Helicopter company loses KPC tender battle

Helicopter services firm Lady Lori (Kenya) Limited has lost a bid to compel the Kenya Pipeline Company (KPC) to reopen a tender for the maintenance and repair of its two aircraft parked at Wilson Airport.

In its court filings, Lady Lori had claimed that the award of the tender was fraught with irregularities and bias. The helicopters owned and operated by KPC have been grounded for the last two years.

It told High Court judge Pauline Nyamweya that the chair of the evaluation committee of the KPC tender was its former employee who departed the company acrimoniously.

Lady Lori also wanted the court to compel KPC to quash the letter of notification for the award of the tender issued to Hellint Aviation Limited and Level UP Limited.

But Justice Nyamweya dismissed the case, saying it was an abuse of process of the court.

She added that the company was time-barred from seeking review of the decisions made by the Public Procurement Administrative Review Board (PPARB), which is its proper cause of action before moving to court.

“There is a clearly defined procedure that was required to be followed by the Applicant under section 175 of the Public Procurement and Asset Disposal Act of 2015 if aggrieved by the decision of the Public Procurement Administrative Review Board, including the decision made by the board that the applicant had no locus standi and therefore no remedy,” said the judge.

She said the law provides for a procedure of continuing and incremental review of decisions made public procurement proceedings, first by the Public Procurement Administrative Board, and if one is still aggrieved, by the High Court, and lastly by Court of Appeal, whose decision is final in the review proceedings.

The judge rejected an interpretation by Lady Lori that a party could break these mechanisms and approach court afresh to review decisions that are the same subject matter of a determination already made by the board.

She said interpretation would lead to the absurd and undesirable result of re-litigating issues already decided upon by a forum of competent jurisdiction, namely the PPARB, which is expressly prohibited and frowned upon by the law.

The judge noted that a request by Lady Lori for review of the tender was struck out by the PPARB on March 19, 2020. The board said Lady Lori did not demonstrate loss.

The judge said the exhaustion of statutory remedies is a constitutional and legal imperative.

Lady Lori had alleged that there was is an abuse of power by the KPC in illegally and unprocedural splitting and awarding the tender to the two companies.

It was further argued that the award criteria were skewed to favour the two companies and KPC did not meet the constitutional threshold of fairness, equity, transparency and competitiveness.