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	Public procurement in Kenya is a critical process that ensures public funds are spent transparently and efficiently to deliver goods, services, and infrastructure. Governed by the Public Procurement and Asset Disposal Act, 2015 (PPADA), the process aims to promote fairness, accountability, and competition. However, disputes over tender awards are increasingly common, often due to allegations of unfairness, bias, or non-compliance with legal requirements. This article explores your rights in such disputes and provides a detailed guide on how to challenge unfair tender awards under the PPADA.
Public procurement involves the acquisition of goods, services, or works by government entities using public funds. The PPADA, alongside the Public Procurement and Asset Disposal Regulations, 2020, establishes a framework to ensure transparency, competitiveness, and fairness. The Public Procurement Regulatory Authority (PPRA) oversees compliance, while the Public Procurement Administrative Review Board (PPARB) handles disputes.
Despite these safeguards, disputes arise when bidders believe tender processes are flawed, discriminatory, or manipulated. Common issues include:
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Irregular tender evaluations: Bidders may allege that evaluation criteria were misapplied or ignored.
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Lack of transparency: Failure to provide reasons for tender decisions or disclose evaluation details.
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Conflict of interest: Allegations of favoritism or corruption in the award process.
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Non-compliance with PPADA: For example, failure to advertise tenders or adhere to timelines.
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If you are an aggrieved bidder, understanding your rights and the legal avenues for redress is essential.
<h3 dir="ltr">Your Rights Under the Public Procurement and Asset Disposal Act, 2015</h3>
The PPADA outlines several rights for bidders participating in public procurement processes. These rights are designed to ensure fairness and provide mechanisms to challenge irregularities. Key rights include:
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Right to Fair Treatment: Section 3 of the PPADA mandates that procurement processes be conducted fairly, transparently, and in a non-discriminatory manner. Bidders have the right to equal treatment in the evaluation and award process.
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Right to Access Information: Under Section 67, procuring entities must provide clear tender documents, including evaluation criteria, and publish tender notices in accessible platforms. Bidders can request written reasons for tender decisions within a specified period.
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Right to Challenge Decisions: Section 167 allows aggrieved bidders to request a review of procurement decisions by filing a complaint with the PPARB. This right extends to any bidder who believes the procurement process violated the PPADA.
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Right to a Transparent Review Process: The PPARB is mandated to handle disputes impartially, and bidders have the right to a hearing and a reasoned decision within 21 days of filing a review request (Section 171).
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Right to Judicial Review: If dissatisfied with the PPARB’s decision, bidders can seek judicial review in the High Court under Section 175 of the PPADA.
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These rights empower bidders to hold procuring entities accountable and seek redress for unfair practices.
<h3 dir="ltr">How to Challenge Unfair Tender Awards</h3>
Challenging an unfair tender award involves a structured process under the PPADA. Below is a step-by-step guide to navigating this process:
Step 1: Identify the Grounds for Complaint
To challenge a tender award, you must identify specific violations of the PPADA or procurement regulations. Common grounds include:
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Non-compliance with tender documents: For example, the procuring entity ignored mandatory requirements or applied unstated criteria.
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Procedural irregularities: Such as failure to notify bidders of the award or rushed evaluation processes.
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Bias or favoritism: Evidence of conflict of interest or preferential treatment.
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Breach of transparency: Failure to provide reasons for rejecting a bid.
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Gather evidence, such as tender documents, correspondence, and award notices, to support your claim.
Step 2: Request Clarification from the Procuring Entity
Before escalating to a formal review, you can request written clarification from the procuring entity. Under Section 67(2), the entity must provide reasons for its decision within a reasonable time. This step is optional but can help resolve disputes informally or strengthen your case for review.
Step 3: File a Request for Review with the PPARB
If the issue persists, you can file a formal complaint with the PPARB. Key requirements include:
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Timeframe: The request must be filed within 14 days of the notification of the tender award or the date you became aware of the breach (Section 167(1)).
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Filing Process: Submit the request in writing to the PPARB Secretary, including:
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A detailed statement of the grounds for the complaint.
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Supporting documents, such as the tender notice, bid documents, and correspondence.
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A filing fee (as prescribed in the regulations, typically KES 10,000–50,000, depending on the contract value).
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Notification: The procuring entity and other bidders must be notified of the review request.
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The PPARB has the authority to suspend the procurement process pending the review, ensuring no irreversible actions (e.g., contract signing) occur.
Step 4: Attend the PPARB Hearing
The PPARB will schedule a hearing, typically within 7 days of receiving the request. All parties, including the procuring entity and affected bidders, are invited to present their case. The process is quasi-judicial, meaning it follows formal procedures but is less rigid than a court hearing. Key points:
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You may represent yourself or engage a lawyer.
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Present evidence and arguments to support your claim.
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The PPARB may request additional documents or summon witnesses.
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The Board must issue a decision within 21 days of receiving the request (Section 171). Possible outcomes include:
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Upholding the tender award.
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Annulling the tender process and ordering a re-evaluation or re-tendering.
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Awarding costs to the aggrieved bidder.
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Step 5: Seek Judicial Review (if Necessary)
If dissatisfied with the PPARB’s decision, you can file for judicial review in the High Court within 14 days of the decision (Section 175). The court will not re-evaluate the tender but will assess whether the PPARB’s process was lawful, fair, and reasonable. Grounds for judicial review include:
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Procedural unfairness.
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Errors of law.
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Irrationality or unreasonableness in the PPARB’s decision.
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Step 6: Explore Alternative Dispute Resolution (ADR)
In some cases, parties may opt for ADR mechanisms, such as mediation or arbitration, to resolve disputes amicably. While not explicitly mandated in the PPADA, ADR can be faster and less adversarial than formal reviews.
<h3 dir="ltr">Challenges in Public Procurement Disputes</h3>
Despite the robust framework, challenging tender awards can be complex due to:
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Tight Timelines: The 14-day window to file a review can be restrictive, especially for small businesses with limited resources.
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Cost Implications: Filing fees, legal representation, and potential delays can be costly.
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Evidence Burden: Proving bias or non-compliance requires substantial documentation, which may not always be accessible.
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Capacity Constraints: The PPARB may face backlogs, delaying resolutions.
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To overcome these, bidders should maintain meticulous records, act promptly, and consider legal advice from procurement law experts.
<h3 dir="ltr">Recent Trends in Procurement Disputes</h3>
Rising disputes in Kenya reflect growing awareness of bidder rights and increasing scrutiny of public spending. Recent cases highlight issues like:
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Collusion and Corruption: Allegations of insider deals in high-value contracts, particularly in infrastructure and health sectors.
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Technical Non-Compliance: Procuring entities failing to adhere to e-procurement requirements under the PPADA.
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Judicial Interventions: Courts increasingly overturning PPARB decisions for procedural lapses.
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The PPRA has responded by enhancing oversight, promoting e-procurement systems, and conducting training for procuring entities. However, bidders must remain vigilant to protect their rights.
<h3 dir="ltr">Practical Tips for Bidders</h3>
To minimize disputes and strengthen your position:
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Understand the Tender Requirements: Review tender documents carefully to ensure compliance.
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Document Everything: Keep records of all submissions, communications, and notices.
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Act Promptly: Adys.
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Seek Legal Advice: Consult procurement law experts to navigate complex disputes.
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<h3 dir="ltr">Conclusion</h3>
The Public Procurement and Asset Disposal Act, 2015, provides a robust framework to protect bidders’ rights in Kenya’s public procurement process. By understanding your rights and following the prescribed steps, you can challenge unfair tender awards effectively. Whether through the PPARB or judicial review, the system offers avenues for redress, ensuring accountability and fairness. As procurement disputes rise, staying informed and proactive is crucial for bidders.
For expert guidance on public procurement disputes, contact us at +254 716 808 104 or info@lawguide.co.ke to discuss your case and explore your legal options.
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