of the subject project, Learned Counsel submitted that in order to ensure that the Government achieved
value for money in any subsequent procurement, the 1stInterested Party carried out extensive review of the
project and the process to determine the best way forward, including carrying out consultation with key
stakeholders and sought and obtained approval to use a Specially Permitted Procurement Procedure (herein
referred to as the “SPP”) under section 92 of the Act as read with Regulation 64(1)(a) of the Public
Procurement and Disposal Regulations, 2006 (the Regulations). It was stated that the approval was
granted by the Public Procurement Oversight Authority (PPOA) in a letter dated 29 th October 2013 and the
SPP was incorporated in the tender documents. Clause 29 of the Tender Data Sheet included processes not
taken in a normal procurement such as competitive bidding and the submission of Best and Final Offers
(BAFO) in line with Regulation 31(7) of the Regulations which allow procuring entities to use creative
approaches to enhance efficiency of the procurement process and project implementation.
To the
1 Interested Party, this is one of the very few public procurement projects in Kenya in which such
st
procedures have been adopted.
32. According to the 1st Interested Party, the yardstick used in adjudicating disputes arising out of an SPP would
not be the same as those applied in conventional procurements-a fact the Respondent failed to
consider. The 1st Interested Party denied that it disregarded the provisions of the law and averred that the
SPP incorporated in the tender document adhered to the letter and spirit of the Act and the Regulations
since the SPP had been reviewed by PPOA before the tender process begun.
33. It was the 1st Interested Party’s position that it acted timeously in the tender process and communicated
promptly to the bidders of all necessary steps which process saw savings of a total of Kshs.
8,025,151,216.25 in the second tender as compared to the first tender.
34. The 1st interested party clarified that the bidding was done in 3 categories: Lot 1 (Laptops for learners and
Laptops for teachers); Lot 2; (Printers) and Lot 3; (Projectors) and that the Ex parte Applicant was the
successful bidder for Lot 1, having the least evaluated price after the competitive negotiations and the
evaluation of the BAFOs pursuant to the procedure established for purposes of the SPP. To the
1st Interested Party, it went to great lengths to protect taxpayer’s money by investing a lot of time and care
into the tender process as is evident on the due diligence exercise carried out.
35. In its view, the Board was guilty of unreasonable exercise of power and irrationality, because its decision
defies logic such that no sensible person or body could have reached the same decision considering the
facts in the case and applicable law and relied on Associated Provincial Picture Houses Ltd. vs. Wednesbury
Corporation [1948] 1 KB 223.
36. Further and based on De Smith, Woolf and Jowell: Judicial Review of Administrative Action,7th Edition at
paragraph 11-036 on page 602 it was contended that the decision was irrational.
37. In support of the interested party’s case, it was submitted that the Respondent purported to exercise the
powers conferred on it by the Act in reaching its finding and annulling the award of the tender by the
1st Interested Party to the Applicant. The 1st interested party however contended based on the decision
of Nyamu, J (as he then was) in Keroche Industries Limited vs. Kenya Revenue Authority [2007] KLR 240 that
statutory powers and duty must be exercised and performed reasonably. Based on R vs. Public
Procurement And Administrative Board Ex-Parte Zhongman Petroleum & Natural Gas Group Company Ltd
[2010] eKLR which followed Anisminic vs. Foreign Comp. Comm. (H.L.) [1969] 147, it was contended that an