showing how the 1st Interested Party breached the Act and the Regulations, by reference to specific
provisions.
48. In its view, distinction between value-added services and additional services was submitted on by the
1st Interested Party in exact terms as those by the Ex parte Applicant. Whereas value added services were to
be offered free of charge, additional services were all the services outside the unit cost of the devices being
procured which services were necessary for the operationalisation and functioning of the devices. Value
added services were extra services sought by the 1 st Interested Party through competitive negotiation based
on the negotiation template incorporated in the BAFOs. The value added services aspect greatly enhanced
value for money in this procurement proceeding, as part of SPP. The Respondent, it was submitted failed to
distinguish between additional services and value added services, hence, the unreasonable decision. The
only difference in the manner in which the bidders set out the prices was that the additional services were
quoted separately in the Price Schedule as was done by the 3 rd Interested Party, or they were deemed
incorporated in a separate quote in the Price Schedule as was done by the 2nd Interested Party, or
distinguished and itemized to give a clear breakdown of what constituted the services being charged as was
done by the Applicant. Therefore, the Respondent statement in their ruling that “Mr. Ajay from the interested
party confirmed that these items had been provided for in the original tender document and amounted to a
repetition” is erroneous and demonstrated the failure by the Respondent to make the correct distinction
between the two aspects of the bid. The fact that the Applicant gave that breakdown in a schedule annexed
to the tender document is immaterial, especially since the annexure was properly referred to in the Standard
Form of Contract as well as the Price Schedule. For the Board to find that the prices set out in the annexure
constituted an “astronomical inclusion…“was unreasonable. All the three bidders’ Price Schedules were
different but all the bidders were treated in the same manner. Had the Respondent properly reviewed the
documents, it would have seen that the Applicant’s Price Schedule did not change the substance of the
tender and that there was no alteration of price. As recognized by Section 64(2) (a) of the Act, minor
deviations that do not materially depart from the requirements set out in the tender documents are
excusable. The itemization of the Applicant's additional services is a minor deviation which did not materially
depart from the requirements of the tender. The 1 st interested party therefore averred that it was
unreasonable for the Respondent, having claimed to have reviewed the documents before it, to have
concluded that the Applicant herein charged for services that should have been offered for free and for
which the other bidders were not charging when the documents showed otherwise.
49. The conclusion by the Respondent that the Applicant was awarded at a price higher than that contained in
the form of tender as accounted at BAFO was, according to the interested party; in contravention of the Act
and the regulations thereunder as well as the tender document; was simplistic and showed a lack of
understanding of the Act and its regulations.
50. The Board in its view took into account irrelevant considerations, and failed to take into account relevant
considerations. In addition, the Board’s finding that the 1st Interested Party had failed to file affidavits which
was part of the basis in finding against the 1st Interested Party, it was submitted was misconceived since all
the documents containing all the facts relied upon by the 1st Interested Party in setting out its case to the
Board had been submitted to the Board. Further, it was irrelevant to consider standard procurement
procedures since the import of Section 92 of the Act is that the SPP is to have its own procedure as
prescribed. This was the first time that a procurement procedure involving competitive negotiation was
employed successfully. In support of this submission the interested party relied on Warsame, J’s (as he then