tenderer’s performance of the contract and would not be subject to variation. The total bid price was to
comprise of two elements being, (a) the cost of the laptops and (b) the cost of delivery of named destination.
82. To the 2nd Respondent, the bid by the Ex parte Applicant was non-responsive and the alleged variation of
price done on 7th February 2014 by the 1st Interested Party to US$ 284,823,957.69 with an extra sum of
about US$ 15,914,288.00 was illegal. The extra sum could not have been for additional services and the
Respondent correctly found that the explanation given does not justify the irregular price variation for the
following reasons:a.
The cost of transportation to named destination together with insurance and other local costs incidental to
the delivery of the goods to their final destination was to be included in the total bid price.
b.
In addition, the tender documents and particularly the format of the Price Schedule was clear that in addition
to the cost of the laptops, bidders were required to assign values in the Price Schedule for the cost of
delivery to named destinations including incidental services in connection with the said delivery. In its BAFO
at Page 268 of its bundle, the Ex-parte Applicant did not assign a value for the cost of delivery in the price
schedule and instead amended the format of the price schedule by putting a prefix “PSA” against the
additional services. It now alleges that it listed the purported additional services in a separate document.
83. The inclusion of the separate page on cost of alleged additional services in the 2 nd interested party’s view
contravened Clause 15.2 as read together with Clause 16.1 of the ITT which required that the prices be
quoted in conformity with the tender documents and that alterations would not be accepted. The
1st Interested Party also contravened Clause 26.8 of the ITT when it failed to request the bidders to sign the
Tender Opening Register and it is signed only by its officials. The mischief intended to be cured by the
aforesaid provisions of the ITT, was to avoid a situation where a bid could be altered after submission of
prices. The Ex-parte Applicant’s bid was manipulated so that its price fell just below the prices quoted by the
2nd and 3rd interested parties. Section 60(7) of the Act requires that each member of the Tender Opening
Committee signs each tender on one or more pages as determined by the Tender Opening Committee and
initials in each tender against the quotation of the price and any modifications or discounts. Peculiarly, in all
three bidders, all pages of the Form of Tender and Price Schedules were stamped received on
13th December 2013 and signed by the 1 st Interested Party’s officials, except the Ex-parte Applicant’s
Annexure of additional services-a fact that was noted by and referred to by the Respondent in its
Decision. It is similarly curious that the impugned Annexure of additional services that was placed before
the Respondent is not attached to the Ex-parte Applicant’s BAFO. Among the items included as additional
services was the standard one year warranty and the Microsoft operating system which items, according to
the tender documents and in particular Clauses 3.1 and 3.2 of the Hardware Specifications, were among the
minimum specifications all bidders were required to meet. As such they were included in the cost of the
laptops. They did not constitute additional services and therefore could not qualify as items to be priced
separately. The totality of the above is that the bid was substantially non-responsive and so was the Ex
parte Applicant’s BAFO and the same ought to have been rejected. According to the tender documents,
additional services ought to have been included in the total bid price. On the other hand value added
services were to be provided for free. The Respondent correctly distinguished these two items and there
was no confusion whatsoever. This ground by the Ex-parte Applicant should therefore also fail. The
1st Interested Party has sought to justify the failure to read out the sum of US$ 15,914,288.00 on the basis
that under Regulation 45(1) (a) of the Regulations, the total price of the tender need not be read out where a
tender consists of numerous items that are quoted separately-that is not the correct position as Regulation
45(1) (a) only applies in tenders that consist of numerous items to be quoted for separately.
Also, the