unreasonable decision is a nullity and the instances in which a tribunal’s decision may be a nullity include
failing to comply with requirements of natural justice, deciding on matters not remitted to a tribunal, taking
into account irrelevant matters as well as failing to take into account relevant matters, all of which exist in
this case. The 1st interested party argued that the Respondent’s decision should therefore be declared a
nullity in the circumstances since it was unreasonable and irrational for the Respondent to fail to examine all
the documents submitted to it for purposes of reviewing the award of tender.
The 1st interested party
averred that the Respondent was invited by the 1 st Interested Party’s Advocate to review all the documents
before it for purposes of confirming the veracity of the claims made by the various parties(emphasis
added) and that this was necessary because of the fundamental differences in the submissions made by the
different parties before the Respondent.
Despite this the Respondent not only failed to review all the
documents before it to verify the claims made, but it also appears to have used the invitation to review the
documents as an excuse to exceed its mandate. However, the 1st Interested Party averred that no
reasonable tribunal would reach the conclusion that the invitation to review all the documents submitted to it
in a matter amounts to a call to consider issues not properly before it and, without properly reviewing all the
said documents, to base a finding on those issues.
38. It was, according to the 1st Interested Party, unreasonable and irrational for the Respondent to reach a
decision that contradicted existing facts as set out in the tender documents as well as in defiance of logic
and reason in the following instances: On Original Equipment Manufacturer, Clause 3.6 of the TDS (page 31
of the Affidavit of Livingstone Indetie sworn on 4th April 2014) stated that ‘the bidder must be an Original
Equipment Manufacturer (OEM) of the proposed hardware gadgets. The bidder must be in a position to
provide support/maintenance/up-gradation of all items included in their offer to the purchaser during the
period of the contract.’ This gave an indication of what qualifications the bidder should have as an OEM. As
such, one of the key requirements for an OEM that was the “bidder must be in a position to provide
support/maintenance/up-gradation of all items.” The Respondent quoted this in its decision at page 51 but
does not appear to have considered the requirements. In order to demonstrate the qualification as an OEM,
the bidders were required to provide an ISO certificate. Bidders also had an opportunity to demonstrate that
they were OEMS by attaching relevant catalogues and other documents. The Applicant produced an ISO
certificate (produced as exhibit P002 by the Respondent) trademark certificates (pages 106 to 108 of the
exhibit annexed to the affidavit ofKenneth Mwangi sworn on 17th April 2014) and a catalogue indicating the
model of the laptop they would supply (produced as exhibit P002 by the Respondent).
These were to
demonstrate that the bidder owned the brand which was a requirement to be an OEM. Under the Act, it is
only a procuring entity that has the mandate to determine the technical specifications of a tender. The
Respondent, therefore, exceeded its mandate by ousting the description given of these requirements and
substituting with its own understanding to the effect that a bidder needed to own a factory in order to qualify
as an OEM. This, in the 1st interested party’s view was unreasonable and irrational. An OEM within the
context of the tender was allowed to manufacture through Original Device Manufactures (ODMs). Like the
other 2 bidders, the Applicant had agreements with ODMs including some who manufacture for the
2nd Interested Party.
39. According to the 1st Interested Party, the 2nd Interested Party did not the foregoing though the 2 ndinterested
party introduced some confusion by stating that the manner in which it uses ODMs is different from the
manner in which the Ex parte Applicant does without even giving the distinction of the manner of use. It was
contended that in any event, the 1 st Interested Party was not interested in the manner in which an ODM is
used by an OEM but that it was sufficient for a bidder to demonstrate inter alia the use of ODMs in the
manufacture of laptops to qualify as an OEM within the requirements of the tender. To the 1st interested