The Kenya Ports Authority has sued the Public Procurement Administrative Review Board (PPARB) for compelling it to re-admit a pharmaceutical company to the procurement process for a drugs supply tender.
The authority (KPA) wants the PPARB’s decision in favour of Simba Pharmaceuticals Limited quashed, regarding Tender No.KPA/121/2017-18/MS-Supply of Drugs.
DISQUALIFICATION
The KPA says it advertised the tender on May 8 and that upon the preliminary evaluation of bids, it was found that Simba did not meet requirements so it was disqualified.
In its application, the authority says Simba then filed an request for a review on grounds that deviations in its bid were minor so they should not have affected the responsiveness of its bid.
The KPA says that on September 25, the PPARB delivered a ruling in favour of the company, which it has named as an interested party in the proceedings.
“Upon listening to the PPARB’s decision, the KPA noted that it acted unreasonably and in excess of jurisdiction, failing to consider relevant facts,” its application stated.
The authority notes that if the PPARB award is not quashed within 45 days of the filing of its application, the decision of the board will become binding and it will be bound to implement a resolution it complains was unreasonable.
REQUIREMENTS
In his affidavit, KPA’s principal procurement officer, Mr Aza Dzengo, says bidders were required to submit mandatory documents – company profile and particulars on technical matters.
“These mandatory documents include the certificate of registration/incorporation, a valid single business permit, a taxpayers’ registration certificate, a valid tax compliance certificate among others,” he says, and notes that Simba’s bid did not proceed to the technical evaluation stage.
Therefore, the officer, says, the PPARB’s acted “irrationally and illegally” in determining that the deviations were minor.
“Its decision usurps the powers of the Tender Evaluation Committee granted under Section 80 of the Public Procurement and Asset Disposal Act,” Mr Dzengo said.
The KPA further argues that it is in the interest of justice and fairness that the court hears its application and grants the orders sought.
On Monday, Justice Eric Ogola directed it to serve the attorney general and the pharmaceutical company, and that the PPARB file its responses in four days.
He also directed parties to file their submissions ahead of the mentioning of the case on November 26.