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Court halts move to make it expensive to query tenders

By Paul Ogemba | Aug 4th 2020 | 3 min read

Treasury Cabinet Secretary Ukur Yattani with French Minister for Transport Jean-Baptiste Djebbari and Transport Cabinet Secretary James Macharia when they discussed the Nairobi-Nakuru-Mau Summit highway expansion in January. [File, Standard]

A quiet move by the government to make it expensive to challenge questionable multi-billion shillings contracts has been put on hold by the High Court.

Last week, Justice Weldon Korir suspended the Public Procurement and Asset Disposal Regulations (2020) which would require that any person challenging the process of awarding any government tender, must first deposit 15 per cent of the total contract sum. 

New rules

Justice Korir issued the orders following a petition by Roads and Civil Engineering Contractors Association and the Energy Sector Contractors Association who claimed the new rules will entrench corruption by denying the public a chance to challenge fraudulent contracts.

“An order is hereby issued stopping implementation of the Public Procurement and Asset Disposal Regulations (2020) pending the hearing and determination of the suit,” ruled Korir.

Treasury Cabinet Secretary Ukur Yatani gazetted the Public Procurement and Asset Disposal Regulations (2020) on July 9 after they were passed by the National Assembly on July 2.

Regulation 204 of the new law requires that a person challenging a government tender at the Public Procurement and Administrative Review Board (PPARB) must accompany the filing with a deposit valued at 15 per cent of the tender sum.

Regulation 222 of the Act further states if the individual is dissatisfied with the PPARB decision and wants to challenge the tender at the High Court, the person must deposit another three per cent of the contract tender sum of at most Sh10 million for the case to be heard.

For example, the implication of the new regulations are that if anyone wants to challenge the Sh62 billion Nairobi Expressway contract linking Jomo Kenyatta International Airport and Westlands, the individual must first deposit Sh9.3 billion (15 per cent of contract sum) before the case is heard.

The two associations, through lawyer Kibe Mungai argued the rules will make it impossible to question the processes used by government to award contracts and deter any individual from filing a suit.

“Provisions of the regulations are unconstitutional and meant to ensure any procurement dispute is not placed before any court or tribunal for adjudication. They purport to deny and limit any person right to affordable access to justice and right to fair hearing,” he said.

Enormous losses

Mungai argued that if the law is not overturned, procurement laws will be flouted by government operatives with impunity, with the likely consequence of enormous loss of public funds through inflated tenders and corruption.

He said the law will allow government accounting officers go unchecked, and have immense powers to control all procurement process in the belief that their actions will not be questioned as a result of the exorbitant amount required to file a suit.

The association’s chief executive officer Joseph Anvar, in his affidavit, swore that the regulations were secretly passed by Parliament without public participation and that they were surprised when the Yatani gazetted them.

They are asking the court to quash the new laws and a declaration that the Public Procurement and Asset Disposal Regulations (2020) is unconstitutional, null, void and with no legal effect.

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