The High Court Wednesday nullified the Sh24.6 billion tender to supply primary school pupils with laptops, throwing the Jubilee government back to the drawing board on its pet project.
A three-judge Bench comprising Justices Francis Gikonyo, George Odunga and Weldon Korir found that the entire process was botched, and ordered that it be done afresh to ensure fairness and equality to all parties interested in bidding for the tender.
Justice George Odunga said in the judgment that the court could not award the tender to any of the competing parties, arguing that it would be tantamount to supporting an unfair process.
“By awarding the tender to any of the bidders, the Court would have abetted an illegality. It is our view that in order to promote equity and cost effectiveness the tendering process is null and void, and set aside in its entirety,” said Justice Odunga.
The three judges said that the decision to quash the entire process arose from irregularities both in the procuring board and the review board.
Indian firm Olive Telecommunications moved to the High Court after the Public Procurement and Administrative Review Board (PPARB) rescinded its decision to award the firm the tender.
In its findings, the board had said an additional Sh1.4 billion Olive had quoted as additional services in the deal was illegal, as it had not been stated at the beginning of the tendering process.
After quoting Sh23.1 billion in its original bid, the final quote read Sh24.6 billion, which the review board found to be foul play.
American IT firm Hewlett Packard, during the review proceedings, raised a flag over the change in bid prices somehow changed to favour the Indian firm, which was one of the grounds the review board maintained.
HP accused senior government officials of colluding with Olive to inflate the tender quotation, so as to ensure it was awarded the deal.
Olive, however, said that other bidders had also quoted extra costs for additional services, and had gone unquestioned, arguing that the flags raised against their quote were unfair.
PPARB also found the Indian firm’s plan to subcontract third parties in the deal was illegal, hence threw out the Chinese firm from the tender deal.
The judges faulted PPARB for throwing out the Indian firm from the tendering process, arguing that the board does not have the authority to kick out any party from the tendering process.
“The review board has no power to debar anyone from the procurement process. In granting the order to debar Olive from the procurement process, the board usurped its powers,” they said.
The review board had ordered Ministry of Education to continue the procurement process with either HP or Haier, an order the High Court judges declared illegal.
They however disagreed with Olive’s claim that it had not been awarded an opportunity to defend itself, arguing that it was accorded a chance, and was even served with papers inviting it to do the same.
Olive however, the judges said, passed the opportunity as it did not send representatives to give its arguments in the proceedings.
The review board had also found that Olive had failed to meet two crucial requirements of the tender-being and original equipment manufacturer, and having been operational for at least five years.
The judges said that this was one of the flaws of the procuring process.
Justice Odunga said that despite Olive’s ISO certificate having been in existence for just over one year, this was not sufficient proof that it had not been operational for the five-year minimum requirement.
“Being ISO certified for less than five years was not sufficient evidence that it had not satisfied the five-year experience requirement,” said the judge.
Justice Odunga said that in its final determination, the Bench considered public interest, and balanced it with accountability and addressing the applicant’s grievances.
Olive had asked the High Court to compel the Ministry of Education to award it the multi-billion-shilling tender, arguing that it had won the process fairly.
The State had faulted PPARB for basing its cancellation of Olive’s award on the grounds that had not been raised in the request for tender review.