43. A certificate of incorporation on the other hand is what shows for how long an entity was in existence hence
in the 1st interested party’s opinion no reasonable tribunal would give an ISO Certificate the same treatment
as a Certificate of Incorporation, especially where both documents were placed before it as part of the
documents submitted in the tender process. However, the Respondent relied on the submissions by of the
2nd Interested Party to the effect that the ISO Certificate was the only evidence of the Applicants’ experience
and failed to examine the documents before it to verify this claim which makes the decision irrational and
unreasonable since the documents submitted by the Applicant to demonstrate its experience were in full
accord with the specifications of the tender documents.
44. In the interested party’s view, the combined turnover of the two entities in the proposed joint venture
agreement was Kshs. 18.2 billion which was much higher than the Kshs. 8 billion as required by the tender
document.
45. Further, the documents before the Board demonstrated the manner in which the lowest evaluated price was
to be reached and the same documents also showed that the lowest evaluated price awarded was reached
in that manner. Contrary to the finding by the Respondent, there was no price variation. The Applicant’s
price as set out in the form of tender was USD 268,899,699 “or any other sums as may be ascertained in
accordance with the price schedule attached herewith PSA and made part of this tender.” The form of
tender had a provision of ascertainment which is an aspect of bid evaluation in accordance with section 66
of the Act and Regulations 50. The standard tender document that was used had been approved by
PPOA. There is no requirement in the Act, the Regulations and the tender document, requiring a procuring
entity to award a tender at the price set in the form of tender without carrying out bid evaluation. The tender
was evaluated in accordance with inter alia Section 66 of the Act and Regulation 50 and there was no
requirement in the Act, the Regulations and the tender document for signing of the Applicant’s schedule of
additional services. According to the interested party, it was therefore outside the Respondent’s mandate to
find that the price was incorrect based on the fact that the schedule was not signed at the opening of the
financial bids. Ascertainment of price of the tender by looking at the documents submitted by the bidders
(including any annexure or schedules that properly form part of the tender documents and do not materially
deviate from the requirements of the tender) is part of the evaluation of bids as provided by Regulation
50. Since the requirement under Section 60(5)(b) of the Act on reading out the total price of the tender
needs to be considered with, inter alia, Regulation 50 which allows minor deviations during evaluation and
Regulation 45(1) (a) which provides that the total price need not be read out if some items are to be quoted
separately, the 1st interested party submitted that it was unreasonable for the Respondent to fail to take into
account the foregoing provisions which led it to equate the total price of the bid with the least evaluated price
of the tender.
46. The interested party asserted that it noteworthy that the prices indicated at the BAFO opening register did
not include the Applicant’s and the 2nd Interested Party’s quotes for additional services/cost of delivery. It
was therefore unreasonable for the Respondent to fail to recognize that the three bidders’ quotes in the
Form of Tender and the Price Schedule were given differently but were treated in the same manner. To
demonstrate this, the 1st Interested Party would have for instance declared the 2 nd Interested Party’s price
schedule as improper for failing to specify the cost of additional services. Though the 2nd Interested Party’s
bid did not show the cost of additional services, this was deemed included in its quote.
47. To the 1st interested party, the Respondent merely and casually gave a general statement at Page 46 of its
ruling, that the 1st Interested Party contravened the Act and Regulations and tender documents without