By The Weekly Vision Team
Spenomatic Kenya Ltd. has suffered a devastating blow yet again after the Public Procurement Administrative Board cancelled a multi-million shilling tender it had been awarded by East African Portland Cement. In a ruling dated December 1, 2023, the Board noted that the EAPC Evaluation Committee failed to comply with the orders issued by the board on October 16, 2023, in a request for review number 65 of 2023.
The board had nullified the award of tender No. EAPCPLC/RFP/009/2023 for the design, supply, installation, and commissioning of a grid-tied solar PV plant. The board ordered the tender and evaluation committee to admit Central Electricals International Ltd., together with all other tenders that were determined responsive for re-evaluation, and to continue with the tender process to its logical conclusion within 14 days from the date of this ruling (16 October 2023).
The board therefore ordered, “The letter of notification of award issued to the interested party (Spenomatic Kenya Ltd.) tender No. EAPCPLC/RFP/009/2023 for the design, supply, installation, and commissioning of a grid-tied solar PV plant be and is hereby set aside.”
Following the nullification, according to the minutes of the tender re-evaluation committee held on October 25 and 26, 2023, only Spenomatic Kenya Ltd. had met the pass mark in the evaluation by scoring 88.96%. The Evaluation Committee therefore recommended the award of the tender to Spenomatic Kenya Ltd. at its quoted total bid price of Ksh. 572,790,267, inclusive of all taxes. On October 27, 2023, the EAPC head of supply chain, Moses Sudi, gave his professional opinion and concurred with the evaluation committee to award the tender to Spenomatic Kenya Ltd.
Tenderers were notified of the outcome of the evaluation of the subject tender via letters of notification of intention to award dated October 30, 2023. However, on November 10, 2023, being dissatisfied with the decision, Mohamed Taki Rashid, who is the head of marketing and tendering at Central Electricals International Ltd. through Nyamu & Nyamu Advocates, requested a review of tender No. 94 of 2023.
In the review request, Rashid claimed that the evaluation committee did not evaluate his tender in accordance with the decision of the board in application No. 65 of 2023, as they failed to adhere to the findings of the board. It is imperative to note that during the re-evaluation that was ordered by the board, the evaluation committee reduced the score from 77.8% to 62.24%, thereby departing from the decision of the board.
He further submitted that his departure from the decision and direction of the board was tantamount to disregarding judicial authority and the Constitution and needed to be treated with the contempt it deserved. It was also observed that the procurement entity (EAPC), in its letter dated October 30, 2023, cited new reasons for disqualification of its tender, departing from the reasons set out in the letter dated September 26, 2023.
It is claimed that such departure points are biased and a predetermination to disqualify the bid for Central Electricals International at any cost in favour of Spenomatic Kenya Ltd. The Evaluation Committee, however, claimed that Central Electricals International attached a certificate of completion to a client’s letterhead, which was not signed by the client and therefore failed to meet the requirements under 1a.
The board, however, faulted the evaluation committee for failing to give reasons why it did not score full marks when the evaluation criteria were fully met. The board further noted that in the re-evaluation of the tender, Central Electricals International scored 0 marks out of the possible 3 marks, while in the first nullified application; it scored 2 marks out of 3 marks.
The ruling reads, “It is not clear why the previous two marks were withdrawn, noting that the award of two marks was quite fair.” The board also noted that under the quality management plan, Central Electricals International had scored 0 marks out of 4 marks in the re-evaluation of the tender, while in the cancelled tender, it had scored 2.7 marks.
The ruling reads, “It is not clear, and there is no justification why no marks were awarded for this requirement in view of the fact that what had been provided under the scoring criteria is a maximum score and view of the fact that the applicant had previously been scored having provided a quality management plan.”
The final orders by the board read, “The letter of notification of award dated October 30, 2023, issued to the interested party (Spenomatic Kenya Ltd.) tender No. EAPCPLC/RFP/009/2023 for the design, supply, installation, and commissioning of a grid-tied solar PV plant is and is hereby set aside.”
The board ordered the tender and evaluation committee to admit Central Electricals International Ltd., together with all other tenders that were determined responsive for re-evaluation, and to continue with the tender process to its logical conclusion within 14 days from the date of this ruling (1st December 2023).