Public procurement - the process through which public entities acquire goods, works, or services - is a crucial component of the Kenyan economy. The Public Procurement and Asset Disposal Act of 2015 (PPADA) provides the statutory basis for public procurement in Kenya. Its main purpose is to enhance transparency, accountability, and value for money. This article sets out the main features of the tender process and dispute settlement mechanisms in Kenya's public procurement law.

Tender Process

The Public Procurement and Disposal Act, 2015 (PPADA) and the Public Procurement and Asset Disposal Regulations of 2020 outline the law under which public procurement in Kenya should occur. The tender process can be summarized as follows:

1. Procurement Planning: Procuring entities will prepare procurement plans annually by their approved budgets and work plans.

2. Announcement: Open tenders shall be announced on the website of the government tenders portal, the procuring entity, and at least one daily newspaper of nationwide circulation. This shall be done with a degree of particulars to allow competition between potential suppliers.

3. Tender Submission and Opening of Bids: Tenders are submitted in envelopes to the competent body by the time and place determined and examined in public at the time and place indicated. All preliminary bids received after the time and date specified are considered late and, therefore, cannot be accepted.

4. Evaluation: The procuring entity appoints an evaluation committee to evaluate each tender against the requirements and criteria set out in the tender documents. The evaluation must be impartial, objective, and secret.

5. Tender award: The tender is awarded to the lowest evaluated bidder who meets the qualification criteria. The procuring entity informs the successful bidder about the tender award decision.

6. Contracting: the hiring agency enters into a written contract with the winning bid, which must be consistent with the tender documents and bid.

Dispute Resolution

The PPADA establishes a three-tier dispute resolution mechanism for public procurement disputes:

1. Direct review by Procuring Entity: A prospective bidder who claims to be aggrieved by a decision of the Procuring Entity may lodge a request for the review of the decision by the accounting officer, according to the following rules: If a prospective bidder makes a valid request for review towards the Procuring Entity, within 14 days from the date on which General Terms of the Agreement become part of the bidder circumstances have otherwise become known to the bidder; the Procuring Entity shall review the decision within one month.

2. Administrative Review: If the bidder is dissatisfied with the accounting officer's decision, he/she may lodge a request for administrative review by the Public Procurement Administrative Review Board [PPARB] within 14 days of the accounting officer's decision.

3. Judicial Review: A bidder aggrieved by the decision of the PPARB may apply for judicial review by the High Court within 14 days of the decision of the PPARB.

The dispute resolution process does not interfere with the procurement proceedings. Still, only after the procuring entity voluntarily dismisses the proceedings does the PPARB or the court stay (temporarily suspend) a procurement proceeding.

Landmark Procurement Cases

Kenyan courts have made significant decisions on public procurement disputes:

• In the 2019 case Republic v Public Procurement Administrative Review Board & 2 others Ex Parte Selex Sistemi Integrati, the High Court affirmed that a procuring entity cannot end a procurement process after a tender has been awarded without recourse to the procedures set out in the PPADA.
• In the landmark case of Okiya Omtatah Okoiti v Public Procurement Regulatory Authority and 3 others in 2020, the Court of Appeal held that the PPADA is inapplicable to procurement by constitutional commissions and independent offices, which are regulated under their procurement regulations.
• Shreeji Enterprises Ltd v Public Procurement Administrative Review Board 2 ors (2021): In 2021, the Indian High Court ruled that a procuring entity cannot review tenders using additional, non-stated criteria for evaluating the tenders.

Conclusion

In essence, Kenya's public procurement law embodies the principle of good faith, adherence to predetermined procedures, and minimum standards to ensure integrity, fairness, and value for money in public procurement. The PPADA and its regulations elaborate the tender process, from preparation and planning to award and contracting.

The PPADA's procurement dispute resolution mechanism ensures access to and affordability of the basic resources needed for such services. It provides for the review of procurement-related disputes by procuring entities for administrative review by the PPARB and judicial review by the courts to ensure efficient enforcement of procurement laws. Courts have been reformed by interpreting them.

There are also problems with the effective implementation of the public procurement law:

Procurement entities might not have sufficient capacities,

More transparency and citizen participation are still needed,

There is always a risk of corruption or fraud.

These crucial recommendations call for strengthening public procurement through training and professionalization of procurement personnel, enhanced oversight and monitoring, and effective law enforcement. E-procurement helps maintain transparency and efficiency.

Public procurement can deliver public goods and services, stimulate economic development, and build public trust in government. Kenya's public procurement law offers a good starting point for realizing these ambitions. Still, its success hinges on joint actions from stakeholders at all levels, including procurement entities, bidders, regulators, and the public.