Tender Disputes

Tender disputes are the disagreements that arise in the course of public procurement — from the design of the tender to the award of the contract and the management of the contract after award. In Kenya, tender disputes are governed by the Public Procurement and Asset Disposal Act, 2015 (PPAD Act) and the regulations issued thereunder, with the Public Procurement Administrative Review Board (PPARB) as the primary dispute resolution forum for pre-award disputes, and the High Court as the forum for appeals and for post-award disputes. The PPAD Act sets strict timelines for the filing of disputes — a request for review must be filed within 14 days of the notification of the award — and a failure to meet these timelines can be fatal to a bidder's challenge.

Advocates offering this service act for both bidders and procuring entities. For bidders, they handle requests for review before the PPARB — the formal mechanism for challenging a procurement decision. Advocates prepare the request for review, which must be in the form of an affidavit setting out the grounds of the challenge, the relief sought, and the supporting documents. Advocates file the request within the 14-day deadline, they serve the procuring entity and the successful bidder, and they prepare for the hearing before the Board.

The grounds for a request for review are broad: they can challenge the tender documents (if they contain discriminatory or restrictive specifications), the evaluation process (if the evaluation was not conducted in accordance with the stated criteria), the award decision (if it was made in favour of a bidder that did not meet the requirements), or any other aspect of the procurement that was unlawful, unfair, or non-transparent. Advocates identify the strongest grounds, present the evidence, and argue the case before the Board.

Advocates handle appeals from PPARB decisions to the High Court. An appeal must be filed within 14 days of the PPARB decision, and the appeal is heard by a judge of the High Court. Advocates prepare the memorandum of appeal, the record of appeal, and the written submissions, and they present the oral arguments at the hearing. The work also covers the procedural rules that govern PPARB appeals and in the substantive law of public procurement.

For procuring entities, they defend requests for review filed by unsuccessful bidders. Advocates prepare the response to the request for review, which includes a replying affidavit, the tender documents, the evaluation reports, and the award decision. Advocates represent the procuring entity at the PPARB hearing, they defend the procurement process, and they argue for the dismissal of the request. Advocates also handle appeals from PPARB decisions that are unfavourable to the procuring entity.

Advocates also advise on the prevention of tender disputes — reviewing tender documents before they are issued to ensure that they are fair, transparent, and compliant with the PPAD Act; advising on the conduct of the evaluation process; and managing the communication with bidders to minimise the risk of challenges. In practice, the best tender dispute is the one that is prevented through careful design and conduct of the procurement process.

Advocates handle post-award disputes — including disputes over the interpretation of contract terms, disputes over variations and extensions, and disputes over termination. Advocates represent parties in arbitration, mediation, and litigation arising from public contracts, and advocates also handle the unique features of public contract disputes — including the limitations on the ability of procuring entities to settle disputes and the requirement for parliamentary or county assembly approval for certain settlements.