19. According to the ex parte applicant’s understanding of clause 17 addendum (NO 1), which dealt with the
Original Equipment Manufacturer (herein referred to as the OEM), the fact that the Clause provided that the
OEM should be the lead bidder implied that the OEM and the consortium should be separate entities,
otherwise there would be no need for a lead bidder. This view, according to the applicant, was reinforced by
the fact that clause 3.6 of the Tender Data Sheet required that ‘the bidder and one of the consortium
partners were to have the OEM of the proposed hardware’.
20. It was further submitted that the Board decided the issue of OEM an extraneous definition, which was not
provided for by the PE or addressed by the Ex parte Applicant, but had been provided before the Board and
was not the one provided by the PE hence the definition of OEM which was provided by the PE was
disregarded without any or justifiable reason.
21. According to the applicant the Board discriminated against it on the issue of additional services and value
added services. It was contended that though all the bidders quoted for additional services as well as value
added services, only one party, the ex parte applicant party was penalized for it. To the applicant, the
former was at a cost which all bidders quoted while the latter was free of charge. The failure by the Board to
make the distinction between these two services was, in the applicant’s view a gross error on the record of
the Respondent Board. It was therefore contended that by discriminating against the applicant, the Board
treated the Ex parte Applicant unfairly.
22. It was further asserted on behalf of the applicant that the PE engaged the bidders in a competitive
negotiation at Windsor Golf and Country Club on 10th December, 2013. This, it was contended was a
specially permitted procedure which confers benefits to the PE in that the PE is able to cost some items and
use that information to request a bidder to exclude those items which the PE can obtain at better prices, and
include those items the bidder will be able to provide free of cost. Using the template which was provided by
the PE at Windsor, the Ex parte Applicant separated the quotation for additional services in an annexure to
the price schedule and gave specific break downs of each item so as to make it easier for the PE to choose
any of the item or all items based on its need or budget.
In the original Bid, which was opened on
5 December, 2013, and which contained a global sum inclusive of cost of equipment and additional services
th
as was required under the original tender specification and tender conditions, the ex parte Applicant did not,
submit the quotation for additional services separately. In the ex parte Applicant’s view its bid price
excluded the additional services and was, therefore, the lowest bid.
23. With respect to the issue of its eligibility as a tenderer, the ex parte applicant’s position was that the Board
decided matters beyond the scope of the Grounds of Review as presented by the Applicants before it. The
only objection to the Ex parte Applicant’s eligibility raised in the Review before the Board was that it was not
an OEM which was accordingly answered by the rejoinder by the PE in the review proceedings that all
bidders including the Ex parte were qualified to bid. No one raised issues of absence of joint venture or
financial turnover or lack of necessary experience on the part of the Ex parte Applicant. In any event, the
parties applying for review could not have been expected to raise these issues as they did not have the
documents relating to the issues as the documents are confidentially held by the PE by law. Therefore, such
issues would not have been grounds for review in the first place. Also, the grounds for review of award
could not have been made on speculation as to the qualifications of the Ex parte Applicant. However, had
the issues been raised, it was the ex parte applicant’s submission that it would have addressed them
adequately.