2014 and 6th March, 2014 and the Respondent Board delivered its decision on 11 th March, 2014 allowing the
two requests. The Respondent Board made several determinations of the issues before it in the decision
and some of the significant holdings of the Respondent Board included;
1) Annulment of the award of the Tender to M/S Olive Communications PVT Ltd;
2) Directions that the Procuring Entity to proceed with the Tender process 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;
3)
THAT the only parties that shall participate in the process in (2) above shall be M/s
Hewlett – Packard Europe, BV Netherlands and M/s Haier Electrical Appliances Corporation
Ltd; and
4) The Procuring Entity shall complete the entire process including the making of an award
within a period of 45 days from the date of its decision.
11. The Ex parte Applicant felt aggrieved by the entire decision of the Respondent Board and filed this judicial
review application in this Court to remove the said decision to the High Court for purposes of being
quashed. The Ex parte Applicant and the other parties filed pleadings and also submitted at length on the
issues at hand, and those submissions shall be analyzed in great depth for their worth.
The ex parte Applicant’s Case
12. In support of the application the applicant relied on the following grounds:
1.
That the Decision is contrary to the Rules of Natural Justice;
a.
It is based on grounds which were not pleaded by any of the applicants in the request for review applications
that had been filed. As a consequence, the Ex parte Applicant was not afforded an opportunity to
respond. This was particularly so with regard to the allegation that the Ex parte Applicant did not meet the
financial criteria regarding turnover to qualify as an eligible tenderer. None of the applications contained any
such allegation.
2.
That if such an allegation had been properly pleaded, and the applicant been given a proper opportunity to
respond to it, it would have demonstrated that it did indeed meet the financial criteria regarding the turnover,
hence its bid passed the preliminary stage, and therefore:
a.
In finding that the applicant lacked the necessary financial turnover the respondent made a gross error of
law and of fact. It was an error of law because the matter was not properly before the Board for it to
consider. And it was an error of fact because the Ex parte Applicant did in fact meet the financial criteria and
the information substantiating that fact had been supplied to the Procuring Entity and was contained in its
Bid Documents which were before the Board.
3.
The Board made an error of law and of fact in finding that the Applicant was not in a Joint Venture with
another company.