of one of the parties. Whereas we appreciate that the Board’s latitude in applications for review is wide, such
latitude ought not to be expanded to such an extent that it renders the idea conceived by the PE totally
useless. In providing its own definition of what an OEM is the Board in essence altered the bid documents
which can only be done as provided by the Act and by the PE.
155. The Board may have indeed found a shortcoming in the definition of an OEM provided by the PE. We are of
the view, that in order to achieve a transparent system of procurement as required under Article 227 of the
Constitution, it is important that procuring entities should set out to achieve a certain measure of precision in
their language in the tender documents and not leave important matters for speculation and conjecture as
was the case in this matter.
Debarment
156. We now wish to deal with the contentious issue of debarment. It was alleged that the Board exceeded its
jurisdiction in debarring the Ex parte Applicant from participating in the procurement proceedings ordered by
the Respondent. The impugned order reads:
(i) The Procuring Entity is directed to proceed with the Tender from the point of the
opening of the BAFO’s and thereafter conduct due diligence in accordance with the
criteria set out under Clauses 34.2, 34.3 and 34.4 of the Tender Document.
(ii) For the avoidance of doubt, the only parties that shall participate in the process in (ii)
above shall be M/S Hewlett-Packard Europe, BV Netherlands and M/S Haier Electrical
Appliances Corporation Ltd, the 1st and 2nd Applicants in Application No 3 and 4 of 2014
respectively.
157. The Request for Review No 4 in prayer (iv) prayed that the Ex parte Applicant be debarred from participating
in any re-evaluation or re-tender relating to the procurement in question. Debarment is a technical as well as
legal process under Part IX of the Act. Under Section 115, power to debar a person is vested in the Director
General of the Public Procurement Oversight Authority (PPOA) with the approval of the Advisory
Board. Debarment is a whole process by itself with in-built safeguards such that investigations are done and
the person concerned must be given an opportunity under section 116 to make representations to the
Director-General. Debarment will then be imposed only after the grounds set out in section 115 have been
established. Even where debarment is imposed under section 115(2A) on the recommendation of a lawenforcement agency with an investigative mandate, section 116 still applies. Therefore, debarment must be
done strictly in accordance with the provisions of the Act because it attracts serious sanctions and serves an
important purpose of maintaining the integrity of the process of public procurement.
158. The role of the Review Board in debarment is at different level as outlined in sections 117 and 122 of the
Act. Section 117 and 122 states that;
“117. (1) A person who is debarred under section 115 may request the Review Board to review
the debarment.
(2) A request for a review may only be made within twenty-one days after the person was
debarred.