Decision In Application No. 44 Of 2024- Greenworld Big Data Limited Vs. Postal Corporation Of Kenya

Key Facts

Issues

• The Board dismissed the Request for Review and directed the Public Procurement Regulatory Authority to investigate the Applicant for breaching confidentiality. It also ordered the Respondents to proceed with the procurement process and noted that each party would bear its own costs.
• The Board determined that the Applicant's Request for Review relied on confidential information (e.g., unsigned evaluation reports, internal correspondence) obtained without following the legal procedures outlined in Section 67 of the Public Procurement and Asset Disposal Act, 2015. This raised concerns about the Applicant benefiting from a breach of confidentiality and undermined the integrity of the procurement process.
• The Board scrutinized the evaluation process to determine if the Applicant was unfairly disqualified for not providing a CAK license, while other bidders were allowed to submit partnership agreements. It also assessed whether the Interested Party's bid met mandatory eligibility criteria, such as being in business for two years.
• The Board evaluated if its jurisdiction was ousted under Section 167(4)(c) of the Act, considering the procurement contract signed on 15th May 2024 after the standstill period. It also assessed whether the Applicant filed the Request for Review within the 14-day statutory period under Section 167(1) of the Act.
• The Board questioned the legality of affidavits sworn by Ibrahim Kitoo, a public officer with a practicing certificate, under Section 5 of the Oaths and Statutory Declarations Act. It concluded that the Applicant's failure to follow proper procedures rendered the documents inadmissible.
• The Board examined the validity of the contract signed on 15th May 2024, noting that the 14-day standstill period under Section 135(3) expired on 13th May 2024. The contract was signed outside the prescribed timeframe, raising jurisdictional concerns.

Holdings

• The Board found that the Applicant's Request for Review was based on confidential information obtained illegally, rendering it fatally defective and incompetent. The Board dismissed the Request for Review and directed the Respondents to proceed with the procurement process to its lawful conclusion.
• The Board referred the matter to the Director General of the Public Procurement Regulatory Authority for investigation into how the Applicant obtained confidential information, with a view to taking remedial action.
• The Board ruled that each party shall bear its own costs in the Request for Review, as the Applicant's case was found incompetent.
• The Board determined that the Applicant had not followed the prescribed procedures to obtain confidential procurement documents, violating Section 67 of the Public Procurement and Asset Disposal Act. This breach of confidentiality laws invalidated the Applicant's case.
• The Board ordered the Respondents to continue the procurement process for Tender No. PCK/PROC/27/2023/2024 in accordance with the Constitution, the Tender Document, and applicable procurement laws.

Remedies

• D. In view of our findings above, each party shall bear its own costs in the Request for Review.
• B. The Respondents are hereby directed to proceed with the procurement proceedings for Tender No. PCK/PROC/27/2023/2024 for Provision of E-Clearing and Forwarding Platform, E-Integrated Warehousing, and Last-Mile Cargo Delivery System for the Postal Corporation of Kenya to its lawful and logical conclusion while strictly adhering to the Constitution, the Tender Document, the Act, Regulations 2020.
• C. A copy of this decision be served upon the Director General of the Public Procurement Regulatory Authority for purposes of commencing investigations on the circumstances under which confidential documents and information came to the knowledge and possession of the Applicant in the instant Request for review with a view of taking any consequential legal action as may be deemed appropriate in conjunction with other relevant law enforcement authorities to deter such reprehensible conduct in procurement processes.
• A. The Request for Review dated 14th May 2024 and filed on 15th May 2024 be and is hereby dismissed.

Legal Principles

• The Board emphasized that parties cannot benefit from legal breaches, such as using confidential information obtained through unauthorized means. This principle, while not explicitly listed in the schema, was central to the decision and aligns with public policy against rewarding misconduct.
• The Applicant failed to demonstrate that it obtained confidential documents through lawful means. The Board required the Applicant to prove compliance with Section 67(3)(e) of the PPADA and the Access to Information Act, which it did not satisfy. This aligns with the principle that the party alleging a breach must prove their case, including the legality of evidence acquisition.
• The Board held that evidence obtained in breach of procurement confidentiality laws (Section 67 of the PPADA) is inadmissible. This includes documents like unsigned evaluation reports and correspondence between the Procuring Entity and Communications Authority. The decision cited the Supreme Court's Kenya Railways Corporation case, which established that illegally obtained evidence cannot be admitted as it undermines the administration of justice and violates constitutional rights to privacy (Article 31). The Board emphasized that tenderers must follow prescribed procedures (e.g., certified copies under Evidence Act Sections 80-81) to access confidential information, and failure to do so renders evidence inadmissible and the request for review defective.

Precedent Name

• China Overseas Engineering Group Company Limited -vs- Kenya Rural Roads Authority
• Team Engineering S.P.A. v Kenya Railways Corporation
• Amro Insurance Brokers Limited v Kenya Wildlife Service
• Equistar Limited v Accounting Officer, County Government of Kilifi & Ors
• Kobil Petroleum Limited versus Kenya Ports Authority
• Fahmyasin Company Limited v The Accounting Officer, Kenya Urban Roads Authority & Another
• Howard Humphreys (East Africa) Limited in joint venture with Real Plan Consultants Limited v Accounting Officer, County Government of Isiolo and 2 others
• Apex Communication v Ministry of Health

Cited Statute

• Public Procurement and Asset Disposal Act, 2015
• Oaths and Statutory Declarations Act
• Constitution of Kenya, 2010
• Interpretation and General Provisions Act
• Evidence Act, Cap 80 of the Laws of Kenya

Judge Name

• George Murugu
• Alexander Musau
• Lilian Ogombo

Passage Text

• 117. It goes without saying that the request by the Applicant for further and better particulars ... has been made irregularly, too late in time and after the fact and we view this request as a back door attempt by the Applicant in trying to regularize its case ... having based its filed Request for Review on illegally obtained confidential documents and information and which request we decline and consequentially strike out.
• 127. In the circumstances, we find and hold that the instant Request for Review as filed is based on confidential information and documents which were illegally obtained thus rendering it fatally defective and incompetent.
• 132. ... the Board makes the following orders: A. The Request for Review ... be and is hereby dismissed. B. The Respondents are hereby directed to proceed with the procurement proceedings ... to its lawful and logical conclusion. C. A copy of this decision ... for purposes of commencing investigations on the circumstances under which confidential documents ... came to the knowledge and possession of the Applicant.