Automated Summary
Key Facts
Prudential Sourcing Limited was disqualified from Tender No. KEMSA/PROC/RT21/2020 for Procurement and Installation of ICT Infrastructure due to an HPE Partnership Certificate provided by its joint venture partner, Integrated Supplies & Consultancy Ltd. The Procuring Entity (Kenya Medical Supplies Authority) evaluated bids in three stages, disqualifying the Applicant at Preliminary Examination. The Board ruled that the evaluation violated the Tender Document's procedures and Section 83 of the Public Procurement and Asset Disposal Act, as verification of the certificate was conducted improperly during evaluation rather than post-qualification. The Board ordered the Procuring Entity to re-admit the Applicant's bid for re-evaluation at the Technical Stage and restart the procurement process within 14 days.
Issues
- The first issue for determination was whether the Procuring Entity evaluated the Applicant's bid at the Preliminary Evaluation Stage in accordance with Clause 8 of Stage 1. Preliminary Examination read together with Clause 8.1 of Section 1. Instructions to Tenderers of the Tender Document and sections 79 (1) and 80 (2) of the Public Procurement and Asset Disposal Act, 2015. The Board found that the Applicant provided an HPE Partnership Certificate from its joint venture partner, which should have been sufficient for preliminary evaluation under the tender criteria.
- The second issue addressed whether the Procuring Entity's verification exercise on the Applicant and the Interested Party was done in accordance with section 83 of the Public Procurement and Asset Disposal Act, 2015. The Board concluded that the verification exercises conducted by the Procuring Entity were unprocedural, as they occurred during the Preliminary Evaluation Stage and after the award had already been made, violating the Act's requirements for post-qualification due diligence.
Holdings
- The Board determined that the Procuring Entity's verification exercises on the Applicant and Interested Party were unprocedural, contravening Section 83 of the Act. Verification of documents like the HPE Partnership Certificate should only occur after tender evaluation (post-qualification) but prior to award. The Board set aside the award and directed a re-evaluation of the Applicant's bid at the Technical Evaluation Stage.
- The Board found that the Procuring Entity failed to evaluate the Applicant's bid at the Preliminary Evaluation Stage in accordance with Clause 8 of Stage 1. Preliminary Examination and sections 79(1) and 80(2) of the Act. The Applicant provided an HPE Partnership Certificate through its joint venture partner, M/s Integrated Supplies & Consultancy Ltd, which should have been sufficient to meet the mandatory requirement. Disqualification for this criterion was deemed unfair and not in compliance with the tender evaluation procedures.
Remedies
- Since the procurement process has not concluded, each party shall bear its own costs in the Request for Review.
- The Procuring Entity is directed to re-admit the Applicant's bid at the Technical Evaluation Stage with other qualified bidders and conduct a re-evaluation there.
- The Procuring Entity must proceed with the procurement process to its conclusion, including making an award within 14 days from the decision date, subject to proper due diligence as per the Act and Tender Document.
- The Procuring Entity's Notification of Unsuccessful bid to the Applicant dated 21st May 2020 is cancelled and set aside.
- The Procuring Entity's Notification of Award to M/s Next Technologies Limited (the Interested Party) dated 21st May 2020 is cancelled and set aside.
Legal Principles
- The Board held that the Procuring Entity's verification of HPE Partnership Certificates during the Preliminary Evaluation Stage was unprocedural and ultra vires Section 83 of the Act, which requires due diligence to be conducted post-qualification (after full evaluation) but prior to tender award. This violated constitutional principles of good governance and transparency under Article 10(2)(c).
- The decision underscores the necessity for procuring entities to strictly adhere to the evaluation and due diligence procedures outlined in the Public Procurement and Asset Disposal Act, 2015. Deviations from these procedures, such as premature verification of bid documents, render decisions invalid under the Rule of Law.
Precedent Name
Republic v Public Procurement Administrative Review Board; Principles Styles Limited & another (Interested Parties) Ex Parte Accounting Officer, Kenya Water Towers Agency & another
Cited Statute
- Public Procurement and Asset Disposal Act, 2015
- Public Procurement and Disposal Regulations, 2006
Judge Name
- Mr. Nicholas Mruttu
- Mr. Alfred Keriolale
- Ms. Faith Waigwa
Passage Text
- The Procuring Entity is hereby directed to re-admit the Applicant's bid at the Technical Evaluation Stage together with all other bidders who made it to Technical Evaluation and conduct a re-evaluation at the Technical Evaluation Stage.
- the Board finds that the Procuring Entity's verification exercise on the Applicant and the Interested Party was not done in accordance with section 83 of the Act.
- the Board finds that the Procuring Entity failed to evaluate the Applicant's bid at the Preliminary Evaluation Stage in accordance with Clause 8 of Stage 1. Preliminary Examination read together with Clause 8.1 of Section 1. Instructions to Tenderers of the Tender Document and sections 79 (1) and 80 (2) of the Act.