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High Court cancels Sh200 million Nairobi County data centre tender

NAIROBI
By Fred Makana | March 17th 2015

NAIROBI: The High Court has annulled the decision by Public Procurement Administrative Review Board (PPARB) to award Sh211 million Nairobi County data centre tender to a bidder who had not won the lucrative deal.

High Court judge George Odunga in his ruling said that PPARB could not review a decision by the County Government once the request to do so was withdrawn.

In his judgement Justice Odunga said that according to PPARB regulations a request for review may be withdrawn at any time before or during the hearing by notice in writing to the secretary of the board, signed by the applicant adding that the review would be deemed to have been withdrawn.

"As is clearly apparent from the provisions of law, once a notice of withdrawal is received by PPARB's Secretary, the request is deemed to have been withdrawn. Therefore the law itself provides for the consequences of receipt of a notice of withdrawal," Justice Odunga ruled.

Justice Odunga noted that a public authority cannot vary the scope of its statutory powers, adding that courts are empowered to look into tribunals whenever they stepped outside the field of operation entrusted to them.

"The law exhaustively provides for the jurisdiction of a body or authority, the body or authority must operate within those limits and ought not to expand its jurisdiction through administrative craft or innovation. The Courts must be vigilant to see that the said bodies exercise those powers in accordance with the law," Justice Odunga said.

Seven Seas Technologies had in July last year moved to court to fight for a Sh211 million Nairobi County tender for installation of a data centre intended to among other things help to weed out ghost workers.

The company had petitioned the High Court in to reverse a decision by PPARB which awarded the tender to BCX Kenya Limited, a rival IT firm.

Seven Seas cried foul over a decision by PPARB to annul award of the tender, and its transfer to rivals BCX Kenya Limited.

"In my view where a statute donates powers to an authority, the authority ought to ensure that the powers that it exercises are within the four corners of the statute and ought not to extend its powers outside the statute under which it purports to exercise its authority," the judge said.

The IT firm claimed it had been fairly awarded the tender by Nairobi City County in March last year after which BCX filed a request for review of the tender before PPARB

However BCX withdrew its request for a review of the tender award a month after filing it, but PPARB declined to endorse the withdrawal and consequently awarded the tender to it.

"Tribunals or boards must act in good faith; extraneous considerations ought not to influence its actions; and it must not misdirect itself in fact or law," the judge said.

According to the judge PPARB's jurisdiction ceased on receipt of the Notice of Withdrawal by its secretary and any proceedings undertaken by the board apart from notification of the parties were not only unprocedural but also without legal basis.

The county government intends to use the data centre to end manual operations which have cost the city over Sh100 million every month in fraudulent dealings and payment of salaries to ghost workers.

The facility includes a health management system to co-ordinate the county's 85 healthcare facilities, an e-payment module to ease bill payments, a human resource management system among other features.

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