The High Court has quashed a tender by the Kenya Ports Authority for pre-qualification of legal services, saying it was discriminatory and violated the law.
In a decision likely to be received well by small and medium-sized law firms, Justice James Makau declared that the mandatory condition imposed by KPA in the tender, requiring at least one partner in a bidding law firm to be a certified arbitrator was “illegal, unconstitutional, null and void”.
The tender was put up by KPA on June 9, 2020.
The decision is as a result of two petitions, which had been separately filed by the Law Society of Kenya and Mombasa-based lawyer Willis Oluga before they were consolidated, challenging conditions imposed by KPA in the tendering process.
Justice Makau said he agreed with LSK and Mr Oluga that there was bias in the tendering requirements which gave specifications in terms of post-admission experience for partners in a law firm.
“This specification not only locks out Mr Oluga from tendering in categories A, B and C but also locks out young advocates without such experience to tender,” said Justice Makau adding that KPA did not give justification for the requirement.
He further ruled that KPA had not laid out any basis for a requirement that a law firm bidding for the tender must have a partner who is a certified arbitrator.
“Section 9 of the Advocates Act sets out the requirements for one to become an advocate, it is clear that it does not include arbitration certification as one of the qualifications,” said Justice Makau.
Justice Makau also noted that the requirement on professional indemnity was discriminatory and oppressive as it sought to lock out potential bidders who may have met other requirements but could not bid for the tender due to the requirement.
The court further issued an order compelling KPA to re-advertise the tender in conformity with the law and procurement principles in a proper, open and objective manner devoid of unconstitutional requirements.
It further directed Public Procurement & Regulatory Authority-sued as a second respondent-to consider any further requests for pre-qualification for legal services by KPA and consequently consider, advise and ensure that it complies with requirements of legality in terms of Article 227 of the constitution.
The petitioners had argued that the tender sought to discriminate them on the basis of post-admission experience, arbitration certification, the status of the law firm, professional indemnity and structure of the law firm.
Mr Oluga argues that KPA had made it a mandatory requirement for law firms to be pre-qualified under three categories (ABC) only if at least one of the partners was a certified arbitrator.
"The implication is that a firm which does not have a certified arbitrator among its partners will be disqualified even if it meets other procurement requirements,” argued Mr Oluga.
The petitioners argued that no justification had been advanced by KPA for the differentiation and discrimination.
On its part, KPA argued that the requirements had been put in place to meet its specific procurement needs and that it had not breached any constitutional provisions or statutory law.
KPA argued that the eligibility criteria in the tender matched the nature of work that could be possibly be outsourced, paying specific attention to professional qualification, expertise and experience of the service provider and minimum value of professional indemnity to handle cases of such magnitude.