The tendering process is crucial for businesses aiming to secure government and corporate contracts. However, there are times when a business might feel that a tender award decision was unfair or flawed. If you believe your bid was wrongly rejected or the award was improperly granted, it is possible to challenge the decision. Here’s a guide on how to challenge a tender award decision in Kenya in 2025.
1. Understand the Grounds for Challenge
Before challenging a tender award decision, it’s important to know the valid reasons for a protest. Common grounds for challenging a tender award in Kenya include:
- Non-compliance with tender requirements: If the winning bid did not meet essential criteria.
- Evaluation errors: If the evaluation process was flawed, such as incorrect scoring of the bids.
- Corruption or bias: If there is evidence of favoritism or improper influence in awarding the tender.
- Non-disclosure of reasons: If the procuring entity does not provide adequate reasons for rejecting your bid.
2. Request Feedback
Once you receive the tender decision, request feedback from the procuring entity. Under Kenyan law, procuring entities are required to provide feedback on why a bid was unsuccessful. This feedback is crucial as it helps you understand where your bid was weak and gives insight into the evaluation process.
If you have not received feedback, you can formally request the evaluation report. This report will highlight why your bid was unsuccessful, including scoring in technical and financial evaluations.
3. File a Formal Complaint with the Procuring Entity
If you believe the tender award was unfair, you can file a formal complaint with the procuring entity. This complaint should outline:
- Why you believe the award was improper.
- Evidence supporting your case, such as discrepancies in the evaluation or non-compliance with tender rules.
The procuring entity is obliged to review the complaint and respond with further clarification or re-evaluation.
4. Appeal to the Public Procurement Administrative Review Board (PPARB)
If your complaint is not resolved, you can appeal to the Public Procurement Administrative Review Board (PPARB). The appeal must be lodged within 14 days of receiving the tender award notification.
To file an appeal with PPARB:
- Submit a detailed written appeal.
- Provide supporting evidence like tender documents and evaluation reports.
- Pay the required fee.
The PPARB will review your case and make a ruling. If they find your appeal valid, they can recommend re-evaluation or annul the award and grant the tender to your business.
5. Seek Judicial Review
If you are still dissatisfied with the PPARB's decision, you can seek judicial review from the High Court of Kenya. This is a legal review of the tender process and should only be pursued after all other options have been exhausted.
To initiate judicial review:
- File the application within 14 days of the PPARB ruling.
- Provide evidence of the legal violations or unfairness in the process.
Judicial review is a complex process and requires legal expertise.
6. Alternative Dispute Resolution (ADR)
In some cases, alternative dispute resolution (ADR) methods like mediation or arbitration may be an option. ADR is faster and less costly than judicial review and can provide a more amicable resolution to the dispute.
Conclusion: How to Challenge a Tender Award Decision in Kenya (2025)
Challenging a tender award decision in Kenya involves understanding the grounds for protest, requesting feedback, filing complaints, and appealing to the PPARB. If necessary, businesses can seek judicial review or pursue ADR. By following the proper steps, businesses can ensure fair treatment in the tendering process and protect their rights under Kenyan procurement laws.