Verification involves testing whether what the bidder represented is true, authentic, reliable, and probative of the claimed qualification. Re-evaluation, by contrast, occurs when the procuring entity introduces new thresholds, new benchmarks, or new standards not disclosed in the tender document and uses them to determine eligibility or award. Differently put, due diligence undoubtedly involves evaluative judgment. A procuring entity is not confined to mechanically authenticating documents. It is entitled to evaluate whether the evidence produced genuinely demonstrates the capability claimed by the bidder. However, that evaluative function remains tethered to the disclosed tender criteria. It becomes impermissible only when it introduces a new criterion, new benchmark or new mode of compliance that bidders were not told in advance would determine the outcome. A procuring entity is entitled, during due diligence, to conclude that evidence tendered under a disclosed criterion is insufficiently persuasive to establish the capability claimed. What it may not do is require the bidder to prove that capability through a different criterion or a different category of evidence than that prescribed by the tender document. 64.In practical terms, due diligence may ask: Is this representation true? Is this certificate authentic? Did this transaction actually occur? Did this contract exist? However, due diligence may not ask - unless the tender document expressly allows it - is: Can we now require stronger evidence? Can we impose a higher threshold? Can we introduce a new benchmark of satisfactory capacity to make sure we get the right bidder? These are impermissible inquiries under due diligence. 65.Comparative jurisprudence, though not always framed in the language of “due diligence,” provides useful guidance on the lawful limits of post-tender verification. For example, in SAG ELV Slovensko a.s. v Úrad pre verejné obstarávanie (Case C-599/10), the Court of Justice of the European Union recognized that post- tender clarifications may be permissible where they merely clarify or verify existing bid material, but not where they permit substantive modification of the bid. Similarly, in Manova GmbH v Stadt Halle (Case C-336/12), the same Court held that post-submission inquiries are lawful where they clarify or authenticate existing material but become impermissible where they allow substantive supplementation or improvement of the bid. Further, in Universale- Bau AG v Entsorgungsbetriebe Simmering GmbH (Case C- 470/99), the same Court emphasized that contracting authorities must disclose all criteria intended to influence award decisions. These authorities, though arising from different statutory frameworks, reflect a common principle that resonates with Article 227 of our Constitution: post-tender verification may clarify or verify compliance with disclosed criteria, but it may not become a vehicle for introducing fresh evaluative criteria or materially altering the tender framework after bid submission. 66.We can, therefore, distil the following principles regarding due diligence under section 83 of the Act.a.First, due diligence must be grounded in lawful authority, whether statutory or contained in the tender document;b.Second, due diligence may involve meaningful substantive inquiry and is not confined to clerical verification;c.Third, such inquiry must remain anchored to disclosed tender criteria;d.Fourth, due diligence may deepen scrutiny of existing criteria but may not introduce new evaluative criteria;e.Fifth, where a tender document expressly provides alternative or optional modes of compliance, a procuring entity may not, under the guise of due diligence, demand documentary proof tied exclusively to one optional mode in a manner that effectively nullifies or renders illusory the alternative mode of compliance expressly permitted by the tender document;f.Sixth, courts reviewing due diligence must focus on substance rather than labels. The ultimate inquiry is functional: it whether the procuring entity is verifying the truth of disclosed criteria, or conducting a fresh evaluation using undisclosed benchmarks; andg.Seventh, where a bidder relies upon a particular mode of compliance permitted by the tender document, the procuring entity is entitled, in the course of due diligence, to rigorously interrogate the authenticity, reliability and probative value of the evidence relied upon and to determine whether that evidence genuinely demonstrates the bidder’s financial capacity, technical competence, institutional capability or experience represented in the bid. Such inquiry remains lawful provided it does not introduce a new evaluative criterion or require the bidder to satisfy the tender requirements through a different category of evidence than that prescribed in the tender document. 67.It is against these principles that the impugned due diligence exercise in the present case must now be assessed. The question before us is, therefore, not whether the Procuring Entity had authority to conduct due diligence: it plainly did. Nor is it whether its concerns regarding capacity were commercially irrational: they plainly were not. The narrower, but decisive, question is whether, in substance, the Procuring Entity permissibly remained within the domain of verification or impermissibly crossed into fresh evaluation by introducing an undisclosed criterion. The prime directive is that due diligence may involve rigorous and substantive verification of bidder capability, but such verification must remain anchored to disclosed tender criteria and may not become a vehicle for introducing new evaluative benchmarks. 68.The distinction between verification and re-evaluation may appear conceptually neat but is often difficult to apply in practice because verification and evaluation can shade into one another. A sufficiently intrusive verification exercise may become indistinguishable from re- evaluation. Conversely, an unduly narrow conception of verification can render due diligence meaningless. 69.For that reason, courts must interrogate substance rather than labels as we have guided above. Calling a process “due diligence” does not automatically make it lawful. Equally, the mere fact that due diligence involves rigorous scrutiny does not automatically render it unlawful. The inquiry is functional: what, in substance, was the Procuring Entity doing? That inquiry is best approached through a functional inquiry: was the Procuring Entity testing the truth, reliability, and sufficiency of representations already made within the disclosed tender criteria, or was it, instead, effectively requiring the bidder to satisfy additional qualitative benchmarks that had not been disclosed a priori? 70.If the exercise falls into the first category, it is likely lawful verification. If it falls into the second, it becomes impermissible post- bid re-evaluation. It is against this legal framework that we must examine the significance of Mandatory Requirement 16 and the effect of the earlier judicial determinations concerning that requirement. 71.It is imperative to return to the text of MR-16 itself, for it is that provision, and, more specifically, its settled interpretation, that lies at the centre of the controversy. MR-16 provided as follows:“Bidders shall provide at least three (3) client reference letters for similar assignments involving Certified Emission Reductions (CERs) and/or Verified Emission Reductions (VERs), and/or documentary evidence demonstrating successful CER/VER transactions undertaken by the bidder.” 72.In the earlier proceedings, a dispute arose as to whether this requirement was conjunctive or disjunctive. Put differently, the question was whether a bidder had to provide both client references and documentary proof of prior transactions, or whether either category of evidence would suffice. 73.That issue was squarely addressed by the Review Board in Request for Review No. 90 of 2025 and subsequently considered by the High Court in the ensuing judicial review proceedings; E315 of 2025. Both the Review Board and the High Court rejected a conjunctive interpretation of MR-16. Instead, they interpreted the provision as disjunctive. The legal consequence of that interpretation was clear: a bidder could satisfy MR-16 by furnishing client references, or documentary evidence of successful CER/VER transactions, or both. 74.The rationale for that interpretation was rooted in the language of the tender document itself. The repeated use of the disjunctive connector “or” and the structure of the requirement did not support an interpretation that would elevate all listed forms of evidence into cumulative mandatory requirements. In practical terms, therefore, once a bidder provided sufficient documentary evidence demonstrating prior CER/VER transactions, failure to provide client references could not, without more, constitute non-compliance with MR-16. 75.That interpretation was not provisional. It was not an incidental observation. Nor was it merely persuasive guidance. By the time the matter returned to the Review Board through the rehearing that culminated in the impugned decision, the meaning of MR-16 had been judicially settled and the Review Board was bound by that meaning. That procedural fact is of great significance. It means that the present appeal does not concern the abstract interpretation of MR-16. This Court is not being asked to decide whether MR-16 was conjunctive or disjunctive. That issue had already been conclusively resolved in earlier proceedings and was no longer open for reconsideration by the Procuring Entity or the Review Board. 76.The significance of that settled interpretation is twofold. First, it constrained the legal framework within which due diligence could thereafter be conducted. Second, it defined the outer boundaries of the Review Board’s jurisdiction during the rehearing. This is because the effect of the earlier rulings was not merely to settle a semantic disagreement about contractual wording. Rather, those rulings established the governing procurement rule applicable to all subsequent stages of this tender process. Once that rule was settled, neither the Procuring Entity nor the Review Board could lawfully circumvent it, whether directly or indirectly. 77.The Appellant’s argument is that this is precisely what happened. It contends that although the Review Board formally and facially acknowledged the disjunctive interpretation of MR-16, both the Review Board and the Procuring Entity effectively neutralized and hollowed out that interpretation by treating additional client references - or the functional equivalent thereof - as decisive indicators of capacity during due diligence. The Respondents resist that characterization. They submit that the Review Board never revisited the interpretation of MR-16 and expressly accepted that the requirement was disjunctive. In their view, the earlier rulings settled only the threshold question of eligibility and did not extinguish the Procuring Entity’s authority to conduct deeper due diligence regarding actual bidder capability. 78.In our view, both positions contain elements of truth, but neither fully resolves the matter. We accept the Respondents’ submission that the earlier interpretation of MR-16 did not extinguish the Procuring Entity’s due diligence powers. The fact that a bidder satisfies threshold eligibility under MR-16 does not automatically entitle that bidder to the tender award. Satisfaction of a mandatory requirement and successful due diligence are not identical inquiries. A bidder may pass threshold evaluation yet still fail lawful verification of actual capacity. However, we equally accept the Appellant’s submission that the existence of due diligence powers could not authorize the Procuring Entity to achieve through Clause 14 what it was prohibited from doing under MR-16. Put differently, while due diligence remained available, it had to operate within the legal boundaries created by the settled interpretation of MR-16. 79.The critical question, therefore, is not whether the Procuring Entity had authority to conduct due diligence. As we observed above, it plainly did. The critical question is whether, in the specific manner in which that power was exercised here, the Procuring Entity remained within those lawful boundaries. That requires us to examine the substance, not merely the form or the label given to the process and the impugned reasoning of both the Review Board and the learned Judge. 80.Before proceeding further, it is necessary to anchor our analysis in the specific administrative act that precipitated the present dispute: the Procuring Entity’s letter of regret dated 29th September, 2025 communicating the Appellant’s disqualification from the tender process. In that letter, the Procuring Entity stated that, following due diligence, the Appellant had failed to satisfy the requirements on specific or relevant experience under Mandatory Requirement 16. The letter listed four reasons for that conclusion. As the record reveals, the first three reasons were subsequently found by the Review Board (in its judgment of 23rd March, 2026) to be unpersuasive and incapable, standing alone, of sustaining the Appellant’s disqualification. The Review Board nevertheless upheld the Procuring Entity’s decision on the basis of the fourth reason. That fourth reason was expressed in the following terms:“In addition, you did not furnish any new or independent client references demonstrating successful performance of comparable contracts.” 81.This takes directly to the decisive question in this appeal: whether, in substance, the Procuring Entity’s due diligence exercise, as expressed in this fourth operative reason given in the regret letter, remained a lawful verification of the Appellant’s qualifications or whether it crossed the line into impermissible post-bid re-evaluation. As already observed, this inquiry cannot be resolved by reliance on labels or form alone. The fact that the Procuring Entity described its actions as “due diligence” does not immunize those actions from judicial scrutiny. Courts must examine the substance of the exercise; the actual considerations relied upon, and the functional role those considerations played in the ultimate decision. 82.The Respondents urge us to view the impugned exercise as nothing more than robust verification of the Appellant’s capacity. They argue that the Procuring Entity merely sought to confirm whether the Appellant’s claimed prior transactions genuinely demonstrated the capability necessary to undertake a complex carbon-credit transaction of the scale contemplated by the tender. Viewed from that perspective, the decision to disqualify the Appellant is said to have rested not on the absence of client references per se but on insufficiency of reliable evidence proving actual capacity. 83.That argument is not without force. Indeed, if the record supported the conclusion that the Procuring Entity merely interrogated the authenticity, reliability, and probative value of the documentary evidence relied upon by the Appellant, the Respondents’ position would be substantially strengthened. Such scrutiny would ordinarily fall within the legitimate scope of due diligence. We readily accept that the Procuring Entity was entitled, during due diligence, to interrogate whether the documentary evidence relied upon by the Appellant genuinely demonstrated the financial strength, institutional capability and transactional experience necessary for a procurement of this magnitude. Had the Procuring Entity concluded, after examining those documents, that the transactions reflected therein were too small, too dissimilar, insufficiently completed, inadequately documented or otherwise lacking in probative value to establish the capability represented, such a conclusion would ordinarily fall well within the lawful scope of due diligence. That is because section 83 authorizes meaningful verification of the bidder's claimed qualifications and not merely the authentication of documents. 84.The difficulty, however, is that this is not what ultimately occurred. The Procuring Entity's letter of regret, and the Review Board's reasoning upholding it, did not rest simply on an assessment that the documentary evidence failed to establish sufficient financial or institutional capability. Instead, the decisive fourth ground required the Appellant to furnish "new or independent client references". It was that requirement - not the rigorous interrogation of the documentary evidence - that crossed the boundary from lawful verification into the introduction of an undisclosed evaluative requirement. Consequently, having carefully examined the impugned decision of the Review Board and the reasoning adopted by the learned Judge, we are unable to agree that the exercise remained within those lawful bounds. We say so for three related reasons. 85.First, although the Review Board formally acknowledged the earlier binding determination that MR-16 was disjunctive, its reasoning reveals a significant disconnect between that formal acceptance and the practical evaluative framework it ultimately applied. The Review Board accepted, at least in express terms, that a bidder could satisfy MR-16 through documentary evidence of prior CER/VER transactions even without client references. That was the settled legal position. Yet when the Review Board turned to assess the due diligence process - and specifically the fourth ground in the letter of regret requiring “new or independent client references” - it effectively treated the absence of such references as a decisive indicator of inadequate technical capacity. 86.In our view, this is where the problem begins. Once client references ceased to be a mandatory requirement under MR-16, the Procuring Entity could not lawfully elevate the functional equivalent of client references into the decisive criterion for demonstrating capacity unless such requirement was independently disclosed elsewhere in the tender framework. Put differently, what could not be demanded directly under MR-16 could not be restored indirectly through Clause 14 unless the tender document itself clearly notified bidders that such additional verification would constitute a separate and decisive evaluative benchmark. We have carefully examined the tender framework and the material placed before us. We are not persuaded that such a benchmark was disclosed with sufficient clarity and specificity. Clause 14 undoubtedly preserved the Procuring Entity’s right to conduct due diligence. However, it did not confer an open-ended mandate to redesign the evaluation architecture after bids had been submitted. Neither did it authorize the Procuring Entity to impose fresh qualitative thresholds untethered to the disclosed criteria. Differently put, while the tender document, in MR-16, expressly provided alternative or optional modes of compliance, the Procuring Entity, under the guise of due diligence, demanded documentary proof tied exclusively to one optional mode in a manner that effectively nullified or rendered illusory the alternative mode of compliance expressly permitted by the tender document. 87.Second, the qualitative benchmarks actually applied during due diligence moved beyond verification of existing representations and into the creation of new evaluative standards. The Procuring Entity’s reasoning in the regret letter makes this clear. By insisting on “new or independent client references” demonstrating comparable successful performance, the Procuring Entity did not merely verify the Appellant’s submitted documents. It, instead, introduced an enhanced criterion requiring the Appellant to prove something more than what MR-16 demanded at the tender stage. In substance, this transformed due diligence from verification into a fresh evaluative stage. That was impermissible. 88.It is important to recall that the question before us is not whether the Procuring Entity’s concerns were sensible from a commercial perspective. The question is whether those concerns formed part of the disclosed procurement rules in the Tender Document. That distinction is crucial. Procurement law does not merely seek commercially sound decisions; it seeks commercially sound decisions reached through fair, transparent, and predetermined rules. A commercially sensible criterion that is undisclosed remains unlawful if it materially affects bidder evaluation. In our view, the Procuring Entity’s due diligence exercise drifted into precisely that territory. By effectively demanding evidence approximating enhanced client-reference verification as the decisive indicator of capability, the Procuring Entity introduced a qualitative benchmark that had not been clearly disclosed a priori. 89.Third, the learned Judge did not sufficiently interrogate this critical distinction. The High Court’s analysis appears to have proceeded substantially on the premise that because the Procuring Entity possessed lawful authority to conduct due diligence, and because the Review Board had accepted the results of that due diligence, judicial intervention would necessarily entail impermissible merits substitution. As we demonstrated above, with tremendous respect, that approach collapsed two analytically distinct inquiries into one. The first inquiry was whether the Procuring Entity possessed due diligence power. The answer was plainly yes. The second inquiry, which was the real issue, was whether the specific manner in which that power was exercised remained within lawful limits. That question required closer scrutiny than the learned Judge appears to have undertaken. 90.In our respectful view, the learned Judge accorded excessive deference to the Review Board at precisely the point where judicial scrutiny was constitutionally required. By framing the dispute primarily as an attempt to reopen the merits of procurement evaluation, the High Court insufficiently engaged the Appellant’s core legality complaint: namely, whether the procurement rules had been substantively altered after bid submission. That complaint fell squarely within the scope of judicial review as explained in Suchan, Saisi, and Kiplagat & Okoth Advocates. 91.We are, therefore, persuaded that the Appellant’s challenge has merit. While the Procuring Entity was entitled to undertake meaningful due diligence, the specific exercise undertaken here crossed the line from lawful verification into impermissible post-bid re-evaluation. Stated differently, the Procuring Entity and the Review Board accepted the settled interpretation of MR-16 in form but substantially undermined it in application. The law does not permit a decision-maker to do indirectly what it is prohibited from doing directly. Once MR-16 had been conclusively interpreted as disjunctive, the Procuring Entity remained free to verify the authenticity and reliability of the documentary evidence relied upon by the Appellant. It was not, however, free to treat enhanced reference verification, or its functional equivalent, as a new decisive benchmark of qualification absent clear prior disclosure in the tender framework. Permitting such an approach would undermine certainty of the rules in procurement and erode the constitutional guarantees of transparency, fairness, and equality of treatment under Article 227 of the Constitution. 92.We, therefore, conclude that the Review Board fell into error in upholding the impugned due diligence exercise and that the learned Judge erred in failing to identify and correct that error. 93.Before turning to the appropriate relief, we briefly address the Appellant’s argument regarding section 175 of the Act and whether proceedings commenced thereunder trigger automatic suspension of the procurement process. 94.The Appellant argued that absent an automatic standstill, the statutory right to judicial review risks practical defeat because a procuring entity may proceed to contract execution before the courts determine the legality of the procurement process. 95.While that concern is not without policy force, this issue was recently considered in detail by this Court in Kiplagat & Okoth Advocates, and we see no reason to depart from the conclusions reached there. In that case, the Court held that the statutory architecture of the Act draws a deliberate distinction between proceedings before the Review Board under section 168 and judicial proceedings before the High Court and appellate courts under section 175. The former expressly trigger the automatic suspension of the procurement process. The latter do not. 96.Parliament clearly knew how to provide for an automatic standstill when it intended to do so. Its decision to include express suspension under section 168 of the Act while omitting comparable language under section 175 of the same Act cannot be treated as accidental. Accordingly, and consistently with this Court’s holding in Kiplagat & Okoth Advocates, we reaffirm that commencement of proceedings under section 175 of the Act does not, by itself, automatically suspend procurement or contract execution. Any such suspension must arise from an express judicial order granting interim relief. 97.That issue, however, does not materially affect our disposition of this appeal, which turns primarily on the legality of the due diligence exercise and the integrity of the tender framework. 98.We now turn to the appropriate relief. Having carefully considered the record, the judgment of the High Court, the decision of the Review Board, and the submissions of counsel, we are satisfied that the appeal succeeds. Our conclusion rests on a relatively narrow but important legal ground. We have found that while the Procuring Entity was lawfully entitled to conduct due diligence under Clause 14 of the tender document and section 83 of the Public Procurement and Asset Disposal Act, the specific manner in which that due diligence was undertaken in this case exceeded lawful bounds. More specifically, we are satisfied that after MR-16 had been conclusively interpreted in earlier proceedings as disjunctive, the Procuring Entity and the Review Board were bound to conduct all subsequent stages of the procurement process within the legal framework created by that settled interpretation. That did not extinguish the Procuring Entity’s power to conduct meaningful due diligence. It remained entitled to verify the authenticity, reliability, and sufficiency of the documentary evidence relied upon by the Appellant to demonstrate prior CER/VER transactional experience. 99.However, that due diligence power could not lawfully be exercised in a manner that effectively restored, through the back door, a requirement that earlier proceedings had already held was not mandatory. In our view, that is what occurred here. Although the Review Board formally acknowledged that MR-16 was disjunctive, the due diligence exercise ultimately treated enhanced client- reference verification - or its functional equivalent - as a decisive benchmark of capability. In substance, this introduced an additional evaluative criterion not clearly disclosed in the tender framework. 100.That approach offended core procurement principles. Public procurement demands not only sound commercial judgment but fidelity to predetermined rules. Even commercially sensible criteria cannot lawfully be introduced after bids have been submitted if those criteria materially affect bidder evaluation. We are, therefore, satisfied that the Review Board erred in upholding the impugned due diligence exercise and that the learned Judge erred in failing to identify and correct that legal error. 101.We are equally satisfied that the appropriate remedy is not for this Court to substitute its own commercial or procurement assessment for that of the specialized procurement institutions. Our task is to restore legality to the process, not to directly determine the successful bidder. Accordingly, in the circumstances of this case, the remedy that best balances legality, institutional competence, procurement fairness, and public interest is to remit the matter for fresh consideration. The fresh consideration shall be undertaken by a differently constituted panel of the Public Procurement Administrative Review Board. In doing so, however, we are equally careful not to unduly constrain the Procuring Entity or the Review Board in the lawful exercise of their procurement expertise. The remittal directed below is therefore intended to restore legality while preserving the full scope of due diligence permitted under section 83 of the Act, as explained in this judgment. 102.For the avoidance of doubt, the Review Board, on remittal, shall reconsider the Request for Review within the legal framework set out in this judgment and, in particular, on the basis that:a.Mandatory Requirement 16 remains conclusively interpreted as disjunctive;b.Due diligence under Clause 14 of the Tender Document and section 83 of the Public Procurement and Asset Disposal Act is a legitimate process of substantive verification and inquiry, and is not confined to the mechanical authentication of documents or a purely clerical exercise;c.In the course of such due diligence, the Procuring Entity is entitled to rigorously interrogate the authenticity, reliability and probative value of the documentary material relied upon by a bidder, and to determine whether that material genuinely demonstrates the bidder’s financial capacity, technical competence, institutional capability and relevant experience represented in the bid;d.However, such due diligence must remain anchored to the disclosed tender criteria and may not be used to introduce fresh evaluative criteria, impose new benchmarks, or require compliance through a different category of evidence from that prescribed in the Tender Document, including indirectly reintroducing client references as a mandatory or determinative requirement contrary to the settled interpretation of Mandatory Requirement 16; ande.In undertaking that reconsideration, the Review Board shall be guided by the principles governing due diligence under section 83 of the Public Procurement and Asset Disposal Act as distilled in paragraph 66 of this judgment. 103.In the result, we make the following orders:a.First, the appeal is hereby allowed.b.Second, the judgment of the High Court in Nairobi HCJR No. E101 of 2026 delivered on 20th May 2026 (Ouya, J.) is hereby set aside.c.Third, the decision of the Public Procurement Administrative Review Board dated 23rd March 2026 is hereby quashed.d.Fourth, the dispute is remitted to the Public Procurement Administrative Review Board for fresh determination before a differently constituted panel in accordance with the legal guidance contained in this judgment.e.Fifth, given the long procedural history of this matter and the public interest dimensions involved, each party shall bear its own costs of this appeal and of the proceedings before the High Court.104.Orders accordingly.DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026.ALI-ARONI.............................JUDGE OF APPEALJOEL NGUGI.............................JUDGE OF APPEALP. LILAN.............................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR