party, the 2nd Interested Party tried to conceal the fact that it used ODMs by altering the document it placed
before the Board, but the Respondent did not to act on this. The contention by the 2nd Interested Party which
was accepted by the Respondent that an ISO Certificate did not constitute the Ex parte Applicant an OEM is
incorrect as it fails to acknowledge the context in which the certificate was produced. To it, the said
certificate is only one of several items of evidence showing that the Applicant was an OEM and is certainly
not the only document that was considered by the 1 st Interested Party in reaching the conclusion that the
Applicant was duly qualified to bid for the tender. The decision of the Respondent was also unreasonable in
that it found that the Applicant herein was not an OEM and yet the Applicant had demonstrated use of the
same ODMs contracted by the 2ndInterested Party.
40. On Joint Venture, the 1st Interested Party submitted that a substantial part of the decision reached by the
Respondent is hinged upon the finding that the Applicant did not bid as a joint venture. Clause 3.1 of the
Instruction to Tenders (ITT) was however unequivocal in granting the eligible bidders an option to bid as
either under an already established joint venture or consortium or to show the formal intent to enter into a
joint venture which view is further buttressed by other clauses in the tender document. Apart from that there
was in the tender documents submitted to the Board, the Ex parte Applicant’s formal intent to enter into a
joint venture arrangement as evident from the Memorandum of Understanding between the Applicant and its
proposed Joint Venture Partner. Therefore the respondent’s finding that it had examined the original Tender
documents and had found “no evidence to prove that the Interested Party participated in this Tender as part
of a consortium or a joint venture with any other company”was, erroneous, irrational and unreasonable.
41. To the 1st interested party, the Respondent ignored all those facts which were both cited in the submissions
before it and also present in the documents submitted to it. The finding that the applicant bid as a single
entity was wholly unfounded and therefore unreasonable and irrational. From the Respondent’s decision, it
selectively reviewed the tender documents. For instance, the Respondent made reference to the Due
Diligence Report submitted by the First Interested Party but failed to consider the information obtained by
the 1st Interested Party on the existence of Memorandum of Understanding between the Applicant and its
joint venture partner.
42. The 1st interested party explained that the threshold for experience by the bidders for purposes of the tender
was two-fold according to the tender documents. First, the bidders had to show that they had at least 5
years’ experience in providing services and solutions similar to those required by the tender and secondly,
that they had engaged in at least three contracts of at least the equivalent of Kshs. 500 million each. In its
view, as the Ex parte Applicant demonstrated both these aspects of its experience and that of its joint
venture partner in the tender documents it submitted, in finding that the Ex parte Applicant did not have the
requisite experience, the Respondent took into account only the ISO certification of the Ex parte Applicant
and erroneously stated that the 1st Interested Party had cited the said certification as the only evidence of
experience considered in determining whether the Applicant was qualified to bid. Yet the tender documents
submitted by the Applicant clearly showed that the Applicant and its joint venture partner had combined
experience of much more than the average 5 years required. While the TDS was clear that the ISO
Certificate was one of the documents required to be submitted, it did not specify the period in respect of
which the ISO Certificate should have been issued to the bidder. An ISO Certificate, it was contended is a
certification of quality of the goods or services provided and the efficiency of an organization as at the time of
issue.