Judge rules that order was tainted with unreasonableness and would render the entire process an absurdity
The Kenya Ports Authority (KPA) can breathe easy after a court quashed a decision by the Public Procurement Administrative Review Board (PPARB) seeking to have it re-admit a bidder to a tendering process for the supply of medical and welding gases.
Justice Mugure Thande allowed the application by KPA and thwarted PPARB’s decision to have the agency re-admit Jalaram Industrial Suppliers Ltd to the technical evaluation process for supply of medical and welding gases, welding rods and accessories.
“The order directing KPA to reinstate Jalaram Industrial Suppliers Ltd’s bid for re-evaluation at the technical and financial level after the tender has been awarded to successful bidders would deprive the process of the fairness and transparency stipulated in the Constitution,” said Justice Thande.
The judge sitting at Mombasa High Court ruled that she was satisfied that PPARB’s order was tainted with unreasonableness and would render the entire process an absurdity.
In its application, the KPA had argued that PPARB in directing it to allow the company’s bid acted unreasonably since the tender process had been concluded.
Justice Thande agreed, saying by allowing the firm to amend their request for review, PPARB deprived the KPA of a defence that had accrued to them.
“The respondent (PPARB) in effect assisted the interested party (Jalaram Industrial Suppliers) to steal a match over the applicants (KPA),” said Justice Thande.
The judge also noted that the procedure adopted by the PPARB for dealing with a preliminary objection raised by KPA was tainted with illegality.
Jalaram Industrial Suppliers had argued that PPARB’s decision was influenced by the KPA’s failure to adhere to the principles of fairness as their evaluation criteria was not applied uniformly to all bidders.
However, KPA’s acting senior procurement officer Anne Otit said it was noted that Jalaram did not provide sufficient information on the list of its clients and evidence of supply to at least three corporate clients.
KPA says the tender was concluded and awarded to successful bidders whose bids were evaluated under Section 50 of the Public Procurement and Asset Disposal Act.
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