The firm argued that Kebs introduced a criteria on eligibility, which it deemed offensive and discriminatory as it was fashioned to lock it out of the procurement process.
A Kenyan firm has moved to court to challenge a multimillion-shilling tender by the Kenya Bureau of Standards (Kebs) for inspection of goods before leaving their source country, arguing that it was discriminatory against local contractors.
In a petition filed before the High Court, Precision Experts Limited argues that some of the mandatory requirements in the tender documents discriminate against citizen contractors, and are unreasonably excessive and contrary to the provisions of the Public Procurement and Asset Disposal Act, 2015.
Kebs invited bids in January for the tender prequalification of Pre–export Verification of Conformity (PVoC) to standards for the year 2025-2028. The PVoCs programme involves third-party inspection and certification of goods at the exporting country to guarantee compliance with Kenyan health, safety, and environmental standards before shipment.
Eighteen of the 19 bidders were international candidates. The pre-qualification process is ongoing as the evaluation of tenders and an award are yet to be made.
But Precision Experts alleges that the tender documents were discriminatory against citizen contractors as they prescribed requirements contrary to the Procurement Act.
The firm says the requirement of evidence of the tenderer’s physical presence and location to provide PVoC services imposes a substantial burden on citizen candidates.
The firm had challenged the requirements before the Public Procurement Administrative Review Board but the case was dismissed in March.
The firm’s director Peter Maina said the requirements were not grounded in international standards or widely recognised trade norms. Mr Maina said international candidates are granted time to achieve compliance for contract execution, whereas citizen contractors must meet compliance requirements and incur expenses upfront, even before getting a contract.
He pointed out that another mandatory requirement, which compels candidates to submit certified copies of licenses to operate in each preferred country for conformity assessment, was discriminatory.
This was because it applied exclusively to international candidates, requiring them to establish an operational office in Kenya only after the contract award and within six months of its commencement.
He further argued that the requirement for candidates to extend their accreditation scope to territories identified in the tender before prequalification was not only burdensome for citizen contractors but also unreasonable.
“Unless this application is certified as urgent, leave is granted to file a substantive notice of motion application and the leave acts as a stay of the decision of the board and the procurement process, there is a risk that citizen contractors will be unfairly, unlawfully, and unconstitutionally and unconstitutionally be restrained from participating from the international prequalification process,” he said in the petition.
He wants the court to compel the review board to hear the case afresh within 14 days, from the date of the ruling.
While dismissing the case in March, the board said the different treatment with respect to establishing a physical presence and an operational office (prior to prequalification) in the highlighted zones or regions does not amount to discrimination.
The board further said a procuring entity has the discretion to tailor its bid documents according to its needs, but the discretion is not absolute.
The review board said given the nature of the conformity assessment exercise to be undertaken upon contract award, it was essential for the procuring entity to ensure that potential bidders have the capacity to uphold and maintain the required standards, in line with the provisions of the Standards Act and article 46 of the constitution.
“Therefore, based on the foregoing analysis, the Board finds that the Respondents adhered to the principles of non-discrimination and the promotion of local industry, as required by the Constitution and the Act,” the review board had ruled.
However, the firm faulted the review board saying there was no mention whatsoever, in the entire decision, that the review board undertook a comparison between international standards and the bid documents.
“In arriving at its decision, the Public Procurement Administrative Review Board, the 1st respondent herein, failed to consider the international standards before them, and which prescribe international standards that touch on conformity assessment, the subject of the procurement proceedings,” Mr Maina submitted.
