8.
What triggered this application was a decision made by the Board on 11 th March, 2014 by which the Board
nullified the decision made by the Procuring Entity awarding the tender for the said project to the ex parte
applicant herein.
9.
The application is a Motion on Notice dated 21 st March, 2014filed the same day expressed to be brought
under Order 53 Rule 3 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act (Cap. 21 of the
Laws of Kenya) and Section 8 of the Law Reform Act (Cap.26 of the Laws of Kenya) seeking the following
orders:
1.
An order of certiorari removing to the High Court for the purposes of being quashed the decision of
the Respondent delivered on the 11th day of March, 2014 in application No. 3 of 2014 and Application
No. 4 of 2014 and in particular the following orders:-
a.
The requests for review by the first and second applicants dated 12th February, 2014 and
14th February, 2014 and lodged with the Review Board on 13th February 2014 and 14thFebruary, 2014
respectively be and are hereby allowed.
b.
The award of the Tender No. ICB/MOEST/7/2013-2014 for the supply, delivery, installation and
commissioning ICT integration in devices and solutions for primary schools in Kenya LOT 1 to M/S
Olive Communications PVT Ltd as contained in the procuring Entity’s notification of award dated
7th February, 2014 be and is hereby annulled.
c.
i.
In Exercise of the Board’s powers under Section 98(b) the Board gives the following directions
The Procuring Entity is directed to proceed with the Tender process from the point of the opening of
the BAFO’s and thereafter conduct due diligence in accordance with the criteria set out under
Clauses 34.2, 34.3 AND 34.4 of the Tender document.
ii.
For the avoidance of doubt, the only parties that shall participate in the process in (i) above shall be
M/s Hewlett – Packard Europe, BV Netherlands and M/s Haier Electrical Appliances Corporation Ltd,
the 1st and 2nd Applicants in Application No.3 of 2014 and 4 of 2014 respectively.
iii.
The Procuring Entity shall complete the entire process including the making of an award within a
period of 45 days from the date of this decision.
iv.
The Procuring Entity shall deduct any sum wrongly added onto the Tender sum of any of the two
Applicants’ best and final offers (BAFO’s)
v.
The Procuring Entity shall take steps to extend the Tender validity period and extend the bid security
for the two Tenderers for such period of time as is necessary to complete the process.
2.
Costs of and incidental to the Application be provided for
3.
Such further or other relief as the Honourable Court may deem just and expedient to grant.
Brief Background of Application
10. The Ex parte Applicant tendered in Tender No. ICB/MOEST/7/2013-2014 (hereafter the Tender) for the
supply, delivery, installation and commissioning ICT integration in devices and solutions for primary schools
in Kenya LOT 1 by the Respondent, the Procurement Entity (PE). The Ex parte Applicant received a
Notification of the Award dated 7th February, 2014 as the successful bidder. Following that announcement,
the 2nd and 3rd interested parties filed separate Request for Review of the Award before the Respondent
Board, being Nos. 3 of 2014 and 4 of 2014 respectively. The Requests for Review were heard on 5th March,