The Public Procurement Administrative Review Board (PPARB) has ordered Jaramogi Oginga Odinga University to reevaluate a tender for the provision of insurance for group life, work injury benefits, and personal accident cover.
This was after the board cancelled the award to Kenyan Alliance Insurance Co Limited and Zamara Risk Insurance Brokers Limited.
“The Letters of Notification of Intention of Award dated May 2, 2024, issued to the applicant and all the other tenderers be and are hereby cancelled and set aside.
“The Letters of Notification of Intention of Award dated May 16, 2024, issued to the applicant and all the other tenderers be and are hereby cancelled and set aside,” read part of PPARB’s judgment.
The dispute arose after the university notified Kenyan Alliance Insurance, through a letter dated May 2, 2024, that it was the successful tenderer with its tender price of Sh17,698,987.
However, on May 16, 2024, the university sent a letter to all the tenderers, notifying them that Zamara Risk Insurance was the successful tenderer for its tender price of Sh11,988,854.
This prompted Kenya Alliance Insurance to seek a review of the decision. The insurer told the board that the university acted beyond its powers by purporting to reopen the tender evaluation without involving them, adding, “Section 83 of the Act (Public Procurement and Asset Disposal Act) requires that any post-qualification process be done before the award of the tender. It was Counsel’s submission that the 1st Notification is what was contemplated under Section 87 of the Act, and he urged the board to allow the request for review.
In their defence, Jaramogi Oginga Odinga University argued that the first notification was not an award but an intention to award. It stated that upon issuing the 1st notification the Insurance Regulatory Authority responded to its letter seeking a clarification of the tenderers.
The response confirmed that some entities that had been eliminated for not having licenses indeed had licenses. It was at this point that the university decided to recall the 1st notification.
It added that Kenyan Alliance had breached the Code of Ethics by providing inaccurate information on their litigation history. The University argued that whereas the Applicant indicated in their affidavit that they had no litigation history, they had pending litigation matters.
Zamara Risk Insurance which was enjoined as a respondent in the case told the Board that Section 86 of the Public Procurement and Asset Disposal Act defined a successful tenderer as the one that offered the lowest tender price, and its tender price was the lowest.
The PPARB noted, “In the circumstances obtained, the 1st and 2nd Respondents did not give the Applicant notice of its intention to re-assess the tenders based on the new information from the Insurance Regulatory Authority, did not allow the Applicant to equally review the said information from the Insurance Regulatory Authority and did not allow the Applicant make representations on the said information from the Insurance Regulatory Authority. It would therefore follow that the 1st and 2nd Respondents’ actions were in contravention of the Applicant’s right to a fair administrative action.”
Concerning the due diligence, the Board stated that the university erred by finalising its evaluation before receiving the response from the Insurance Regulatory Authority.
