Steers contract to run JKIA restaurant quashed

International fast foods chain, Steers, may have to bid afresh for a tender it had won to develop and manage a restaurant at the JKIA after the High Court last week quashed the award, faulting the procurement process.

Justice George Odunga’s cancellation of the tender award marked a partial victory for Dubai-based firm Suzan General, which had put up a spirited case against the Kenya Airports Authority (KAA’s) procurement for the deal.

Justice Odunga ordered the Public Procurement Administrative Review Board (PPARB) to commence a review of the tendering process, which it had declined to do when requested by Suzan General.

Suzan General had in June filed a request for review before PPARB, which was turned down by the board which ruled that the Dubai firm had filed some documents out of the time stipulated by law.

The Kenya Airports Authority had also argued that it had already signed a contract with Hoggers Limited, which runs the Steers franchise in Kenya, hence the suit had been overtaken by events.

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Justice Odunga said in his ruling that the document was struck out of the review proceedings without according any of the parties a hearing.

He added that the contract to run a restaurant at Jomo Kenyatta International Restaurant (JKIA) was illegally signed and that could not be used to escape the review board’s statutory obligation to protect parties aggrieved by the procurement body.

Fresh review

“The respondents cannot therefore hide under an illegality perpetrated by itself to escape from the statutory provisions which are meant to protect those who are aggrieved by the decisions of the tribunal,” the judge said.

After Hoggers was awarded the tender in April, Suzan General applied for a review, but the tribunal upheld the award. Suzan General then asked for a fresh review in June, but PPARB declined to hear the matter.

The review board also argued that its decision was unlikely to be affected by the documents Suzan General had allegedly filed out of time.

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The judge disagreed with the argument, stating that Suzan General reserved the right to be heard, whether or not its arguments were likely to affect the final decision of the board.

“The decision must be declared to be no decision as denial of the right to be heard renders any decision made null and void. PPARB is directed to commence the hearing of the review in compliance with the rules of natural justice,” Mr Justice Odunga added.

The judge quashed all decisions and deals that were struck after declining to review the tendering process for a second time.

Other firms that had bid for the tender were Kuku Foods Kenya Limited and Yog Holdings. Yog Holdings was knocked out after it failed to prove that it had previously run a fast food restaurant in an airport. Kuku foods finished third in the re-evaluation process in June.

The Dubai-based firm then moved to court to challenge PPARB’s decision.

Kenya Airports Authority, which had advertised the tender, had maintained that it had given Suzan General a report with sufficient reason as to why the deal had gone Hoggers’ way.

“The re-evaluation report received by Suzan General contained sufficient information. It clearly stated the criteria used in both the technical and financial evaluation,” KAA said.

The judge’s decision comes as reprieve for Suzan General, which last month lost its bid to quash the award of a tender to develop new duty free shops at the airport.

Justice Odunga on that occasion upheld the award of the multi-million deal to Swiss firm Dufry International AG, one of the world’s largest global travel retailers.