attempt to lump the 2nd Interested Party with the Ex-parte Applicant as a justification for the irregularities in
awarding the tender to the Ex-parte Applicant is, according to the 2 nd interested party improper and
mischievous. These variations, it was contended were not minor deviations which are allowed under
Regulation 50 during the evaluation of tenders. There was no room for a further evaluation after the
technical and financial evaluation. If indeed there was a further evaluation carried out by the 1 st Interested
Party after the submissions of the BAFO, this was irregular and the 1 st Interested Party cannot now use the
said irregularity to confer a benefit upon the Ex-parte Applicant. The minor deviations envisaged in Section
64 (a) of the Act are those that do not materially depart from the requirement in the tender documents or are
intended to remove errors or make corrections without affecting the substance of the tender. The listing in
the Additional services of the Operating System and Standard One year warranty which were essential
components of the goods and then quoting them separately was a substantial contravention of the tender
requirement. Equally, the exclusion of those items from the tender price for the goods clearly materially
departs from the tender requirements and materially affected the tender. Since clause 16.8 of the ITT was
clear that the prices quoted by the bidders were to be fixed during the performance of the contract and were
not subject to variation, in awarding the tender at US$ 284,823,957.69 the 1 st Interested Party irregularly
varied the tender price.
84. It was contended by the 2nd Interested Party that only the Ex-parte Applicant submitted the bid and was not a
joint venture as alleged. The tender documents clearly provided that the entity or entities submitting a bid
were to be jointly and severally liable. There was need for both New Century Optronics and Olive
Telecommunications PVT Ltd to have been jointly named as the bidders and to have jointly executed the
Form of Tender. However, all Forms of Tender were executed by only Olive Telecommunications PVT
Ltd. But this Court has no way of ascertaining in whose name the bid documents were. Indeed, the MOU
did not create any legally binding obligations to expend funds or resources by either party (Clause 6) in so
far as the tender was concerned on the part of New Century Optronics. The Respondent found no evidence
to prove that the ex-parte Applicant participated in the tender as part of a consortium or a joint venture with
any other company. The MOU was not sufficient to bind New Century Optronics under the contract of
procurement. See the decision in Canlan Investment Corp vs. Gettling, British Columbia Court of Appeal,
1997 CANLII 4126, where the Court held that for legal consequences to arise between the parties and for a
joint venture to be deemed to have been in existence, there must be a contractual underpinning.
85. The 2nd Interested Party concluded that the Ex-parte Applicant has not shown the manner in which the
Respondent contravened the due process in hearing and determining the Requests for Review. The Exparte Applicant agreed to and freely participated in the procedure adopted by the Respondent. On this
see Republic vs. Public Procurement Administrative Review Board Ex-Parte Gibb Africa Ltd & Anor., JR No.
92 of 2011, that where parties were represented at the hearing and no complaints were raised on the
procedure adopted by the decision maker, they cannot accuse the decision maker of breaching the rules of
natural justice. The Ex-parte Applicant and the Interested Party are deemed to have waived their right to
challenge the validity of the proceedings. The Ex-parte Applicant has not proven any of the grounds
challenging the decision of the Respondent to the required standard or at all to warrant the issuance of the
orders sought. For the reasons set out above, the 2nd Interested Party beseeched the Court to dismiss the
application with costs.
Submissions by the 3rd Interested Party