AQ AEX e Amersi LLP NAMANGA FOREX BEREAU LIMITED. ‘THE REPUBLIC OF KENYA ‘THE PUBLIC PROCUREMENT ADMINISTRATIVE REVIE APPLICATION NO. 82 OF 2023, BETWEEN AND ‘THE ACCOUNTING OFFICER KENYA AIRPORTS AUTHORITY nssosssnen AST RESPONDENT KENYA AIRPORTS AUTHORITY... son. 2ND RESPONDENT AND WESTLANDS FOREX BEREAU LTD. INTRESTED PARTY A 1 2 ‘THE INTERESTED PARTY SUBMISSIONS INTRODUCTION What is before the tribunal isa review application seeking orders that (a) Kenya Airports Authority breached the provisions of the Public Procurement and disposals Act by awarding the tender to Westlands Forex Bureau Bxchange Limited despite the discrepancy on its tender bid documents; (b) The letter of award issued to Westlands Forex Bureau Exchange Limited and arising from tender no KAA/OT /MBD/0172/2022-2023 for the development and management of currency/Forsx outlets at Jamo" Kenyatta. International Airport terminal 1 C and. all ‘consequential actions and or contract entered into between Westlands Forex Bureau Exchange Limited and Kenya Airports Aithorty a0 @ result of the aforesaid tendering process andor award be and is hereby quashed and set aside; (6) A declaration be and is hereby issued that Namanga Forex Bureats Limited "won the tender by Kenya Airports Authenty” for” the development and management of curreney/Forex outets at Jomo Kenyatta International Airport terminal 1 C and relerencal as KAA/OT ‘/MBD/0172/2022-2023; (@) A tote of award arising from tender no KAA/OT /MBD/O172/2022- 2023 for the development and management of currency Forex ostets at Jomo Kenyatta Intemational Airport terminal 1 be and is hereby ordered iesued ‘The application for review is opposed by the Procuring Entity and the Interested Party vide its Replying Affidavit and Preliminary Objection FACTS IN BRIEF‘This matter arises from a tender that was floated by the 2° Respondent for the provision of forex exchange services at JKIA Airport on the 13° of June 2023. ‘The Interested Party proceeded to bid on the same by entering a total bid price of USD 48,000 and an RFX receipt dated 19% June 2023 was system generated to confirm the bid price of the same. The 2 Respondent then scheduled the opening date for the tender on the 29% of August 2023, which date was postponed severally tothe 25% of July 2023, It is worth noting that none of the parties to the suit have contested all extensions prior to this and the only one that remains in contention is the extension from the on the 25! of July 2023 from 11,00AM to 3.00PM. ‘The 2ot Respondent testified that the extension on the 25*of July 2023 was due to system downtime which rendered the opening impossible as, the tendering process was done online. Subsequently at 3.00 PM the tender opening was conducted in which the interested party was declared the winner and was subsequently notified on the of October 2023 vide a leter of the award which was accepted and returned to the 2 Respondent, ‘The Interested Party was aware that the notification of award was issued on the 9° of October and was served by a request of review on ‘the 25% of October which is outside the statutorily mandated timeline of 14 days from the notification of award. The 20 Respondent also inregularly and unlawfully filed a further Amended Response outside of the statutorily mandated S-day period leading to the Interested Party fling a Preliminary Objection alongside its Response for the documents to be struce ot. The matter then came up for hearing on the 8% of November 2023, wherein the Interested Party raised concerns to the fact that it had not ‘been served with the Applicants bundle of documents and the Board directed that the same be served on the Interested Party and the matter bbe disposed of via written submissions, ULD BE STRUCK OUT ON ‘THE BASIS THAT IT IS TIME BARRED? ‘The Interested Party submits that the Applicants request far review that fled on the 25% of October 2023 was filed outside the mandated statutory timelines expounded under Section 167 of the Public Procurement and Disposal of Assets Act.10 u “4 18 16 7 ‘The Interested Party further submits that the notice of award that was served on the 9 of October 2023 and the same is evidenced by the letter dated 9 October 2023 at page 150 of the Applicants bundle. While the Applicant contends it received communication of the award of the tender on the 13% of October 2023 through an illegible email it ‘has produced in page 151 of the Applicants bundle to the contrary the Notification of Award shows that st was issued on the 9th of October 2023, and as such request for review was filled in violation of the ‘mandatory 14-day period stipulated under section 167 the Public Procurement Act. From the provisions of Section 167 of the Public Procurement and Disposal of Assets Act time starts to run for the purpose of Section 167. (2) afer notification of award which in this case shows that it was issued fon the 9% October, 2023 and not the 13 October, 2023 as alleged by the Applicant. We therefore submit that time started running on the date appearing fon the notification of award as there is only one notification of award ‘with one date and that is the 9 October, 2023 and not the 13% October, 2023, ‘Accordingly in the review application before the board, it wes incumbent ‘upon the Applicant to place before the board evidence to satisfy the board that the notification of award was made on the 13% October, 2023, land not the % October 2023 which appears on the face of the notification of award. WHETHER THE INTERESTED PARTY WAS AWARDED THE TENDER PROCEDURALLY? ‘The Interested Party maintains that it was rightfully awarded the tender. To assess this claim, we will examine the tendering process and the alleged discrepancy in the Interested Party's bid. I, Tendering Process and Procedures It is undisputed that the tender for the provision of forex-related services at JKIA airport was issued on June 13, 2023, and that Submissions were to be made electronically. The’ 2nd Respondent subsequently opened the online portal for tender submissions, as evidenced by the system generated KAA Rx Response Receipt dated ‘June 19, 2023, at 7:39 PM. (See Rix Receipt Marked AAI attached to ‘he supporting alfidavit dated November 3, 2023.) ‘The Interested Party submitted its tender for USD 45,000, as evidenced by the system generated KAA RFx Response Receipt dated July 25, 2023, at 3:00 PM. The 2nd Respondent initially scheduled the tender18 19 20 aa 22 23 opening for August 29, 2023, but it was subsequently postponed to July 25, 2023. None of the parties have disputed this procedure. ‘The sole point of contention arises from the Applicant's assertion that the tender opening on July 25, 2023, was extended from 11:00 AM to 3:00 PM without the issuance of an addendum to justify the extension, ‘The Interested Party submits that the extension was carried out lawfully and in accordance with the 2nd Respondent's right to adjust the tender opening timelines under the initial tender opening. This right is explicitly stated in Clause 7.3 of the tender document, which states: “7.3 To provide prospective Tenderers with adequate tine to consider fan addendum and incorporate i into their Tenders, she Procuring Entity may, at its discretion, extend the deadline or the submission of ‘Tenders, pursuant to ITT 22.2, Based on the foregoing, itis evident that the extension was carried out im accordance with the tender document's provisions, and the 2nd Respondent had every right to extend the tendering period on July 25, 2023, from 11:00 AM to 3:00 PM. Further the Interested Party contests the fact that the averment by the Applicant that an Addendum ought to have been issued is untrue and misleading as Addendums were only required where the extension ‘made changes to the material ofthe tender as highlighted below: 7 Amendment of Tendering Document 7.1 At any time prior to the deadline for submission of Tenders, the Procusing EnUty may amend the tendering document by issuing addenda, 7.2 Any addendum iasued shall be part ofthe tendering document and shall be communicated in writing to all who have obtained the tendering document from the Procuring Entity in accordance with TTT 63. The Procuring Entity shall also promply publish the addendum ‘on the Procusing Entiy’s webpage in accordance with ITT 7.1 ‘The specifications of the tender document was not affected by the extension from 11.00AM to 3.00PM, as the parties had already submitted their bids and the delay was occasioned by a mere technological failure. ‘The Interested Party submits that Article 227 of the Constitution requires procuring entities to comply with the principles of fairness, equity, transparency, competitiveness, and costeffectieness when ‘contracting for goods or services, For the public procurement process to be fair, the entire process must be considered on its merits and should not be dismissed on minor grounds,24 25 26 a 29 Im this case, the tendering procedure was simply extended for a few hours due to a technical glitch that had no impact on the sanctity of the tendering process. Therefore, this should nat be used 70 nullify the award to the Interested Party as the extension of the tender opening time was a minor deviation which did not affect the faimess of the tender process. TL Alleged discrepancy in the Interested Party's Bid ‘The Interested Party submits that it never submitted that it never submitted a bid of USD 6,500 and that the alleged tender quotation register under page 152 ofthe Applicants bundle is inadmissible before this Board, It is worth noting that the only admissible document that has been properly filled to illustrate the bid price is the KAA RFx Response Receipt that clearly highlights the bid price of USD 41,500. > See the RFx Receipt Marked AAI attached to the supporting affidavit dated 3rd November 2023) ‘The RFx Response receipt as produced is the only conclusive evidence in proof of the actual amount submitted by the bidders to the PE in accordance with Section 65 of the Evidence Aet on Primary evidence. We further submit that the Procuring Entity did not raise an issue of the alleged discrepancy on the Interested Party's bid amoant since as ‘material the Interested Party's bid price was USD 41,500. Any discrepancy in the bid amount ought to have been brought to the Interested Parties attention by the procuring entity. This position was Upheld in the case of Republic v Public Procurement Administrative Review Board & another; Premier Verification Quality Services (PVQS) Limited (Interested Party) Ex Parte Tuy Austria Turk [2020] ‘eKLR where Justice John Mativo under Para 42 opined as follows “The contracting officer either shall give the bidder an epportunity to ‘cure any deficiency resulting trom a minor informality or regularity in ‘2 bid oF waive the deficiency, whichever is to the advantage of the Government.” [| ‘The Interested Party further submits that it never submitted that it never submitted a bid of USD 36,500 and that the alleged tender quotation register under page 152 of the Applicants bundle is Inadmissible before this Board and is filed contrary to section 80 and 81 of the Evidence Act Cap 80 of thaw laws of Kenya which states that: 80, Certified copies of public documents (1) Bvery public officer having the custody of a public document which !any perbon has a right to inspect shall glve that person on demand a Copy’ of it on payment of the legal fees therefor, together with &31 2 33 34 certificate written at the foot af such copy that iti a true copy of such document or part thereof, as the case may be, and such certificate shall, bbe dated and subscribed by such ofcer with his name and his oficial tite, and shall be sealed whenever such officer is authored by law to ‘male use ofa seal, and such copies so certified shal be called certiied copies. (2) Any officer who by the ordinary course of official duty is authorized to deliver copies of public documents shall be deemed to have the ‘custody of such documents within the meaning of this ection, 1, Proof by certified copies Certified copies of public dacuments may ‘he pociiced in proof ofthe contents of the documents er parts of the documents of which they purport tobe copies. ‘The above position was expounded in the case of fare Bstate the Late ‘Alice Nyambura Wainana (Deceased) [2021] eKLR where under Paragraph 14 the court in determining the admissibility of evidence ‘opined as follows: “14, Admissibility of documentary evidence is explicitly provided for under the Evidence Act Cap 80 Laws of Kenya. The rontents of document can be proved by either primary or secondary evidence Secondary evidence is elaborated on under Section 66 of the Act to Include certified copies, copies of the orignal, counterparts of documents and oral accounts of documents provided they mect the trteria set out under Section 68 ofthe Evidence Ack.” ‘The aforementioned criteria includes situations where the original document is in possession of the adverse party or a person out of the reach of the court or any person legally bound to produce it, where the contents are admitted in writing by the adverse party, wher> the original is lost or destroyed or cannot be produced within reasonable time, the original is not easily moveable, the original is a public decument, the original is a certified copy and where the original consists of numerous fsccounts of other documents ifthe condition set out therein have been met” ‘The Applicant in this case has neither produced any origiral document or any certified counterparts of the same and the documerts cannot be ‘sdmitted as evidence before this Board, Arising from the above we submit that the tender/quotetion register ‘under page 152 of the Applicants bundle is inadmissible and ought to ‘be expunged from the Boards records. WHETHER THE APPLICANT HAS LAID A BASIS FOR THE AWARD ‘OF THE TENDER AS SOUGHT OUT IN PRAYER (C) AND (D) OF THE REVIEW ‘There is no dispute the applicant seeks the following reliefs35 37 38 29 (@) Kenya Airports Authority breached the provisions of the Public Procurement and disposals Act by awarding the tender to Westlands Forex Bureau Exchange Limited despite the discrepancy on its tender bid documents (@) The leter of award iesued to Westlands Forex Bureau Exchange Limited and arising from tender no KAA/OT /MBD/0172/20222028 for the evelopment and management of eurrency/Forex outs at Jomo Kenyatta Intemational Airport terminal 1 C and all st consequential actions and of contracts entered into between Westlands Forex Bureal Exchange Limited and aside. Airports Authority as a result of the aforesaid tendering process and or award be and is hereby quashed and fet aside ‘The basis for the above reliefs is outlined in paragraph 9A cf the request for review where the applicant avers that “THAT the Applicant therefore states that the tender was marred with irregularities and legalities and was not done in accordance -with the law and the rules set by the procurement entity” I the tender was marred by iregularities and illegalities, then the said isregularities and illegalities cannot constitute a lawfil basis. for awarding the tender to the applicant as the law prohibits courts from countenancing or condoning illegalities and therefore the whole procurement process ought to be nullified, ‘The procuring entity itself reiterates that it perpetrated illegalities in the tendering process in its Amended Response. Our submissions are anchored on the case of Alberta Mae Gacie vs. Attorney General & 4 (Others [2006] eKLR where the court states that ‘po court ought to enforce an illegal contractor allow itself to be made the instrument of enforcing the obligations alleged to arise ot of & contract or transaction which is legal, ifthe legality i duly brought to the notice ofthe court; and las, that its fete law “hat where an fact is a nullity itis void and every proceeding founded on it is also in fave a nulity Arising from the above, the issue that inevitably follows from the ‘aforementioned is whether or not the Board can proceed to award a tender to the Applicant as sought in prayer (c) and (d) of the review application despite the submission by both the applicant and the PE that the decision by the 2nd Respondent was irregularities and illegalities. ‘We submit that the tendering process having been marred by illegality cannot be the lawful basis for awarding the tender to the Applicant a sought in the application for review.40 a 2 43 44 45 WHETHER THE AMENDED RESPONSE BY THE PE OFFENDS RULE 12 OF THE PROCUREMENT & ADMINISTRATIVE REVIEW CIRCULAR ‘NO. 2/2020 & SHOULD BE STRUCK OUT We submit that the amended response submitted by the 2 Respondent offends the mandatory provisions of Section 2 of the Procurement and Administrative Review Circular No. 2/2020 and that the amended response is not properly before the Board due to being filed five days after the statutory mandated perio. ‘This position was upheld in Judicial Review Application 540 of 2017 Republic v Public Procurement Administrative Review Board; Kenya Power & Lighting Company Limited (Interested Party) Exparte Transcend Media Group Limited [2018] eKLR s follows: Section 168 of the Act provides that upon receiving a request for a review under section 167, the Secretary tothe Review Board shall notify the accounting olficer af procuring entity ofthe pending review ‘rom the Review Board and the suspension af the procurement proceedings Jn such manner as may be preseribed. The effect ofa stays to suspend ‘whatever action Is beg stajed, including applicable time limits, a stay prevents any further steps being taken thet are required to be taken, and is therefore time ~specific and time-bound.” Section 2 of the Procurement and Administrative Review Circular No. 2/2020 mandates that the procurement entity ought to fleits response ‘within 5 days of sevice which was already done and the same filled on the 30! October 2023 before the deadline, ‘The 2% Respondent then proceeded to file an amended response outside of the statutorily mandated timeline of 5 days which fails to adhere to the provisions outlined in the circular and consequent ought to be struck out ‘The strict adherence to rules of procedure was out in the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR where the court dismissed a matter where the parties had failed to comply with set out timelines. “tought to be clearly understood thatthe courts have nat blittled the role of procedural rules. It is emphasized that procedural rules are tools designed to facilitate adjudication of disputes they ensure orderly ‘management of cases. Courts and litigants (and their lawyers) alike ‘re, ths, enjoined to abide strictly by the rules” Additionally, it is the Interested Party’s position that the 2nd Respondent is prohibited by Section 120 of the Eviderce Act from reneging from the stance adopted in its response dated 30th October 2023,46 4a 48 49 120, General estoppel When one person has, by his declaration, actor ‘omission, intentionally cated or permitted ancther person to believe a thing to be true and to act upon such belie, neither he nor his representative shall be allowed, in any suit oF proceeding between himself and such person or his representative to deny the truth of that thing ‘This position was further illustrated in the case of Ayman Hifiawi v Anwar Hussein [2014] eKLR where the court opined as follows: In Section 120 of the Bvidence Act, (Cap 80), the following is provided for in what is termed "general estoppel “When one person has, by his declaration, act or omission, intentionally caused or permitted atother person to believe a thing to be true and to ‘act. upoa stich belief, neither he nor his representative shal be allowed, Jn any sult or proceeding between himeel and such pereon or his ‘representative, deny the truth of that thing.” ‘This principle was also stated in the finding of Denning LI in Combe w Combe (1951) 2 KB 215, which is persuasive, when he sated “The principle, as understand it is that, where one party has, by his word or conduct, made tothe other a promi or assurance which sas Intended to alec the legal relations between them and to be acted on accordingly, then, once the other party hs taken him at hie word and {acted on if, the one who gave a promise or assurance cannot afterwards be allowed to revert to the previous legal relations as no sich promise oF assurance had been made by him, Dut he must accept ther legal ‘lations subject to the qualification which he hinself as %0 Introduced, even though it la not supported in point af law by any consideration but anly by his word, Applying the foregoing principal to the case, its essential to highlight that the 2nd Respondent had previously submitted a response, dated 30th October 2023, wherein they unequivocally asserted thatthe tender process in question was conducted in a procedurally sound manner, ‘The 2nd Respondent, in their initial response, affirmed the legitimacy of the process. Consequently, and based on the foregoing itis the Interested Party's position that they are now estopped from departing from this original position and asserting that the process was, infact, un-procedural ‘The principle of general estoppel, as enshrined in Section 120 of the Evidence Act, prohibits such a contradiction or rescission of a prior stance, and this principle must be upheld in the interest of maintaining consistency and faimess in this matter, ‘concLUSION‘50. From the foregoing submissions, the Interested Party has proved that the pleadings as filled by the’ Applicants and the 2! Responded ‘Amended Response, 51 Honorable members, the Interested Party has further illustrated it reasonable belief of well-orchestrated plot to short change the tax payer and deprive it ofthe tender award. 52 Honourable Members, the barbarians are at the gate and itis prudent that in the defense of civility this Board in the interest of Justice to declare that the tender was procedurally done and that the Interested Party was the rightful winner. DATED at NAIROBI this..th...day of. November 2023 DRAWN & FILED BY:- Alex and Amerst LLP ‘Advocates Peponi Plaza, 3° Floor, Block A Mwanai Road, Westlands P.O. Box 47845-00100 Naira Email: 17.00. Tel: 0111392121 George Gibert Advocate, ‘Uchumi House 8! Foor, NAIROBI ‘Beall:‘THE REPUBLIC OF KENYA ‘THE PUBLIC PROCUREMENT ADMINISTRATIVE RE\ ‘APPLICATION NO. 82 OF 2023 BETWEEN NAMANGA FOREX BEREAU LIMITED. AND ‘THE ACCOUNTING OFFICER KENYA AIRPORTS AUTHORITY... KENYA AIRPORTS AUTHORITY (PROCURING ENTITY), s.:18" RESPONDENT 2% RESPONDENT WESTLANDS FOREX BEREAU LTD.. LIST OF AUTHORITIES INTRESTED PARTY 1. Margaret Nyiha Gatambia & 2 others v Peninah Ngechi Njaaga & 3 others [2019] Exar 2. Republic vs Barisa Wayu Matuguda (2011) eKLR 4. Judicial Review Application 540 of 2017 Republic v Publie 2rocurement ‘Administrative Review Board; Kenya Power & Lighting Company Limited (Interested Party) Exparte Transcend Media Group Limited [2018] eKLR 4 Nicholas Kiptoo Arap Korir Salat v Independent Blectoral and Boundaries Commission & 6 others [2013] eKLR 5. Ayman Hijjawi v Anwar Hussein (2014) eKLR 6. Inre Estate the Late Alice Nyambura Wainana (Deceased) [2021] eKLR 7. Republic v Public Procurement Administrative Review Board & another; Premier Verification Quality Services (PVQS} Limited (Interested Party) Ix Parte Tuy Austria Tutk [2020] eKLR 8. Republic v Kenya Airports Authority Ex-Parte Seo & Sons Limited [2018] eKLRDATED at NAIROBI this. hp ..day of NNovember....-:2023 DRAWN & FILED BY: Alex and Amersi LLP ‘Advocates Peponi Plaza, 3 Floor, Block A ‘Movanzi Road, Westlands P. 0. Box 47845-00100 Nairobs Email: infowaalaw.co.ke Tel: 0111392121 ‘TO BE SERVED UPO! Kenya Airports Authority George Gibert Advocate, North Airport Road Uchuumi House 8 Floor, NAIROBI NAIROBI Email: procurementi@kaa.go.ke Email: corepilbe-tligmail. com