Court stops agency from probing car imports audit tender corruption claims

The High Court has stopped the Public Procurement Regulatory Authority (PPRA) from continuing with its investigations into alleged corruption and irregularities in a multi-billion-shilling tender for inspection of imported cars.

Justice Jairus Ngaah also barred the PPRA from implementing or adopting the investigations report and recommendations dated April 29, 2020, on the tender known as Pre-Export Verification of Conformity (PVOC) to Standards Services.

The tender is for pre-inspection and pre-verification of motor vehicles at their countries of origin before importation to Kenya.

The judge issued the orders following a judicial review application filed by a Dubai-based firm, Premier Verification Quality Services, challenging the decision of the PPRA to investigate alleged irregularities in the procurement process.

The firm was one of the successful bidders in the tender by Kenya Bureau Standards (Kebs) advertised in December 2019.

The investigations sought to find out whether the Kebs followed the due process under the Public Procurement and Assets Disposal Act in the entire procurement.

Among the interim findings and observations by the authority were that the subject procurement was not based on indicative or approved budget contrary to section 53(5)(8) of the Act.

Another finding was that the procurement was done without a purchase requisition contrary to Section 73 of the Act and that the Standard Tender Document contained information that did not allow competition.

The agency informed the court that the issues raised by one of the aggrieved bidders before the Public Procurement Administrative Review Board were different from the ones it (authority) was investigating.

It is on that basis the authority found it fit to investigate complaints by a whistleblower on December 20, 2019, and a complaint by Naivana Agencies Limited on March 2, 2020.

Through its director-general, the authority said it is in the public interest for the entire procurement process to be subjected to an inquiry to determine whether the Kebs complied with the law and the requirements in the award.

But Justice Ngaah ruled that the authority lacked powers to conduct the investigations, the matter having been subject of a dispute filed at the Public Procurement Administrative Review Board by one of the bidders Tuv Austria Turk.

He pointed out that the Public Procurement Asset Disposal Act bars the authority from investigating procurement disputes, which are under the board’s review.

The judge found that the PPRA acted unlawfully and ultra vires in undertaking investigations into, and a report on PVOC to Standards Services Tender No. KEBS T009/2019-2021, which was the subject of the review proceedings.

Further that the Dubai-based firm was treated unfairly and its interests as a successful bidder were likely to be affected by the said investigations and report.

“It is my finding that not only was the applicant was not accorded an opportunity to be heard, but also that the authority investigations and report were also procedurally unfair,” ruled the judge.