Applicant, created an issue of fact which the Respondent was entitled to enquire into and make a finding
on. All parties were given an opportunity to comment on all issues, including the documents submitted to
the Respondent by the 1st Interested Party. The 2nd Interested Party took the view that the Respondent acted
within its jurisdiction and did not exceed its powers. Thus the Ex-parte Applicant’s claim that the
Respondent acted ultra viresmust fail.
77. Similarly, it was contended it is not correct for the Ex-parte Applicant to complain that the Respondent’s
decision was based on matters not pleaded in the Requests for Review. In its Request for Review, the
2nd Interested Party at Clause 1(h) expressly averred that the 1stInterested Party awarded the tender to a
bidder who was not eligible to participate in the tender in the first place which constituted breach of Section
31 of the Act which section sets out the eligibility criteria a bidder is required to meet to be awarded a
contract including among others, having the necessary qualifications, capability and experience to provide
what is being procured. In addition, at paragraph 6 (b), (c), (d) & (e) of its response to Request for Review
No. 4 of 2014, the 2nd Interested Party also pleaded that the Ex-parte Applicant did not meet the criteria set
out in Clause 14.3 (b) of the ITT which required the tenderer to individually demonstrate the financial,
technical and production capability necessary to perform the contract as set out in Clause 11 of the
TDS. The 3rd Interested Party also pleaded at paragraphs 4.1.2 and 4.1.3 of its Request for Review, that the
1st Interested Party failed to ensure that the preconditions of the TDS were met including the requirements in
respect of experience as a manufacturer and supplier of the proposed goods and services as set out in
Clause 11 of the TDS. In the responses to the Requests for Review, the 1st Interested Party asserted at
paragraphs 12, 13 and 14 that the preconditions in the TDS were met by all the technically and financially
qualified bidders. The Ex-parte Applicant responded to the allegation that it did not meet the minimum
eligibility requirements and asserted that it was a qualified bidder at paragraphs 3, 6 and 8 of its response to
the Requests for Review. These issues were pleaded and responded to by the parties and neither the Exparte Applicant nor its advocate objected to submissions being made on the question of whether the Exparte Applicant met the financial requirements or its bid was submitted as a joint venture. As such, the
allegation that the Respondent’s decision was based on un-pleaded matters is without basis. In any event,
where it appears from the course followed at trial that an un-pleaded issue has been left to the Court for
determination, the Court or tribunal has to make a finding on it. See Odd Jobs vs. Mubia [1970] EA 476. See
also the case of Justus Mongumbu Omiti vs. Walter Osebe & 2 Others Election Petition No. 1 of 2008, where
the Court opined that it could not lock out evidence which would help it determine whether a process was
free, fair and transparent on the technical grounds that the issues addressed by such evidence were not
pleaded.
78. To the 2nd interested party, the Ex-parte Applicant was duly informed and served with pleadings and had
been afforded full opportunity to make oral submissions through its Counsel and director Mr. Ajay Jain at the
hearing of the Requests for Review. All processes including consolidation were brought to the attention of
the Ex parte Applicant as required by law. The Ex-parte Applicant did not seek additional time to prepare
itself or object to any document filed and served upon it, or obtain copies of the requests for review under
Regulation 74 (4) of the Regulations. Instead, it sat back and only expressed its intention to participate in
the proceedings late, that is, on 28th February 2014. The Ex-parte Applicant, therefore, confirmed it was
ready to proceed and did indeed proceed. It must be noted also that, the very nature of procurement of
goods and services by public bodies makes time to be of the essence which explains why Section 97 of the
Act imposed strict timelines within which challenges to an award of tender must be heard and
concluded. The law is that since proceedings are time bound they must be concluded within thirty (30)
days. By the time the hearing commenced on 5th March 2014, there were only nine (9) days left to the expiry