Public tenders are often elaborate, complex and heavily regulated by the law. In certain cases, there is need for the government to invoke termination powers before the award to a winner.
Termination is strictly guided by Section 63 of the Public Procurement and Asset Disposal Act followed by communication to the bidders and the regulator, the Public Procurement Regulatory Authority.
Valid termination reasons include operation of the law, substantial technological change, inadequate budgetary provision, material governance issues like corrupt practices, all bids being non-responsive, unseen and unfortunate circumstances beyond the control of the government.
Upon proper termination, the jurisdiction of the Public Procurement Administrative Review Board (the procurement tribunal) and the High Court to review such decisions runs out. The judicial bodies, however, have jurisdiction to check whether the statutory pre-conditions of termination have been met. If they have not, they can review the decision, reverse it and allow the process to continue to award.
Termination powers accord immense discretionary powers to State decision makers and therefore they require clarity on how they are executed. While most of these terminations are genuine, at times this provision has been used to frustrate bidders and to perpetrate corruption.
How then does tender termination aid corruption? This happens where one bidder has emerged as the lowest priced and therefore likely to win the bid. At the same time, a different bidder could be targeted for award in that process but has failed to meet tender requirements.
In this event the process is terminated so that re-advertisement can take place to give the ‘owner’ of the tender a second chance
In other cases, the government agencies intentionally fail to evaluate tenders within the stipulated timelines so that the tender validity can run out leading to automatic termination. In doing so, the officials rely on their own illegalities to effect termination.
Preparation, compilation and submission of bids by suppliers is a resource-intensive exercise. It is utterly callous and an abuse of power to terminate these processes unless it is extremely necessary to do so.
Government agencies must strive to see procurement processes through to conclusion.
The judicial bodies involved should never shy to intervene where illegal interference is detected. It should be a solution of last resort and never invoked lightly to abet corruption and other vices.
Karuthui Kamau,Advocate of the High Court of Kenya and Procurement Practitioner
