The matter arises out of the decision of the Public Procurement Administrative Review Board made on 4th June 2013. The decision pertained to a request for review of the award of Tender No KU/TNDR/43/PSDBS/2013-2014 for Provision of Sanitary Disposal Bins Services to the 2nd Interested Party by the 1st Interested Party on 9th May 2013. After hearing the parties to the application for review, the respondent rendered its decision dismissing the application for review and directing the 1st Interested Party to proceed with the tendering process.
The applicant was dissatisfied with the decision of the respondent and therefore filed an application brought by way of Notice of Motion dated 17th June 2013 pursuant to leave granted in this matter on 14th June 2013 seeking the following orders
1. That orders of certiorari seeking to quash the decision of the PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD of 4th June 2013 regarding the Applicant’s tender for supply of sanitary disposal bins services made to the 1st Interested Party. (sic).
2. That orders of mandamus against the PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD directing and ordering the said Board to uphold and award the Applicants tender for sanitary disposal bins services made to the 1st interested party as only full responsive tender. (sic).
3. That the costs of this application be provided for the applicant.
1. Whether the orders of certiorari seeking to quash the decision of the PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD of 4th June 2013 regarding the Applicant’s tender for supply of sanitary disposal bins services made to the 1st Interested Party should be granted?
2. Whether the orders of mandamus against the PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD directing and ordering the said Board to uphold and award the Applicants tender for sanitary disposal bins services made to the 1st interested party as only full responsive tender should be granted?
RESOLUTION OF ISSUES
To start with, judicial review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision making process. The purpose of the remedies availed to a party under the judicial review regime is to ensure that the individual is given fair treatment by the authority to which he has been subjected. The purpose is not to substitute the opinion of the court for that of the administrative body in which is vested statutory authority to determine the matter in question. In the case of Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001, the Court of Appeal set out the parameters of judicial review when it held as follows:
To deal first with the alleged failure by the respondent to protect the applicant’s patent rights, the Court notes that the jurisdiction of the respondent with regard to a party dissatisfied with the decision of a procuring entity is clearly spelt out in the provisions of the Act. Section 93(1) which provides that , any candidate who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the regulations, may seek administrative review as in such manner as may be prescribed.
On the issue concerning the respondent’s failure to insist on compliance with the provisions of Regulation 47(1) of the Public Procurement and Disposal Regulations. This regulation pertains to the conduct of a preliminary evaluation by the evaluation committee of a procuring entity, and regulation 47(1)(f) requires that it determines whether all the required documents and information have been provided.
The Court having read the ruling by the respondent dated 4th June 2013. It noted in particular the respondent’s evaluation of the applicant’s grounds of review, particularly with regard to the provisions of section 64 of the Act and regulation 47 and 48 of the regulations made under the Act. The respondent found that the provisions of the section and the regulations apply at the preliminary stage of the evaluation of a tender, and that the 1st Interested Party had found that all the tenderers were responsive at this preliminary stage.
From the evidence adduced before the judge therefore, it was clear that the respondent properly considered all the matters it was required to consider, and acted within its jurisdiction in coming to the decision that the 1st Interested Party had properly awarded a tender to the 2nd Interested Party. There is nothing in the pleadings before me that demonstrate any procedural impropriety or unreasonableness that would justify interference by this Court in the respondent’s decision.
In the circumstances, the court dismissed the application with costs to the respondent and the Interested Party.