of the period set in law and the Respondent did not have the luxury of time. The parties, therefore, had the
duty to take all the necessary steps within the time available. Delay or failure by the Ex-parte Applicant in
requesting for those documents, should not be blamed on the Respondent or the 2 nd Interested Party. See
the thought expressed in the decision of the Supreme Court in Raila Odinga vs. IEBC & Others, Election
Petition No 5, 3 & 4 of 2013 that where timelines for hearing has been set, the parties had a duty to comply
with their respective timelines so that no extra burden is imposed on any party or the Court.
79. The other challenge by Ex-parte Applicant that the decision of the Respondent was unreasonable, in the
2nd interested party’s view has no basis especially that: a) It was based on two Requests for Review which
sought different and competing reliefs; b) The Respondent acted unreasonably in finding that the Ex-parte
Applicant did not meet the financial and experience criteria whereas the same were clear in the tender
documents; c) The Respondent ought not to have considered the notification of award in arriving at the
decision that its bid was not submitted as a joint venture but instead ought to have taken into account the
MOU; d) The Respondent did not take into account the definition of an OEM as provided by the 1 st Interested
Party; and e) The sequence with which the Respondent dealt with the issues was wrong. Notably, the
1stInterested Party proposed a definition of OEM which it seems to abandon now. All these challenges are
inviting the Court to do merit review of the decision by the Board which is outside the jurisdiction of this
Court.
80. The 2nd Interested Party disagreed with the submission by the 1st Interested Party that where the Specially
Permitted Procedure is used, the yardstick used in adjudicating disputes arising therefrom is not the same
as would apply in conventional procurements. To them this argument lacks merit and is not founded on any
law or judicial authority. Part VII of the Act on Administrative Review of Procurement Proceedings does not
draw a distinction between the various methods of procurement. The procedure set out in the Act and
Regulations for determining Requests for Review is the same irrespective of methods of procurement.
Whereas the Public Procurement Oversight Authority (“the Authority”) approved the use of the Specially
Permitted Procedure, it did not exempt the application of the provisions of Part IV of the Act. The
1st Interested Party cannot, therefore, use the fact that it used a special method of procurement to justify its
failure to comply with the statutory and constitutional requirements.
81. It was further submitted that the decision of the Respondent is not defiant of logic since it had the power
under Regulation 82 of the Regulations to consolidate two or more requests for review arising from the same
tender or procurement procedure. Additionally, it was contended that the 1st Interested Party has gone to
great lengths of even challenging the validity of the 2 ndInterested Party’s bid at this stage yet it ought to have
filed a challenge of the 2nd Interested Party’s bid or prove it before the Respondent which burden it failed to
discharge. The allegation that the 2ndInterested Party altered its documents, it was submitted was
misleading because the 1stInterested Party confirmed it forwarded all documents to the Respondent. On the
arguments around price variation, the 2nd Interested Party contended that Clause 16.1 of the ITT required the
bidders to quote the prices and discounts in the Form of Tender and Price Schedule in conformity with the
specifications in the tender documents. Clause 16.2 of the ITT expressly provided that items not contained
in the Price Schedule would be assumed not to be included in the tender and the tender would be rejected
as being substantially non-responsive. Clauses 16.3 and 16.6 of the ITT and Clause 12 of the TDS required
that the tender price to be quoted be inclusive of the cost for inland transportation DDP (Duty Duly Paid) to
Nairobi and Mombasa, insurance and other local costs incidental to the delivery of the goods to their final
destination. Clause 16.8 of the ITT provided that the prices quoted by the tenderer would be fixed during the