a.
It was an error of law because the question was not properly before the Board, the same not having been
pleaded with any degree of precision by either applicant in their respective Requests for Review.
b.
It was an error of fact because the Applicant had in fact submitted its Bid jointly with another
company. Moreover, the Ex parte Applicant had stated in the Response to the Request for Review that it
had participated in the tender with another company. All the documents in support of that arrangement were
contained in the Bid Document supplied to the Procuring Entity and filed before the Board.
c.
If the Applicant had been given an opportunity to respond to the allegation that it had not presented its Bid
together with another company, it would have done so and it would have directed the Board to the correct
documents.
4.
By considering grounds that were not contained in the Requests for Review that were before it, the Board
acted ultravires;
a.
The power of the Board to review a decision of the Procuring Entity is limited by the grounds of the Request
for Review.
b.
The Board, in purporting (suo moto) to frame issues and deal with fresh grounds not contained in the
Request for Review, exceeded its mandate under the Act and the Regulations.
5.
In allowing both requests for review, the Board made a decision that is unreasonable and in defiance of logic;
a.
The requests for review did not seek the same orders
b.
In application No. 3 of 2014, HP sought the following
i.
That the procuring Entity’s decision to award the Tender No. ICB/MOEST/7/2013-2014 for the supply,
delivery, installation and commissioning ICT integration in devices and solutions for primary schools in
Kenya to Olive Telecommunications be set aside and/or nullified.
ii.
That subject to due diligence Tender NO. ICB/MOEST/7/2013-2014 for the supply, delivery, installation and
commissioning ICT integration in devices and solutions for primary schools in Kenya be awarded to the
applicant, being the most advantageous bidder in conformity with the provisions of the Public Procurement
and Disposal Act, the Public Procurement and Disposal Regulations 2006 and in conformity with the evaluation criteria set out in the tender documents.
iii.
In the alternative and without prejudice to prayer number 2 above, the Procuring Entity do properly and
correctly evaluate the bids submitted by the bidders in respect of Tender No. ICB/MOEST/7/2013-2014 for
the supply, delivery, installation and commissioning ICT integration in devises and solutions for primary
schools in Kenya in conformity with the Public Procurement and Disposal Act 2005, the Regulations and the
Tender documents and using objective, transparent evaluation criteria and in particular by taking into
account the value additions.
iv.
The Procurement Entity be ordered to pay the costs of and incidental to these proceedings on a full
indemnity basis.
v.
This Honourable Board be pleased to issue such further or other Orders as it may deem just.
c.
The applicant in No. 4 of 2014, on the other hand, sought the following orders;
i.
The procurement award announced on 7th February, 2014 be annulled in its entirety.
ii.
The procuring entity be ordered to transparently re-evaluate the tenders of only the compliant tenderers for
purposes of the awarded of this tender.