86. The 3rd Interested Party supported the arguments urged by the Respondent and the 2 ndInterested Party and
substantially echoed all that the 2nd Interested Party and the Respondent submitted.
87. In addition, it emphasized that, the Court in the exercise of judicial review jurisdiction should not entertain
any merit review or be tempted to substitute the decisions of the Court for those of the tribunal. It also laid
great stress on the fact that no rule of natural justice was breached as alleged, for, the Ex parte Applicant
fully participated in the proceedings before the Review Board without any complaint, and that was after
being served with all pleadings in a timely manner. The Review Board framed the “Issues for Determination”
from the pleadings and submissions of the parties themselves and these matters cannot therefore be
described as extraneous or ultra vires at all. In its view, the record reveals that the Review Board carried out
a thorough scrutiny of the tender documents presented before it and as it had been rightly been reminded by
the parties to do. The Review Board did not exceed its jurisdiction and mandate as alleged herein.
88. The 3rd Interested party also took issue with the conduct of the Applicant after the Review Board Ruling in
that it placed a full-page advertisement in the national newspapers on 14 th March 2014, where it savagely
vilified the Board.
89. The 3rd Interested Party was of the view that the action by the Ex parte Applicant was a distasteful and
emotional attack aimed at casting aspersions, without basis, on the integrity of the statutory Tribunal. It was
also against the adverse outcome of the statutory review process which was based on merit. The Review
Board is a creature of the Act and its process is anchored in law. Its membership is regulated by the statute
and cannot be made the subject of media vitriol nor can they be made the subject of judicial review. The
Applicant was all too willing to participate fully the in the Review Board proceedings for the said two days,
but only became enraged when the outcome of the review did not favour it.
90. In the 3rd Interested Party’s view, the very fact that the Tribunal made reasoned findings adverse to the
Applicant does not render the proceedings or their outcome unfair or unjust. The Tribunal’s discretion was
not rendered arbitrarily but it was exercised with disclosed reasons.
91. In its view, a “mistake of fact” argument cannot be raised as a ground for Judicial Review where that fact
was itself contentious in the proceedings before the Tribunal. Accepting such a submission would effectively
transform the judicial review process into an appeal against the merits of the Tribunal’s reasoned
decision. It was stated in the Hong Kong case of Nguyen Ho vs. Director of Immigration; (1991) 1 HKLR 576
(CA) that “Courts must in no circumstances allow themselves to be enticed into the evaluation of a fact
which is properly within the exclusive jurisdiction of the Tribunal”. The 3rd Interested Party also referred to
the statement in New Zealand Fishing Industry Association Inc. vs. Minister of Agriculture and Fisheries to the
effect that “…it cannot be said to be a mistake to adopt one of two differing points of view of the facts, each
of which may be reasonably held”. This jurisprudence is especially relevant to the heavily contested issue
of the definition of what constituted an Original Equipment Manufacturer in the Tender.
92. Just as the 2nd Interested Party and the Respondent submitted, the 3 rd Interested Party was of the view that
the Board did not reach a finding or decision that no reasonable Tribunal applying its mind to the issues
could have reached. The decision was based on reasons and evidence on proper analysis of all the Tender
Documents and the issues before it. There was nothing mistaken, irrational or unreasonable about the
findings by the Board on additional services, eligibility and responsiveness of the bid by the Ex parte
Applicant. The Board gave effect to Clauses 26.3 and 26.4 of the ITT which were stated in mandatory terms