Let us start by defining the word dispel and the word notion. According to the Collins English Dictionary Reference Edition, dispel means to disperse or drive away and notion means an idea, opinion or whim.

There is a notion that bidders involved in public procurement and asset disposal proceedings can only file review proceedings before the Public Procurement Administrative Review Board (“the Board”) after receiving the notification of award of Tender. The purpose of this Article is to dispel this notion.

Section 2 of the Public Procurement and Asset Disposal Act, 2015 (“PPADA”) contains the following definitions:

“candidate” means a person who has obtained the tender documents from a public entity pursuant to an invitation notice by a procuring entity;

“tenderer” means a person who submitted a tender pursuant to an invitation by a public entity;

It should be noted that section 2 of the Public Procurement and Disposal Act 2005 (“the repealed Act”) defined a candidate as a person who has submitted a tender to a procuring entity. The 2005 Act did not define a tenderer as is defined in the PPADA. The definition under the repealed Act shows that the repealed Act viewed the meaning of a candidate and a tenderer to be the same whereas the PPADA distinguishes the two, and there is a reason for this.

The Board has also addressed itself on the issue of who a candidate is and their right to file a request for review application. In PPARB Application No. 74 of 2019 Joly Gates Limited vs the Accounting Officer, Kenya Ports Authority, the applicant was discontent with a provision of the Expression of Interest issued by the procuring entity. The discontentment is what led the applicant to file its Request for Review before the Board immediately it noted the provision in the Expression of Interest which introduced a minimum experience of 5 years and disallowed joint ventures, seeking the following orders:

1. 1. An order annulling the decision communicated by the Procuring Entity in Addendum Number 1 issued on 10^th July 2019, in as far as it bars joint venture bids;
   2. An order compelling the Respondent to pay costs to the Applicant arising from/and incidental to this Application; and
   3. Such and further orders as the Board may deem fit and appropriate in ensuring that the ends of justice are fully met in the circumstances of the Request for Review.

• • • The respondent raised a preliminary objection on the issue of locus standi of the applicant and submitted that the applicant failed to prove that it falls within the definition of a candidate specifically in terms of section 2 of the PPADA.
    • To the respondent, just because the applicant saw the advertisement which was via open tender in the dailies did not qualify the applicant as a candidate and the applicant has therefore suffered no loss to meet the threshold of section 167 (1) of the PPADA.
    • The respondent referred the Board to an authority, PPARB Application No. 58 of 2010, GIBB Africa Limited vs. Kenya Railways Corporation where counsel for the respondent submitted that the Board found the applicant in this case lacked the necessary locus standi and could not prove the same just because it had bought the tender document. There was no proof that they would submit a bid, neither was there proof that they would suffer loss.

In the instant case, upon enquiry by the Board, counsel for the respondent confirmed:

• • That bidders were required to download the blank Expression of Interest Document. Upon further inquiry as to how the respondent would know bidders downloaded the blank Expression of Interest Document, counsel reiterated that the said document was open for anyone to download and submit a bid.
  • Counsel added that before submission of the duly completed Expression of Interest document, no person was a candidate and no person was a tenderer. Counsel for the respondent urged the Board to dismiss the request for review with costs to the respondent since the applicant failed to demonstrate its locus standi.

In response to the preliminary objection, counsel for the applicant submitted that:

• • The decision in Gibb Africa Case relied on by the respondent was delivered in the contest of the repealed Act which did not distinguish a candidate from a tenderer.
  • Upon enquiry by the Board, counsel for the applicant explained that the applicant downloaded the Expression of Interest advertisement and intends to submit a bid by closing date and no other document was required by the respondent.
  • Counsel for the applicant further submitted that the applicant risked suffering loss due to its inability to participate in the subject Tender.

In its decision, the Board held as follows: “The Board notes that the finding in the GIBB Africa Case was made in the context of the definition of a candidate under section 2 of the repealed Public Procurement and Disposal Act, 2005. Furthermore, the repealed Act did not define a tenderer as is the case with section 2 of the 2015 Act. It is the Board’s finding that the GIBB Africa Case does not apply to the instant case noting that the subject procurement process was made when the 2015 Act already became the applicable law on public procurement. Pursuant to the advertisement notice dated 25^th June 2019, the Applicant submitted that it downloaded the blank Expression of Interest document for the subject tender. The Board notes that the Applicant attached the said Expression of Interest document at pages 7 to 9 of its Request for Review. It is the Board’s finding that the Applicant meets the definition of a candidate as contemplated by section 2 of the Act, since what the Applicant needed to obtain from the Respondent to demonstrate that it is a candidate is the Expression of Interest document applicable to the subject procurement process. Accordingly, this ground of preliminary objection would fail”.

SECTION 167 (1) OF THE PPADA

Section 167 (1) of the Act states as follows: “Subject to the provisions of this Part, a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the Regulations, may seek administrative review within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process, or disposal process as in such manner as may be prescribed”. [Emphasis added]

Section 167 (1) of the Act mandates the filing of a request for review within fourteen days from the date of the occurrence of the alleged breach or the date of notification of award at any stage of the procurement process. [Emphasis added].

Regulation 203 (2) (c) of the Public Procurement and Asset Disposal Regulations 2020 (“the Regulations”) provides that a request for review shall:

(c) be made within fourteen days of—

(i) the occurrence of the breach complained of, where the request is made before the making of an award;

(ii) the notification under section 87 of the Act; or

(iii) the occurrence of the breach complained of, where the request is made after making of an award to the successful bidder.

Public procurement processes have several stages including tender advertisement, issuance of tender documents, pre-bid meetings, submission of bids, tender opening and evaluation of tenders. It is therefore very important for any bidder, whether a candidate or tenderer to ask themselves, when did they become aware of the alleged breach?

This is crucial because if the bidder became aware of the alleged breach prior to issuance of the notification of award and files review proceedings after the notification of award, the Board may rule that the application is time barred, having been filed 14 days after the occurrence of the alleged breach.

Let me explain this further by using case law.

PPARB Application No. 19 of 2021 Total Security Surveillance Limited vs The Governor/The Accounting Officer, Central Bank of Kenya, the Central Bank of Kenya & Winguards Services Limited.

• • In this case, the applicant lodged a Request for Review before the Board dated 18^th June 2021 and filed on 25^th June 2021 praying for orders as paraphrased below:

1. 1. 1. A declaration be issued that Addendum 1 in relation to the subject tender is illegal, null and void and be nullified.
      2. An order be issued that the requirements of Addendum 1 shall not form or be part of the evaluation criteria and/or be used in the evaluation of the subject tender by the Procuring Entity.
      3. An order be issued that the award to the 3^rd Respondent in relation to the subject tender be nullified and set aside.
      4. The letter of regret dated 14^th June 2021 and the decision it contains that the Applicant did not meet mandatory requirements (MR7 and MR8) contained in Addendum 1 in relation to the subject tender be nullified and set aside.
      5. The Board be pleased to review all records of the procurement process relating to the subject tender and be pleased to order the Respondent to re-evaluate the Applicant’s tender and award the subject tender to the lowest evaluated tenderer as provided in the tender document.
      6. The Respondent be ordered to pay the costs of and incidental to these proceedings; and
      7. Such other or further relief as the board shall deem just and expedient.

• • • • The 3^rd Respondent in the matter filed a Preliminary Objection dated 7^th July 2021 contending that the Request for Review was not filed within the statutory period of fourteen days from the date of occurrence of breach contrary to the express provisions of Section 167 (1) of the Act and Regulation 203 (2) (c) (i) of the Regulations, 2020, thus incompetent.
      • According to the 3^rd Respondent in PPARB No. 19 of 2021, the substratum of the Request for Review was allegations of breach of duty imposed upon the Procuring Entity by law requiring the Procuring Entity to notify the Applicant of an invitation to tender of the subject tender and subsequent existence and contents of Addendum 1, since the Applicant was a current service provider at the time of tendering of the subject tender.
      • The 3^rd Respondent further contended that the Applicant was aware of the alleged breach during tender opening on 17^th May 2021 and by virtue of the Applicant submitting documents in support of MR 7 and MR 8 to the Procuring Entity vide a letter dated 21^st May 2021. With this, the 3^rd Respondent contended that the fourteen days from occurrence of the alleged breach lapsed on 31^st May 2021 or in the alternative latest on 5^th June 2021 yet the Request for Review was filed on 25^th June 2021.

At page 12 of its Ruling, the Board, after quoting the provisions of Section 167 (1) of the Act and Regulation 203 (2) (c) (i) stated “From the foregoing provisions of law, it is clear that a Request for Review can be made at any stage of a procurement process. The framers of the Act, guided by the urgency with which procurement processes must be concluded, saw the need to provide for timelines in every step of a procurement process. One such timeline is the fourteen days from the date of occurrence of an alleged breach of duty imposed on the Procuring Entity by the Act, within which a dissatisfied candidate or tenderer can lodge a Request for Review at the Board. It is not the intention of the framers of the Act for a dissatisfied tenderer to await until the end of a procurement process to raise issues which a dissatisfied tenderer was aware of much earlier in such a procurement process. We say so because, a successful tenderer would never raise any malpractice of procurement process in which an award has been made to it even if it is aware of the malpractice in the early stages of a procurement process. However, a tenderer who finds itself as a non-responsive tenderer at the tail end of a procurement process should be estopped from challenging an award of a tender on the basis of its acquiescence of a malpractice that occurred at the earlier stages of a procurement process”.

• The Board went on to note that the Applicant’s Request for Review is hinged on challenging:

1. 1. The manner in which the Procuring Entity advertised the subject tender;
   2. The manner in which the Procuring Entity published Addendum 1; and
   3. The contents of Addendum 1.

• The Board also noted as follows from the confidential file:

1. 1. The subject tender was advertised in both the PPIP Government tender’s portal website and the Procuring Entity’s website on 28^th April 2021.
   2. Subsequently, the Procuring Entity published Addendum 1 that introduced 2 new mandatory requirements.
   3. The Applicant submitted its bid on 17^th May 2021 by which date, the Applicant was aware of the manner in which the subject tender was advertised.

• Thus, in the circumstances, the Applicant ought to have approached the Board on or before 31^st May 2021 being the 14^th day from 17^th May 2021.
• The Board further noted that:

1. 1. Addendum 1 was published in the PPIP Government tenders’ portal and the Procuring Entity’s website on 7^th May 2021 and 10^th May 2021 respectively.
   2. Since the Applicant downloaded the subject tender from the Procuring Entity’s website, it is expected that the logical thing would be for the Applicant to keep visiting the Procuring Entity’s website for any communication from the Procuring Entity with respect to the subject tender because it already knew the mode of communication having downloaded the subject tender document from the Procuring Entity’s website.
   3. The Applicant is deemed to have had knowledge of Addendum 1 and its contents thereof on 10^th May 2021 when the same was published on the Procuring Entity’s website and ought to have approached the Board on or before 24^th May 2021.

• The Board also noted that:

1. 1. The Applicant submitted mandatory requirement 7 and 8 introduced in Addendum 1 to the Procuring Entity after the deadline for submission of tenders on 21^st May 2021.
   2. This was a clear indication that the Applicant was aware of Addendum 1 and its contents thereof because there is no corresponding request that had been made by the Procuring Entity to the Applicant after the tender submission deadline to warrant the Applicant to forward mandatory requirements 7 and 8.
   3. In the circumstances and as an alternative to the date of 10^th May 2021, the Applicant is deemed to have had knowledge of Addendum and its contents thereof on 21^st May 2021 and ought to have filed its Request for Review on or before 4^th June 2021.

• The Board held that the latest the Applicant could have approached it with respect to advertisement of the subject tender is 31^st May 2021 and with respect to Addendum 1 was 4^th June 2021. In totality, the Request for Review was filed on 25^th June 2021 way after the fourteen days from occurrence of alleged breach of duty imposed on the Procuring Entity by the Act and is incompetent and the Board therefore lacked jurisdiction to entertain an incompetent Request for Review. The Board proceeded to strike out the Request for Review and downed its tools.

In PPARB Application No. 48 of 2021, Fahmyasin Company Limited versus The Accounting Officer, Kenya Urban Roads Authority & Another, the Board held that the application for review for any alleged breach must be filed timeously and, in any event, not later than 14 days from the date of the alleged breach.

• In this case where the applicant alleged a breach at the technical evaluation stage but waited until the award had been made to seek for review, the Board accepted as the correct interpretation of the law the argument that the applicant ought to have filed its application for review within 14 days of the breach. The pertinent part of its decision reads as follows:

“In the Respondent’s view, if the applicant was not satisfied by the technical evaluation criteria, it ought to have sought clarification from the Procuring Entity. In the absence of any clarification, it is the Respondent’s view that any complaint raised before the Board is time barred pursuant to section 167(1) of the Act.

In addressing this issue, the Board observes that one of the scenarios provided in section 167(1) of the Act read together with Regulation 203(2) (c) of Regulations 2020 within which a request for review can be filed is fourteen days from the date of occurrence of the breach complained of where the request is made before the making of an award.

With that in mind, the Board observes the statutory timeline provided under section 167(1) of the Act provides an opportunity within which an aggrieved candidate or tenderer may exercise its right to administrative review challenging a breach of duty by a procuring entity as soon as the breach occurs so that once the Board dispenses with a review application, the procurement process can proceed to its logical conclusion for the public good.

This Board has noted the rising number of bidders who abuse options under section 167(1) of the Act, whereby they learn of an alleged breach of duty during the early stages of a procurement process but wait for the outcome of their bids, and if such outcome is not favourable, they feel motivated to file a case against a procuring entity, raising complaints that could have been raised at any stage before evaluation is concluded. If the outcome of the bids is favourable, such applicants never raise any alleged breaches they might have identified at any stage of the procurement process or disposal process.

The applicant participated in the subject procurement processes by submitting a tender by the tender submission deadline of 11^th February 2021 without challenging those technical specifications in a request for review filed before this Board as opposed to participating in the procurement process.

The applicant could have approached the Board within fourteen days after the tender submission deadline raising an allegation that the Tender Documents did not meet the provisions of the law.

Had it been awarded the subject tender, the Board is persuaded that the applicant would not raise any complaint with the tender document. The applicant participated in the subject procurement process, waited patiently for the outcome of its bid and is now challenging the Tender Document, so late in the day after sleeping on its right to seek administrative review.” [Emphasis mine]

 

PARTING SHOT

As a candidate or a tenderer, always ask yourself, when did I become aware of the alleged breach?

Keep in mind that it is not the intention of the PPADA for candidates and tenderers to accept/condone a malpractice by a procuring entity that occurred at the earlier stages of a procurement process only to come complain at the tail end, after their bids are declared unsuccessful.

“Equity aids the vigilant, not those who slumber on their rights.”