Public Procurement

Public procurement law governs the process by which public bodies in Kenya acquire goods, works, and services using public funds. It is one of the most heavily regulated areas of commercial activity in the country, governed by the Public Procurement and Asset Disposal Act, 2015 (PPAD Act) and the regulations issued thereunder, with the Public Procurement Regulatory Authority (PPRA) as the oversight body and the Public Procurement Administrative Review Board (PPARB) as the primary dispute resolution forum. For businesses that supply to government — whether national or county — a thorough understanding of procurement law is essential to winning and keeping public contracts.

Advocates offering this service act for both procuring entities and bidders. For bidders, they provide advice at every stage of the procurement cycle. Advocates review tender documents for compliance with the PPAD Act and the Constitution's principles of fairness, equity, transparency, and cost-effectiveness. Advocates identify restrictive or discriminatory specifications, improperly weighted evaluation criteria, and mandatory requirements that may be unlawful — and they advise on whether to seek clarification, file a pre-tender challenge, or proceed with the bid.

When a bid is unsuccessful, they prepare and file request-for-review applications before the PPARB. The PPARB has the power to annul award decisions, order re-tenders, direct the procuring entity to award the contract to the deserving bidder, and award costs. PPARB proceedings run on tight timelines — an application must be filed within 14 days of notification of the award — and in the preparation of the affidavit, written submissions, and oral arguments that the process requires. Advocates also handle appeals from PPARB decisions to the High Court.

For procuring entities, they advise on the lawful conduct of procurement — from the preparation of procurement plans and the selection of procurement methods (open tender, restricted tender, direct procurement, request for proposals), to the evaluation of bids, the resolution of complaints, and the award and execution of contracts. Advocates help entities design evaluation criteria that are fair and lawful, manage conflicts of interest among evaluation committee members, and respond to PPARB applications and High Court appeals.

Advocates also advise on the debarment and suspension of suppliers — a process by which the PPRA can exclude a supplier from public procurement for specified periods. Advocates act for suppliers facing debarment proceedings, and they advise procuring entities on the lawful initiation of debarment. Advocates handle appeals against debarment decisions to the High Court.

Contract management and dispute resolution are further areas of focus. Advocates advise on the management of public contracts after award — including variations, extensions, and termination — and they represent parties in disputes arising from public contracts, whether through arbitration, mediation, or litigation. Advocates are also experienced in the intersection of procurement law with other regulatory frameworks, including the Public-Private Partnerships Act for infrastructure projects and the Competition Act for merger notifications involving public contracts.