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1
THE PUBLIC
PROCUREMENT
ADMINISTRATIVE
REVIEW BOARD
DRAFT PROCEDURE
MANUAL
2
TABLE OF CONTENTS
1. FOREWORD 3
2. INTRODUCTION 4
3. PURPOSE 4
4. SCOPE OF THE BOARD 5
5. REFERENCES 5
6. TERMS USED AND DEFINITIONS 6
7. COMPOSITION OF THE BOARD 7
8. PROCEDURE/METHOD 8
9. FORMS 23
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1. FOREWORD
The public procurement reforms in Kenya have culminated in promulgation of the Public
Procurement and Disposal Act 2005 and the subsidiary legislation entitled Public
Procurement and Disposal Regulations 2006 to provide a legal framework for regulating
public procurement. The legislative framework provides for oversight functions to be
carried out by the Public Procurement Oversight Authority, the Public Procurement
Oversight Advisory Board and for an appeals mechanism to the Public Procurement
Administrative Review Board.
For ease of implementation of the Public Procurement and Disposal Act 2005 and Public
Procurement and Disposal Regulations 2006 in Review matters, the Public Procurement
Oversight Authority has prepared this Public Procurement Administrative Review Board
manual to guide the members of the Review Board and the secretariat in the efficient and
effective execution of their duties by laying down clear guidelines on how to conduct
reviews and implement various aspects of their mandate. The manual also provides
guidance to parties to the Review.
The Review processes described in this manual have reference to the salient provisions of
the Public Procurement and Disposal Act and the Public Procurement and Disposal
Regulations which should be read together with the manual.
This manual has been prepared under the authority and direction of PPOA as part of the
project for strengthening the public procurement system in Kenya. Oversight and funding
of the project was undertaken by GTZ.
Signature _________________________________________
M.J.O. Juma
Acting Interim Director General
Public Procurement Oversight Authority
August 2009
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2. INTRODUCTION
The Public Procurement Administrative Review Board (PPARB) as stated in Section 25
of the Public Procurement and Disposal Act, 2005 is a continuation of the Public
Procurement Complaints, Review and Appeals Board which was established under the
Exchequer and Audit (Public Procurement) Regulations, 2001.
The Board is autonomous and is made up of six members nominated from various
professional associations as prescribed in Regulation 68 (1) (a) and three other members
appointed by the Minister.
Administrative services are offered to the Board by the Public Procurement Oversight
Authority which acts as its secretariat. The business of the Review Board is transacted
between 8.00 am and 5.00 pm on normal working days unless otherwise agreed to by the
Secretary.
3. PURPOSE
The Public Procurement Administrative Review Board resolves disputes arising from
candidates who claim to have suffered or risk suffering, loss or damage due to the breach
of a duty imposed on a Procuring Entity by the Public Procurement and Disposal Act,
2005 or the Public Procurement and Disposal Regulations, 2006.
The Public Procurement Administrative Review Board manual intends to guide the
members of the Review Board and the secretariat in the efficient and effective execution
of their duties by laying down clear guidelines on how to conduct reviews and implement
various aspects of their mandate. The manual also provides guidance to parties to the
Review.
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4. SCOPE OF THE BOARD
The Review Board was established to promote and uphold fairness in the Public
Procurement system through judicious and impartial adjudication of matters arising from
disputed procurement proceedings and as a major alternative to the court system. The
Board in addition, adjudicates the Director – General’s decisions made against Procuring
Entities on investigations and debarment of suppliers from participating in procurement
proceedings.
Disputes arising from the Public Procurement are heard and determined by a Board
which has capacity, competence and whose operation is necessitated by a quick delivery
of justice.
The Board improves the process of appeals by determining cases brought to them faster
and more efficiently.
The Review Board also offers general legal advice to the Procurement Stakeholders in
relation to conflicts and proceedings during filing and/or hearings of the Review.
5. REFERENCES
The Public Procurement and Disposal Act, 2005
The Public Procurement and Disposal Regulations, 2006
The Public Procurement Complaints, Review and Appeals Board Rules
Rules of operation of the Review Body on Bid Challenges (under the World Trade
Organization Agreement on Government Procurement)
Canadian Procurement Review Process
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6. TERMS USED AND DEFINITIONS
In this manual unless the context otherwise requires, the following words and expressions
shall have the following meanings;
Applicant means the party who requests for the review.
Authority means the Public Procurement Oversight Advisory Board established under
Section 21 of the Act.
Candidate means a person who has submitted a tender to a procurement entity.
Decision means the determination, ruling, order or judgment pronounced by the Board
when considering or disposing of a review
Director General means the Director-General of the Authority provided for under section
10 of the Act.
Disposal means the divestiture of public assets, including intellectual and proprietary
rights and goodwill and other rights of a procuring entity by any means including sale,
rental, lease, franchise, auction or any combination however classified, other than those
regulated by any other written law.
Frivolous request means a review which lacks a legal basis or legal merit or one brought
for unreasonable purpose and/or to delay the review process.
Minister means the Minister responsible for matters relating to finance.
Panel means a group of three members of the Board constituted by the Secretary in
consultation with the Chairman of the Review Board to hear and determine a request for
review.
Prescribed means prescribed by regulation under the Act.
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Procurement means the acquisition by purchase, rental, lease, hire purchase, license,
tenancy, franchise, or by any other contractual means of any type of works, assets,
services or goods including livestock or any combination.
Procuring entity means a public entity making a procurement to which the Act applies.
Request for Review means a request for administrative review filed with the Review
Board.
Respondent means the party against whom the review is taken.
Review Board means the Public Procurement Administrative Review Board established
under section 25 of the Act.
Services means any objects of procurement or disposal other than works and goods and
includes professional, non professional and commercial types of services as well as goods
and works which are incidental to but not exceeding the value of those services.
Tenderer means a person submitting a tender.
The Act means the Public Procurement and Disposal Act, 2005.
The Regulation means the Public Procurement and Disposal Regulation, 2006.
7. COMPOSITION OF THE BOARD
The Board consists of nine members including the Chairman, six of whom are drawn
and/or nominated from professional associations while the other three are appointed by
the Minister. These professional associations include;
The Kenya Association of Manufacturers,
The Law Society of Kenya,
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The Architectural Association of Kenya
The Institution of Engineers of Kenya,
The Institute of Certified Public Accountants of Kenya,
The Kenya Institute of Supplies Management,
The Institute of Certified Public Secretaries of Kenya,
The Chartered Institute of Arbitrators,
The Kenya National Chamber of Commerce and Industry,
The Kenya Institute of Management,
The Computer Society of Kenya,
The Pharmaceutical Society of Kenya,
The Federation of Kenya Employers,
The Central Organization of Trade Unions and
Three other members appointed by the Minister
8. PROCEDURE/METHOD
7. 1 REVIEW: DEFINITION
This is the systematic re-examination of the activities of the Procuring Entity in their
performance and management of the procuring process ensuring integrity and
competence in the procuring process is maintained.
Review ensures that the duties imposed on all Procuring Entities by the Public
Procurement and Disposal Act and Regulations are not breached.
7. 2 MATTERS NOT SUBJECT TO REVIEW
There are matters which are not subject to the review as stipulated in Section 93 (2) of the
Act. This are-
The choice of a procurement procedure pursuant to Part IV of the Public
Procurement and Disposal Act.
A decision by the procuring entity under section 36 to reject all tenders, proposals
or quotation;
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Where a contract is signed in accordance to section 68; and
Where an appeal is frivolous.
7. 3 TYPES OF REVIEW
There are various types of reviews determined by the Board.
The following are the reviews heard by the Review Board;-
(a) Review Against The Decision Of The Procuring Entity
i. Right to Review
Candidates who claim to have suffered or risk suffering, loss or damage due to the breach
of a duty imposed on a Procuring Entity by the Public Procurement and Disposal Act or
the Public Procurement and Disposal Regulations, may seek administrative review by
appealing to the Review Board.
The right to request a review is in addition to any other legal remedy a person may have.
ii. Mode of filing this request
A request for review under the act shall be made in the form set out in Appendix (A).
The request shall state the reason for the complaint, including any alleged breach of the
Act or the Regulation. The minimum requirements to be met before filing a review are
set out in Appendix (B).
The request shall also be accompanied by any such statements as the applicant considers
necessary in support of its request.
This request should be made within fourteen days of the occurrence of the breach
complained of where the request is made before the making of an award or within
fourteen days of the notification.
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If the Request is made out of time, that is, after the fourteen days of the notification or the
breach complained of, the Secretary shall in writing notify the Applicant that he/she has
filed his/her Request late and that the Board will have the discretion in deciding whether
to hear the Request.
The request should be submitted to the Secretary in fifteen bound copies and a soft copy,
pages of which should be consecutively numbered. The submitted copies are then
distributed to the 9 (nine) members of the Board, the Secretary, the Procuring Entity and
the Applicant. The remaining three copies are file copies .The above copies should be
handed in together with the required fee as is set out in Appendix (G). The fee is not
refundable and should be paid in by the Applicant no later than 1.00 pm.
In cases where the amount of the fees cannot be conveniently ascertained when the
service is required, the Secretary will charge fees for tenders of unascertainable value.
The Secretary may, upon ascertaining the fee chargeable for any service, demand
additional fee if the fee paid was below that ascertained. The Secretary may also require
payment in advance for any other service to be rendered. Currently the Secretary charges
parties for obtaining copies of the Review proceedings at the following rates;
For pages 1 to 10……..Kshs. 250/-
For pages 11 to 20……Kshs. 500/-
For pages 21 to 50……Kshs. 1000/-
Any page above 50…...Kshs. 1000/- and an additional 20/- per extra page
The Secretary will before acknowledging filing of the request ensure the following:
the Procuring Entity is a Public Institution,
the Applicant is a Candidate,
the Applicant is within the Review window,
the 15 copies are properly bound and paginated,
there is a soft copy of the Request for Review Document,
the alleged breaches are sighted. and
the correct fee has been paid.
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The Secretary shall then acknowledge filing of the request for Review, register it and
then give the submitted request a serial number by which such application shall thereafter
be referred.
iii. Notification of filing the request
The Secretary shall within Seven (7) days after the filing of the request serve a copy
thereof on the procuring entity or the Director General as the case may be.
The copy shall also contain a notification to the procuring entity of the pending review as
set out in Appendix (C )and (E) and the suspension of the procurement proceedings of
that particular procuring entity.
The procuring entity or the Director General shall within seven days or such lesser period
as may be stated by the Secretary in a particular case, submit to the Secretary a written
memorandum of response to the reason for the request together with such documents as
the Secretary may specify.
The Secretary will then, within fourteen days of the filing of the request, notify all other
parties to the review of the filing and such parties may, at their own expense, obtain
copies of the request for the review.
iv. Analysis
The Secretariat conducts an analysis on all the documents brought in by the parties which
relate to the request for Review using the checklist set out in Appendix I. This analysis
process involves perusal of the grounds for Review being alleged by the Applicant vis a
vie the response by the Procuring Entity. They are then compared with the Act and the
Regulation especially where breach of the Act, Regulations or the tender documents is
alleged.
The Secretariat writes his/her view on the request filed together with any observations
made of the entire tendering process beyond those raised by the parties. The analysis
made is then attached to other related documents (supporting documents) which will be
used by the board in their decision making, for example, extracts from tender documents
on areas being contested by the parties.
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It is also at the Analysis stage that the Board is notified if the request for the Review was
filed after fourteen days.
v. Review board’s meeting
On receipt of a complaint and where such complaint has not been dismissed on formal
grounds, the Secretary of the Board shall call a meeting of the Board within 21 days for
the purpose of fixing a hearing date. Apart from the Review Board completing its review
within thirty days after receiving the request for the review, in no case shall any appeal
under the Public Procurement and Disposal Act stay or delay the procurement process
beyond the time stipulated in the Act or the regulations.
vi. Parties to the review
The parties to a review shall be –
the person who requested the review
the procuring entity
if the procuring entity has notified a person that the person’s tender, proposal or
quotation was successful, that person
such other persons as the Review Board may determine
vi. Powers of the Review Board
Upon completing this review the Review Board may do any one or more of the
following-
annul anything the procuring entity has done in the procurement proceedings,
including annulling the procurement proceedings in their entirety;
give directions to the procuring entity with respect to anything to be done or
redone in the procurement proceedings;
substitute the decision of the Review Board for any decision of the procuring
entity in the procurement proceedings; and
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order the payment of costs as between parties to the review.
(b) Review Against The Decision Of The Director-General
i. Preamble
Instances may arise where the Director-General orders an investigation of procurement
proceedings for the purpose of determining whether there has been a breach of the Public
Procurement and Disposal Act, Regulation or any directions of the Authority. If, after
considering the report of an investigator, the Director-General is satisfied that there has
been a breach of the Act, Regulation or any directions of the Authority he may make a
decision against the Procuring Entity, for example, terminating the procurement
proceedings.
ii. Right to Review
The procuring Entity and any other person who was entitled to make representations
before the Director-General made his decision against the procuring proceedings may
request the Review Board to review the order made by the Director-General.
Again, the right to request a review is in addition to any other legal remedy a person may
have.
ii. Mode of filing this request
This request shall be made within twenty-one days after the order by the Director-
General was made. It shall also be accompanied by the prescribed fee as set out in
Appendix (D).
iii. Parties to the review
The parties to a review shall be –
the person who requested the review
the procuring entity
such other persons as the Review Board may determine
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iv. Board’s Meeting
The Review Board shall meet to conduct a review within twenty-one days after receiving
the request for the review and shall complete its review within thirty days after receiving
the request for the review.
No investigations shall be commenced or continued and no order shall be made in
relation to an issue that the Review Board is reviewing or has reviewed unless if after the
Board has completed its review information comes to the Director-General that was not
brought before the Review Board in the course of its review.
v. Powers of the Review Board
Upon completing this review the Review Board may do any one or more of the
following-
confirm, vary or overturn the Director-General’s order.
order the payment of costs as between parties to the review.
(c) Review Against Debarment
i. Preamble
The Director-General, with the approval of the Advisory Board, may debar a person, for
a period not less than five years, from participating in procurement proceedings on the
grounds that the person has committed an offence under the Act, has committed an
offence relating to procurement under any Act, has breached a contract for a procurement
by a public entity, has in procurement proceedings given false information about his
qualifications or has refused to enter into a written contract as required by the Act.
The Authority then makes available to the public entities a list of persons debarred from
participating in procurement proceedings.
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ii. Right to Review
A person who is debarred may therefore request the Review Board to review the
debarment.
The right to request a review is also in addition to any other legal remedy a person may
have.
iii. Mode of filing this request
This request shall be made within twenty-one days after the person was debarred. It shall
also be accompanied by the prescribed fee as set out in Appendix (D).
iv. Parties to review
The parties to a review shall be –
the person who was debarred
the Director-General
iv. Board’s Meeting
The Review Board shall meet to conduct a review within twenty-one days after receiving
the request for the review and shall complete its review within thirty days after receiving
the request for the review. In no case shall any appeal under the Public Procurement and
Disposal Act stay or delay the procurement process beyond the time stipulated in the Act
or the regulations.
v. Powers of the Review Board
Upon completing this review the Review Board may do any one or more of the
following:-
Confirm, vary or overturn the Director-General’s debarment of the person.
Order the payment of costs as between parties to the review.
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SCHEDULE OF EVENTS IN THE 30-DAY REVIEW
DAY ACTION
1 The Secretary is satisfied that the complaint is properly filed.
1-7 Notice of filing sent to the parties.
1-14 Notification to other parties.
1-21 Review Board’s meeting to fix a hearing date.
30 Determination of the Review by the Board
*Note; Filing of a review against the decision of the Procurement Entity should be
done within 14 days of a breach or notification while reviews against the decision of
the Director General or against Debarment should be done within 21 days of such
decision being made.
7. 4 DISMISSAL OF FRIVOLOUS REQUESTS
If the Review Board is of the opinion that the request is frivolous or vexatious or was
made solely for the purpose of delaying the procurement proceedings or the procurement,
it may dismiss a request for a review.
7. 5 DISCLOSURE OF INTEREST
In instances where a member of the Review Board has a direct or indirect interest in a
matter before the Review Board, he or she should declare his or her interest in the matter
before any meeting in relation to that particular matter and should not participate in the
hearing or decision-making process of the Review Board. This is in order to avoid
conflict of interest.
Though it is not practical to set hard and fast rules to judge what should be disclosed by
members because each case could be different and it is difficult to cater for unusual or
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unforeseen circumstances, the following are some general cases which can assist
members in identifying potential conflict of interests which should be declared:-
Pecuniary interests which include directorship or partnership in companies,
substantial shareholdings and remunerated employment, offices, trades, professions
or vocations, interest held a member, his/her spouse and children or any close
relative which is connected with, or the subject matter under consideration by the
Review Board.
A directorship, partnership, advisory or client relationship, employment or other
significant connection with a company, firm, club, association, union, or other
organization which is connected with, or the subject matter under consideration by
the Review Board.
A member who, as a professional adviser, personally or as a member of a company,
has advised or represented or has frequent dealings with any person or body
connected with, or is the subject matter under consideration by the Review Board.
Some friendships which may be so close as to warrant declaration in order to avoid
situations in which an objective observer might believe a member’s advice to have
been influenced by the closeness of the association.
Any interest likely to lead an interested party to believe that the member’s decision
might have been motivated by personal interest rather than by a duty to act
impartially.
This applies to all types of review.
7. 1. 6 HEARING NOTICE
The secretary shall give 7 days notice of the date fixed for hearing, immediately the date
is set, to all parties to the review. The invitation to the hearing sets out the time, date and
place where the hearing should take place.
The notice should be made in the format shown in Appendix (D).
7. 1. 7 REPRESENTATION BY PERSON OF OWN CHOICE
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Any party to a request for review will at the hearing thereof be entitled to be represented
by an advocate or any other person of his/her own choice.
The Board may allow legal or other experts to assist an Applicant, Procuring Entity or
interested candidates in presenting its case. The Board may also determine the number of
representatives of parties and interested candidates that may attend the hearing.
7. 1. 9 ATTENDANCE AT THE HEARING
If on the day set for the hearing of a review for which due notification has been given:-
1. the applicant appears and the procuring entity fails to appear, the hearing of the
request for review shall proceed in the absence of the procuring entity unless the
Review Board deems it fit to adjourn the hearing.
2. the procuring entity appears and the applicant does not appear, the request for review
shall be dismissed unless the Review Board deems it fit to adjourn the hearing.
3. if both parties fail to appear as the request for review shall be dismissed unless the
Review Board deems it fit to adjourn the hearing.
An application adjourned due to any of the above mentioned reasons will be listed for
determination within fourteen (14) days of the date of the adjournment and any cost to
the adjournment consented to by the board, shall be paid by the party whose default has
necessitated the adjournment or as the Board may determine.
7. 1. 10 PROCEDURE AT THE HEARING
i. Preliminary Objection
A party notified may file a preliminary objection to the hearing, setting out the grounds
upon which the preliminary objection is based and this should be served on the applicant
at least one day before the hearing of the request for review. The preliminary objection
should be filed with the Secretary of the Review Board within five days from the date of
the party (applicant) being notified.
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The applicant requesting the review may file a reply to the preliminary objection before
the time of the hearing of the request.
The Review Board will then hear the preliminary objection and make a determination
whether to uphold or dismiss the same and will record the reason for the determination.
If the Review Board dismisses the preliminary objection, it will soon thereafter proceed
to hear the request for review as scheduled.
ii. First opportunity to present
At the hearing of the request for review, unless decided otherwise by the Review Board,
this will be the procedure;
The applicant shall be given the first opportunity to present the case in support
of the request.
The procuring entity shall then be given an opportunity to reply thereto.
The interested candidates who have submitted information and arguments may
be permitted to make representations thereon.
The Board may limit the time allowed for representations by parties and interested
candidates or their representatives.
iii. Hearing of the request
Hearing of review proceeding shall be open to all parties and interested candidates to the
review.
The Review board may, at the hearing of the request exclude any person from the hearing
whom it deems is unruly, interruptive or otherwise conducts himself/herself in an
unreasonable manner.
The parties to the review should make their submissions based on the grounds submitted.
iv. Questions at hearings
The chairman or a member of the Board may at any stage of the hearing ask any
questions to the parties, interested candidates or their representatives, which he considers
necessary to the determination of the Review.
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iv. Consolidation of requests
Where two or more requests for review are instituted arising from the same tender or
procurement procedure the Review Board may consolidate the requests and hear them as
if they were one Request for Review.
v. Withdrawal of request for review
A request for review may be withdrawn at any time before the hearing by notice in
writing to the Secretary signed by the applicant. The Secretary shall sermon parties to
make an appearance before him so as to make them aware of the withdrawal. Upon such
notice being received the request for review shall be deemed to have been withdrawn.
Request for review may be withdrawn at the hearing only with the consent of the Board.
When a request for review is withdrawn, the Secretary shall forthwith inform the Review
Board and all parties to the review of the withdrawal.
vi. Experts
The Review Board may engage an expert to assist it in proceedings in which it feels it
lacks the necessary expertise but the opinion of the expert shall not be binding to the
Review Board.
vii. Rules of evidence
The Review Board shall not be bound to observe the rules of evidence and/or the Civil
Procedure Rules in the hearing of a request under these Regulations.
viii. Proof of documents
An order of the Review Board certified by both the Chairman and the Secretary to be a
true copy thereof shall in any legal proceedings be prima facie evidence of the issuance
of that order.
ix. Communication to the review board
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All communications to the Review Board relating to matters pending before the Review
Board shall be through the Secretary. No party or interested candidate to the Review shall
communicate outside the hearing of the Review with the Chairman or any other member
of the tribunal other than the Secretary.
x. Decisions of the Board
The Board determines a review by considering the documents and information submitted
before it and any other relevant materials the Board deems necessary.
The decision of the Board shall be delivered to the parties immediately it is concluded. A
copy signed by the Chairman and the Secretary as a true and correct record of the
decision is issued to parties within seven days after determination of the review.
Where the decision of the Board arises from a tie in the votes of Board members, the
decision will be signed by all members subscribing to it. A decision made by the Review
Board shall be final and binding on the parties unless judicial review thereof commences
within fourteen days from the date of the Review Board’s decision.
The Secretary records the proceedings of meetings and hearings of the Board and
includes that record, together with a copy of the decision, in the minutes of the board,
which is signed by the Chairman and the Secretary as a true and correct record of the
proceedings and decision.
7. 1. 11 RIGHT TO JUDICIAL REVIEW
Any party to the review aggrieved by the decision of the Review Board may appeal to the
High Court, and the decision of the High Court shall be final.
Judgment from the High Court should be tabled before the Review Board with a view of
the Board looking at the findings of the High Court vis a vie their Decision.
A party to the review which disobeys the decision of the Review Board or the High Court
shall be in breach of the Act and any action by such party contrary to the decision of the
Review Board or the High Court shall be null and void. If judicial review is not declared
22
by the High Court within thirty days from the date of filing, the decision of the Review
Board shall take effect.
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9. FORMS
APPENDIX A
SCHEDULE 1
FORM RB1
REPUBLIC OF KENYA
PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD
APPLICATION NO…………………………………….OF…………..……….20……...
BETWEEN
……………………………………..……………………….APPLICANT
AND
…........……………………………..…………….RESPONDENT (Procuring Entity or
Director General)
Request for review of the decision of the ………….. (Name of the Procuring Entity or Director
General) of …………..dated the ………..day of ……….….20……..in the matter of
Tender no………….of ……………20…..
REQUEST FOR REVIEW
I/We ………………………….the above named Applicant(s) of address: Physical
address………………Fax No……Tel. No……..Email…………..hereby request the
Public Procurement Administrative Review Board to review the whole/part of the above
mentioned decision on the following grounds, namely:
1.
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2. e.t.c.
By this memorandum, the Applicant requests the Board for an order/orders that: -
1.
2. e.t.c.
SIGNED
…………………………………………………………
Applicant
Dated on……………………….….day of ………………………….20…
FOR OFFICIAL USE ONLY
Lodged at Public Procurement Oversight Authority on………..……day of....
20….…………
SIGNED…………………………………..…………………………………………
Board Secretary
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APPENDIX B
NOTICE TO PARTIES
MINIMUM REQUIREMENTS FOR AN APPLICATION FOR
REVIEW
10. The minimum requirements for a Request for Review to have feet under The
Public Procurement and Disposal Act, 2005 and the Regulations, 2006
include: -
11.
12. a) Under Section 93(1), an Applicant seeking review must specify the
breach of duty imposed on the Procuring Entity by the Act and the
Regulations which has or may result in the applicant suffering loss or
damage. Thus, the grounds of review must specify: -
(i) The alleged breach of the Act and the Regulations
(ii) The loss, damage or suffering, which the applicant has or is likely
to suffer.
b) Under Regulation 73(1) the review shall be made in Form RB 1
c) Under Regulation 73(2)(a), the complainant must specify in the grounds
of Review: -
(i) The act or the omission by the procuring entity
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(ii) Reasons for the complaint, including loss or damage suffered or
likely to be suffered.
d) Regulation 73(2) (b) provides that the request for review should be
accompanied by such statements as the Applicant considers necessary to
support its request. This of necessity implies that a complainant should
forward, together with his grounds of review, information and arguments
to support the grounds of his/her case.
e) Under Regulation 73(2) (e) the complaint must be accompanied by the
requisite fee.
f) One has to be a candidate as defined under section 3 of the Act.
NB:
Unless complaints point to specific alleged wrongs under the Act and the
Regulations, the Board will be fettered in its capacity to adjudicate over the
complaint and would be forced to dismiss the complaint.
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APPENDIX C
REPUBLIC OF KENYA
PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD
APPLICATION NO…../ ……… OF …………………
BETWEEN
………………………………….…….. …….…….…… APPLICANT
AND
……………………………………..…………………..PROCURING ENTITY
TO:
1. ………………… (Applicant)
2. …………………. (Procuring Entity)
NOTIFICATION OF APPEAL
ITEM: ………………………………..
You are hereby notified that on the …………………… a Request for
Review was filed with the Public Procurement Administrative Review Board
in respect of the above mentioned tender.
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Under the Public Procurement and Disposal Act 2005, Section 68, no
contract may be signed between the Procuring Entity and the tenderer
awarded the contract unless the Appeal has been finalized.
A copy of the Request for Review is forwarded herewith to the Procuring
Entity
Dated on …………………
………………………………….
Board Secretary
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APPENDIX D
REPUBLIC OF KENYA
PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD
REQUEST NO…………..OF………..20…….
BETWEEN
…………………………………………….APPLICANT
AND
………………………………………….RESPONDENT (Procuring Entity or Director
General)
TO:
1) ………………….. (Procuring Entity or Director General)
2) ………………………..(Applicant)
HEARING NOTICE
Whereas ……….the Applicant herein has instituted a compliant against …… (Procuring
Entity or Director General) on ……. (Date) particulars of which were set out in a Request for
Review served upon you on the ……day of………….
You are hereby required to appear on the …. day of …………., 200.. at ……. O’clock
when the complaint against you will be heard by this Board sitting at National Bank
Building, 10th
floor, Board Room along Harambee Avenue.
If you fail to appear, the Applicant may proceed with the complaint and determination by
order of the Board may be made in your absence.
30
Dated on……………day of…………..20…………….
…………………………
Board Secretary.
APPENDIX E
National Bank Building
Telephone No. +254 (020)3598794, 3598791
Fax: +254 (020) 2119420
When replying please quote:
P.O. Box 58535-00200
NAIROBI
KENYA
CASE FILE NO……….. (Date)
(The Accounting Officer)
(Procuring Entity)
P.O Box ………………………
……………………I
RE: TENDER NO. ……………………FOR ………………………………….
31
You are hereby informed that on (date) a Request of Review was filed with the Public
Procurement Administrative Review Board in respect of the above tender.
Please submit your response in 15 bound copies within 7 days from the date of this letter,
including a soft copy of the response, background to the tender and evaluation on the appeal.
Please ensure that all documents submitted to the Review Board are properly paginated. You are
required to complete the mandatory declarations in Part A of Schedule 1 Form 5 attached and
submit the documents listed in Part D of the same Schedule. In addition, you are required to
immediately submit to the undersigned the contact addresses of those who participated in this
tender which should include their Postal address, Telephone and Fax numbers.
Please note that according to the Public Procurement and Disposal Act 2005, section 94, the
procurement process should be stopped and no contract subject to the Regulations can be signed
between the Procuring Entity and the successful tenderer until the appeal has been finalized.
A copy of the Request for Review together with Schedule 1 Form 5 is forwarded herewith.
BOARD SECRETARY
PUBLIC PROCUREMENT ADMINISTRATIVE
REVIEW BOARD
(Encls)
32
APPENDIX F
SCHEDULE 1
FORM RB2
REPUBLIC OF KENYA
PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW
BOARD
NATIONAL BANK BUILDING,
11TH
FLOOR,
P.O BOX 58535- 00200
NAIROBI
APPLICATION NO……/……….. OF …………. 200..
DOCUMENTS REQUIRED FROM THE PROCURING ENTITY
DESCRIPTION
Documents
Required
Documents
Submitted
PART A – MANDATORY DECLARATIONS
(ALL CASES)
1.a) All the tenders which are the subject matter of the appeal have been
rejected pursuant to Regulation 15 ……………………..YES/NO
(Delete the inappropriate)
b) If Yes: The written communication cancelling all tenders is
forwarded herewith
2. a) A contract has been concluded and signed arising from the tender
which is the subject matter of appeal herein………….. YES/NO
(Delete the inappropriate)
b) If Yes: The original (or a certified copy) of the signed contract is
33
forwarded herewith
We hereby solemnly and sincerely confirm that the Declarations in Part A
herein are true to the best of our knowledge
Signed by Authorised Officer of the Procuring
Entity………………………………………….
Name………………………………………….
Designation……………………………………
PART B – MANDATORY ITEMS
1. List of all Tenderers who participated in the tender under appeal. The
list must include:
a) Full names and description of each Tenderer
b) Tenderers’ Postal and Physical Address
c) Telephone number
Fax number and e-mail address (if available)
PART C– PRE-QUALIFICATION
1. Pre-qualification /Tender Advertisement Notice
2. All original Pre-qualification Application Documents
3. Original Opening Register for Pre-qualification of applicants
4. Minutes of Opening of the Pre-qualification
5. Original Pre-qualification Evaluation Report
6. Copies of Letters of Invitation addressed to Pre-qualified applicants
PART D– OPEN TENDER AND OTHER
PROCUREMENT METHODS
1. Tender Advertisement Notice
2. All original tender documents
3. Minutes of the Tender Opening Committee
4. Blank copy of tender document (Technical and Financial) issued to
Candidates
5. Original Tender Opening Register
6. Original Technical Evaluation Report and Recommendations(soft and
hard copies)
7. Original Financial/Commercial Evaluation Report and
34
Recommendations
8. Signed Minutes of the Tender Committee approving the Award of
the Tender
9. Copies of Letters of Notification to the successful/unsuccessful
tenderers
10. Procuring Entity’s Response to the grounds of Appeal
11. Samples
12. Samples Register
13. Any other information and correspondence(s) relevant to this tender
(as per annexed list)
PART E- FOR OFFICIAL USE ONLY:
OTHER ITEMS
1. Submission to PPARB Secretariat within seven (7) days………….
2. Price validity period
Name of Procuring Entity Representative delivering documents: …………………….
Designation:……………………Signature………………Date …………………………
Name of Secretariat Officer Receiving documents: ……………………………………
Signature ……………………………….Date ……………………………. …………..
NB:
1. This form should be returned to the Secretariat together with comments on the
Request for Review.
2. All documents submitted to the Appeals Board should be properly paginated.
Dated the ………day of ….., 200….
SECRETARY,
PUBLIC PROCUREMENT ADMINISTRATIVE
REVIEW BOARD
35
APPENDIX G
REPUBLIC OF KENYA
PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD
FEES FOR REVIEW
1. Administrative Fee - Kshs. 2,000/=
2. Upon filing a request for review the fees payable shall be as follows: -
AMOUNT OF TENDER
(In Kshs.)
FEES
(In Kshs.)
A – TENDERS OF ASCERTAINABLE VALUE
Does not exceed Kshs. 2,000,000 1% subject to a minimum of Kshs. 10,000
Exceeds Kshs. 2,000,000 but not over
Kshs. 50,000,000
The fees for Kshs. 2,000,000 plus an additional
fee of 0.1% on the amount above Kshs.
2,000,000
Exceeds Kshs. 50,000,000 The fees for Kshs. 50,000,000 plus an
additional fee of 0.025% on the amount above
Kshs. 50,000,000 subject to a maximum fee of
Kshs. 80,000
B – TENDERS OF UNASCERTAINABLE VALUE
(i) Pre-qualification
Simple Tenders Kshs. 10,000
Medium Tenders Kshs. 20,000
Complex Tenders Kshs. 40,000
36
(ii) “As and When Required Tenders”
Simple Tenders Kshs. 10,000
Medium Tenders Kshs. 20,000
Complex Tenders Kshs. 40,000
(iii) Any Other Tenders Fees as determined by the Secretary subject to a
minimum of Kshs. 10,000 and a maximum of
Kshs. 20,000
3. Upon grant of an adjournment to a party by the Board - Kshs. 5,000
4. The decision of the Secretary on the fee payable shall be final
APPENDIX H
GENERAL GUIDELINES FOR ANALYSIS OF A TENDER PROCESS
A. DOCUMENTS CONFIRMA-
TION
YES NO REMARKS
1. Tender Advertisement/Tender Notice (Section 51 of the
Act)
a. Tender No.
b. Brief description of goods, works and services
c. How to obtain tender documents and fee of any
d. Where and when tenders must be submitted, where and when
tenders will be opened
37
e. Invitation to bidders or the representatives to attend the
opening of tenders
f. Any addendum pursuant to section 53
2. Tender Document (Sections 29(4), 52 and 53 of the Act)
Standard Tender Documents
a. Invitation to tender:
Form of tender
Closing/opening
Validity of tenders
Validity of bid security
b. Tender Security:
Form and amount of bid security (if required)
Validity period, source of the bond (reputable bank,
insurance company, financial institutions)
c. Validity period of tender prices
Compare with the invitation/advertisement
d. Evaluation criteria
Levels of evaluation
Preliminary
Technical
Financial
e. Special conditions of contract
f. Schedule of requirements
g. Technical specifications
B. TENDER OPENING, EVALUATION AND AWARD CONFIRMATION
1. Tender Opening (Section 60 of the Act) YES NO REMARKS
38
Tender opening minutes reflecting:
Membership of tender opening committee
Names of bidders
Tender sum for each bidder
Submission of bid security, amount and source
Issues if any raised by the bidder/representatives during
the opening or by the Procuring Entity
Response made to the issues raised during the opening
2. Tender Evaluation (Section 66 of the Act and Regulation
47, 48, 49 and 50)
Membership of the tender evaluation committee
Criterion/parameters evaluated as compared to those in
the tender document and the advertisement
The minimum score (cut-off points) required for the
bidder to proceed to the next stage
Proper expression of each criteria
Fair allocation of scores per parameter
New criteria introduced during the evaluation
Any criteria dropped during the evaluation
39
Validity of the tender/extension if any
Validity of the bid security
Form of tender and tender sum
3. Tender Award (Section 67 of the Act)
Composition of the Tender Committee Members (note:
no member of the Tender Committee should have
served in the evaluation committee pursuant to
Regulation 16(4)
Date of the meeting vis-avis tender/bid security validity
period
Award to the lowest evaluated bidder
Was notification to all candidates done at the same
time?
Is there any contract signed as per Section 68?
Is there any order placed?
