9.
As a result of the foregoing, the Board made a decision to annul the award of the tender to the Ex parte
Applicant and to exclude it unlawfully from the procurement process.
a.
It is just, fair and equitable that the orders sought herein be granted to the Ex parte Applicant.
13. The said application was supported by the Verifying Affidavit and Supplementary Affidavit sworn by Ajay
Jain, a Director in Charge of Sales in the Ex parte Applicant Company.
14. Apart from amplifying the foregoing grounds, it was contended that contrary to the Respondent Board’s
finding that the combined average annual turnover for the Ex parte Applicant and its other consortium
partner, New Century Optronics Company Limited, was below Kshs. 8 billion, the same was Kshs. 17.85
billion. It was deposed that the combined contractual experience of the Ex parte Applicant and its other
consortium partner above was Kshs. 3.355 billion and not Kshs. 360,475,792.6957 and that that exceeded
the tender threshold by more than six times and that despite exhibiting documents in support of its case, the
Board but it did not consider them.
15. According to the deponent, the Board relied on the ISO Certificate which was for only one year and
erroneously held that the Ex parte Applicant did not have 5 years’ experience in providing similar services as
those being tendered for. However, had the Respondent Board cared to look at the Bid Documents, it would
have found that the Ex parte Applicant and its consortium partner had been in business since 2008 and
2007, respectively and that the Ex parte Applicant has shipped over 20 million devices to over 40 countries
over the past 10 years while the consortium partner over 4.5 million high value ICT and electronic products
to customers like Walmart, Best Buy, Sasuni and others. It was therefore averred that the contract
manufacturer of the consortium had supplied over 20 million student laptops in over 70 countries.
16. On behalf of the Applicant, it was reiterated by Mr. Ahmednasir Abdulahi, Senior Counsel that the ex parte
Applicant had a Memorandum of Understanding (MOU) with partners which constituted the consortium of
joint venture with the other company as required by the tender which information was contained in the
Tender Data Sheet and the MOU was part of the Bid Documents that were produced before the Respondent
Board. However, care was not taken to peruse the said documents, which was responsible for the erroneous
decision made on the consortium. There was no requirement in the tender that the consortium be a separate
or special purpose vehicle. In furtherance of this argument, the Ex parte Applicant stated, the fact that the
Notification of Award was sent to the Ex parte Applicant does not mean it bid alone. The MOU should have
informed the Board’s decision that there was a joint venture or consortium MOU since it is not logical to
expect the Notification of Tender to have been sent to all the partners in the consortium but to the lead
bidder.
17. By finding that there was no affidavit by the Ex parte Applicant to prove the existence of the joint venture, it
was submitted that Board effectively shifted the burden of proof to the Ex parte Applicant in its said finding.
However, it was contended that since the bid documents included those on the consortium, it was not
necessary that this issue be contained in an affidavit.
18. According to the applicant, the Respondent Board relied on matters which were not pleaded and failed to
look at all the Bid Documents despite stating in its ruling that it did, thereby making erroneous decisions that
the Ex parte Applicant did not meet the financial as well as the experience criteria. In basing its decision on
un-pleaded matters, the Respondent Board denied the Ex parte Applicant an opportunity to respond to such
un-pleaded matters which was in breach of rules of natural justice.