referring to the documents as long as they were given an opportunity to peruse the documents and likewise
comment on them. The examination of documents therefore proceeded by the agreement of all parties.
138. The Board therefore was within the law to deal with the aforesaid issues and did not act in excess of its
mandate.
Consolidation: Claim that Request for Review were different
139. The next issue was the propriety of dealing with both reviews when the same were allegedly mutually
irreconcilable. It was contended that as the two requests for review did not seek the same orders, the
decision by the Board was unreasonable and in defiance of logic. We presume the Ex parte Applicant is
arguing that the consolidation of the two requests was improper or the requests were irreconcilable in their
totally different tenor and substance. First of all, the consolidation was by consent of all the parties, and the
reason for the consolidation was because “...the issues raised in both applications were substantially
similar’’. A close scrutiny of both Requests for Review, reveals that save for the 2nd interested party which
sought in its review that it be awarded the tender after the annulment thereof, both sought for nullification
and setting aside of the award made to the Ex parte Applicant and on such nullification or setting aside, a retendering or re-evaluation of the tender. It also included an alternative prayer (iii) for re-evaluation of the
tender. The only other prayer by the 3rd Interested Party which was not in the other request was for an order
of debarment against the Ex parte Applicant. Despite those few differences, the issues underpinning the
requests for review were bound to be and were substantially similar and capable of being tried together. We
appreciate that the Board made a specific finding that ‘’...although the two Requests for Review were
filed by two different Applicants [,] there were several points of concurrence between the
Applicants’’. The Board also used the words ‘’...and be heard together...’’ which are useful if a
consolidation is found not to have been possible. However, in our view the consolidation was in order. In the
premises, the decision of the Respondent cannot be said to be unreasonable or in defiance of logic on that
score.
Jurisdiction of the Respondent
140. On the issue of the jurisdiction of the Board, we wish to deal with the statutory jurisdiction of the Respondent
Board. In our view, the Board did not determine or base its decision on extraneous matters as
claimed. There is also no doubt the Respondent has jurisdiction to conduct an administrative review of
procurement proceedings upon a Request for Review filed under Section 93 of the Act.
141. Under Section 98 of the Act, the Respondent has power to:a.
annul anything the procuring entity has done in the procurement proceedings, including annulling
the procurement proceedings in their entirety;
b.
give directions to the procuring entity with respect to anything to be done or redone in the
procurement proceedings;
c.
substitute the decision of the Review Board for any decision of the procuring entity in the
procurement proceedings; and
d.
order the payment of costs as between parties to the review.