Bid Protest Mechanism under the Procurement Laws in Kenya

Author: Lilian Kabaya, Peter Muhoro

Bid Protest Mechanism in Public Procurement

The Public Procurement and Disposal Act, 2015 (the “Act”) operationalizes Article 227 of The Constitution of Kenya which mandates all State organs and public entities to carry out procurement for goods and services in a fair, equitable, transparent, competitive and cost-effective manner.

The Act sets out the procedures for efficient procurement by public entities as well as an elaborate dispute resolution mechanism to resolve public procurement disputes so as to maximize economy and efficiency, to promote competition and ensure that competitors are treated fairly, to promote the integrity and fairness of procurement procedures, to increase transparency and accountability in those procedures. The Act is supplemented by the Public Procurement and Disposal Regulations, 2020.

The Act applies to procurement and disposal of assets by all public entities save for specific exemptions which include: transfer of assets between state organs, procurement and disposal of assets under the Public Private Partnerships Act, 2013 and procurement under bilateral or multilateral agreements between the Government of Kenya and any other foreign government, agency, entity or multilateral agency.

Public Procurement Administrative Review Board

The Act establishes the Public Procurement Administrative Review Board (the “Review Board”) as the main body responsible for dispute resolution in public procurement. The Review Board’s membership and composition is provided by the Public Procurement and Disposal Regulations, 2020.

Functions of the Review Board

The functions of the Review Board’s main role is: reviewing, hearing and determining tendering and asset disposal disputes. The Public Procurement Authority provides secretariat and administrative services to the Review Board.

The parties who may invoke the jurisdiction of the Board are limited to the procuring entity, a candidate or tenderer, or any other person that the Review Board may determine. A candidate is defined as a person who has submitted a tender to a procuring entity.

Procedure of the Reviews

The request for a review is made in the prescribed form stating the reasons for the complaint, including any alleged breach of the Act or the Regulations. Such an application should be accompanied by such statements as the applicant considers necessary in support of its request.  Such a request should be made within 14 days of the occurrence of the breach complained of where the request is made before the making of an award or within 14 days of notification of the award

The request for review should be filed with the Secretary of the Review Board upon payment of the requisite fees. The Secretary immediately thereafter serves a copy of the request on the Procuring Entity or Director General as the case may be. Service on the Procuring Entity should also contain a notification of the suspension of the procurement proceedings of such procuring entity.

Upon service of a notification of a request, the Procuring Entity has to submit a written memorandum of response to the reasons for the request together with accompanying documents, within seven (7) days or such lesser period as may be stated by the Secretary in a particular case. The Review Board has a time frame of twenty-one (21) days after receiving the request to review to complete its review.

The Regulations allow for the right of representation, either by an advocate or any other person of choice. The Review Board may engage an expert to assist it in proceedings in which it feels it lacks the necessary expertise. The Board is however not bound to observe the rules of evidence in the hearing of a request.

Powers of the Review Board

The Public Procurement and Disposal Act grants the Review Board the following powers upon completing a review; annulling the procurement or disposal proceedings in their entirety; giving  directions to the accounting officer of a procuring entity with respect to anything to be done or redone in the procurement or disposal proceedings; substituting the decision of the Review Board for any decision of the procuring entity; termination of the procurement process and commencement of a new procurement process. The Board may also award costs.

A decision made by the Review Board is final and binding on the parties unless judicial review is commenced within fourteen (14) days from the date of the Review Board’s decision. A party to the review aggrieved by the decision of the Review Board may appeal to the High Court, whose decision must be rendered within 45 days of the Appeal. An aggrieved party may lodge a final appeal with the Court of Appeal.