Relief for KPA in row with tenders board

A decision by the Public Procurement Administrative Review Board to nullify letters of notification the Kenya Ports Authority (KPA) issued to bidding firms during the tendering for supply and commissioning of new equipment has been quashed.

The High Court nullified the decision, saying the board did not provide KPA’s accounting officer with an opportunity to be heard on the validity of the signatures on notification letters.

“It is clear that the decision of the board to the extent that it declared the letters of the notification null and void for having not been signed by the accounting officer was illegal and made in excess of authority,” ruled Justice Eric Ogola.

The judge further ruled that the action by the board on its motion did not only offend the rules of natural justice but also violated KPA’s right to a fair hearing under the Constitution.

“It must always be remembered that where a party has a right to be heard that right cannot be taken away by the mere fact that the tribunal considers that the party’s contribution is unlikely to affect the decision,” said Justice Ogola.

On January 22 and 23, the KPA advertised in the local dailies and its website Tender No. KPA/064/2018-19/TE for the Supply and Commissioning of Four New Reach Stackers.

Reach stackers are vehicles used in transporting containers over short distances at the port and arrange cargo.

According to suit documents, the KPA on June 25 wrote to all bidders informing the unsuccessful firms of reasons for their disqualification and also informed the winner, if it wished, to accept the terms of the tender in writing.

Konecranes Liftrucks AB, an aggrieved bidder and an interested party in the suit, filed a request for review at the procurement board, which was dismissed.

However, the board went ahead and nullified the letters of notification issued to all bidders who participated in the tender.

In its application before the High Court, the ports agency argued that nullification of its letters without giving it a chance to be heard was contrary to the principles of natural justice, which precludes a party from being condemned unheard.