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KPA sues procurement review board over drugs firm tender bid

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Cargo is offloaded from a vessel at the Port of Mombasa, May 31, 2018. FILE PHOTO | NMG

The Kenya Ports Authority has sued the procurement review board over its decision to compel it to readmit a pharmaceutical company to a procurement process.

KPA wants the Public Procurement Administrative Review Board's decision in favour of Simba Pharmaceuticals Ltd -- regarding tender No. KPA/121/2017-18/MS for supply of drugs -- quashed.

KPA says it advertised the tender on May 8 for supply of drugs and upon preliminary evaluation of the bids, Simba's bid was disqualified, having failed to meet the mandatory requirements.

In its application, KPA says Simba filed a request for review application before PPARB on grounds that deviations on its bid were minor and should not have affected its compliance.

KPA further says that PPARB delivered a ruling in favour of the pharmaceutical company, which it has named as an interested party in the proceedings, on September 25.

“Upon listening to PPARB decision, KPA noted that it (PPARB) acted unreasonably and in excess of jurisdiction failing to consider relevant facts,” states KPA in its application.

KPA says if the PPARB award is not quashed within 45 days of the filing of its (KPA) application, the decision of the board will become binding and will be bound to implement a resolution despite its complaints of being unreasonable and delivered in excess of jurisdiction.

In his affidavit, KPA’s principal procurement officer Mr Aza Dzengo says bidders were required to submit mandatory documents showing company profile and their particulars in the technical submissions.

Mandatory documents

“These mandatory documents include certificate of registration/incorporation, valid single business permit, taxpayers’ registration certificate and valid tax compliance certificate among others,” states Mr Dzengo in his affidavit.

According to Mr Dzengo, having failed in the preliminary evaluation stage, the pharmaceutical company’s bid was disqualified and did not proceed to the technical evaluation stage.

He said that PPARB decision in determining that the deviation in the pharmaceutical company were minor, it acted irrationally and illegally.

“Its (PPARB) decision usurps the powers of the Tender Evaluation Committee granted under Section 80 of the Public Procurement and Asset Disposal Act,” Mr Dzengo added.

KPA argues that it is in the interest of justice and fairness that the court hears the application and grant the orders sought.

Justice Eric Ogola has directed KPA to serve its application to the Attorney-General and that the pharmaceutical company and PPARB to serve their responses within four days.

He also directed parties to file their submissions and directed the case to be mentioned on November 26.