The Public Procurement Administrative Review Board.

An efficient procurement process is a prerequisite to stable development. In Kenya, the legal

framework for this process is laid down by the Public Procurement and Disposal Act, and the Public
Procurement and Disposal Regulations of 2006.
The Public Procurement Administrative Review Board is a board formed under the Public
Procurement and Disposal Act of 2005 at section 25. It is a continuation to the Public Procurement
Complaints, Review and Appeals Board. The latter was formed under the Exchequer and Audit
(public procurement) Regulations, 2001 at s.41 and its primary objective was to impartially and
judiciously adjudicate matters that arose within the procurement process.
Section 93 of the Public Procurement and Disposal Act provides that any person who claims to have
suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procurement
entity by the Act or the Regulations may seek administrative review It is therefore a tool for dispute
resolution. However, there are some matters that are not open to review. These include the choice of
the procurement procedure, a decision by the Authority to reject all tenders, proposals or quotations or
where a request for review is frivolous or vexatious.
The Public Procurement Administrative Review Board was established as part of the governments
attempt to streamline the procurement process. Much to do with it is provided for in the Public
Procurement and Disposal Regulations of 2006.They provide for its composition and procedure.
The board is made of a total of ten people. Most of these are nominated by a range of bodies that
represent various sectors of the public. The Regulations provide as follows,

Composition and membership.

68. (1) Pursuant to section 25 of the Act, the Review Board shall comprise of(a) Six members appointed by the Minister from among persons nominated by;
(i) The Kenya Association of Manufacturers;
(ii) Law Society of Kenya;
(iii) The Architectural Association of Kenya;
(iv)The Institution of Engineers of Kenya;
(v) The Institute of Certified Public Accountants of Kenya;
(vi)The Kenya Institute of Supplies Management;
(vii) The Institute of Certified Public Secretaries of Kenya;
(viii) The Chartered Institute of Arbitrators;
(ix)The Kenya National Chamber of Commerce and Industry;
(x) The Kenya Institute of Management;
(xi) The Computer Society of Kenya;

(xii) The Pharmaceutical Society of Kenya;

(xiii) The Federation of Kenya Employers;
(xiv) The Central Organization of Trade Unions
(b) Three other members appointed by the Minister;
(c) A Chairman appointed by the Minister from among the persons appointed under paragraph (a);
(2) Each organization referred to in sub regulation (1) (a) shall submit to the Minister the curriculum
vitae of two members being nominated of whom one shall be a woman.
(3) The Director General shall appoint a Secretary to the Review Board from amongst the staff of the
Authority.
S.71 of the Regulations provides that the Chairman of the Board or any other member may resign at
any time by notifying the minister in charge. Besides, the minister may terminate a persons
appointment to the board on the grounds of Bankruptcy, inability to perform by reason of physical or
mental inability, absenteeism for three consecutive times without good reason or conviction under (a)
The penal code (b) The Anti-corruption and Economic Crimes Act or(c) The Public Procurement and
Disposal Act under which the applicable regulations are formed.

Functions of the Board

Like its predecessor, the major function of this Board is to impartially and judiciously handle dispute
arising from the procurement process. It is a viable alternative to the court process, which may
disadvantage the parties, especially due to the time taken. It also hears and determines any preliminary
objections that may be filed.
Beyond handling disputes by independent parties, it adjudicates decisions of the Director General
against any procurement bodies and also hears cases of disbarment of suppliers from participating in
the procurement process.
The board also offers general legal advice to procurement entities in relation to conflicts and hearings
of the review

Powers of the Board

These are provided for at S.98 of the Public Procurement and Disposal Act as follows,
Upon completing a review, the Review Board may do any 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
Order the payment of costs as between parties to the review.

In addition to the above, the Board has power to dismiss a request for a review if the 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. This is set out in section 95 of the Act.

Mode of operation of the Board

The regulations at S.69 (1) provide that the quorum of the Review Board shall be three members
including the Chairman. This is in contrast to the case in the Public Procurement Complaints, Review
and Appeals Board whose quorum stood at five members.
(2)The Secretary may in consultation with the Chairman and the Review Board constitute a panel of
three members to hear and determine a request for review and each panel shall elect its own chairman.
(3) In the absence of the Chairman, the Review Board may designate one member to act as Chairman
for the purpose of that meeting.
(4) Decisions of the Review Board shall be taken by simple majority but in the case of a tie the
proposal supported by the Chairman shall prevail.

Procedure when applying for review.

A request for review under the Act shall be as is set out in the Fourth Schedule to the Regulations.
The request must contain,
(a)A statement of the reasons for the complaint, including any alleged breach of the Act or the
Regulations;
(b) Such statements as the applicant considers necessary in support of its request;
Moreover, such a request must be made be made within fourteen days since,(i) the occurrence of the
breach complained of where the request is made before the making of an award; or(ii) the notification
under sections 67 or 83 of Act. It shall be submitted in fifteen bound copies and a soft copy, pages of
which shall be consecutively numbered.
Every request for review shall be filed with the Secretary of the Review Board upon payment of the
requisite fees. The Secretary shall acknowledge filing of the request for review. Any communication
on a matter pending is done through the secretary.
The Secretary shall immediately after the filing of the request under Regulation 73, serve a copy
thereof on the procuring entity or Director General as the case may be. The copy to the procuring
entity above shall also contain a notification of the pending review and the suspension of the
procurement proceedings of such procuring entity. This is also provided for at section 94 of the Act.
(3) Upon being served with a notification of a request, 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 reasons for the request together with
such documents as the Secretary may specify.
(4) The Secretary shall, 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
review. He or she shall then proceed to give reasonable notice of the date fixed for hearing to all
parties to the review and it shall be in the format provided for in the Act.

Parties to the hearing may be represented by counsel of their choice at the hearing, which is not bound
by the rules of evidence which govern regular court proceedings.
The party requesting review may at any time withdraw the application, and the secretary shall inform
all parties interested.
As a rule of procedure, the Review Board operates between 8:00 AM and 5:00 PM. Besides, any
member of the Review Board with an interest in the matter in question is expected to bow out of those
particular proceedings.
Procurement proceedings are a matter of urgency that should be handled as fast as possible. The
review proceedings act as an automatic stay to the process. It is for this reason that the Act provides
that The Review Board shall complete its review within 30 days after receiving the request. In no case
shall any appeal under the Act stay or delay the procurement process beyond the time stipulated in the
Act or The Regulations.

The Public Procurement Administrative Review Board and Judicial Review.

The High Court has the constitutional mandate to handle Judicial Review matters in its Judicial
Review Division. The Review Board is established and empowered by statute. Moreover its functions
are of a public nature. It follows, therefore that its decisions or actions are amenable to judicial review
proceedings. In this respect the High Court can quash the Boards decision by order of certiorari, or
prohibit it from acting in a particular way, or compel it by an order of mandamus. This is given
credence in the Public Procurement and Disposal Act at Section 100 which provides as follows,
1. A decision made by the Review Board shall be final and binding on the parties unless judicial
review thereof commences within 14 days from the date of the Review Boards
decision.(This is a departure from the 30 days that were provided for in the Exchequer and
Audit(public Procurement)Regulations 2001)
2. 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. Case law suggests that one can
appeal to the Court of Appeal and possibly even to the Supreme court.
3. A party to the review which disobeys the decision of the Review Board or the High court
shall be in breach of this Act and any action by such party contrary to the decision of the
review Board or the High Court shall be null and void.
4. If judicial review is not declared by the High Court within 30 days from the date of the filing,
the decision of the Review Board shall take effect. This provision has been declared
unconstitutional by the courts. The case of Republic v. Public Procurement Review Board
and another ex parte Selex Sistemi Integrati (2008)eKLR
The Act at Section 99 provides that the right to request a review under the regulations is in addition to
any other legal remedy a person may have. This could be interpreted to mean that one may move the
matter directly to the High Court and bypass the Review Board. In some cases though, the matter may
fall outside judicial review. Such a step may be to the disadvantage of the parties. This is majorly
because of the time that the High Court may take in dealing with the matter, while the Review Board
cannot go beyond the statutory limit of 30 days.

Case law.

Republic v Public Procurement Administrative Board ex parte Kenya Medical Supply Agency and
Three others.
The High Court granted an application for an order of certiorari By the Kenya medical supply agency
, crown agents and Deutsche Gesellschaft Fur TEchnishe Zusammenarbeit(Herein called the
consortium)compelling the consortium to admit the bid documents by the complainant, Hetero Drug
ltd, and to carry out a fresh re-evaluation of the entire procurement process. The consortium had been
involved in the procurement and supply chain management on behalf of the ministry of health for
antiretroviral drugs. On March 6 2009, Kemsa advertised a tender for the supply of the ARV drugs.
Tender documents made available to intending bidders set out the manner and format in which bids
would be submitted. It was a requirement that a tenderer should prepare two sets of documents an
original copy and copies of the tender clearly marking each one as original tender and copy of the
tender as appropriate. It also stated that in the event of a discrepancy between the two, the original
would govern. According to Kemsa, the tenders submitted were opened in public and the
consortiums representatives proceeded to evaluate the bid documents. It was then discovered that the
tender documents submitted by Hetero Drug Limited included a scanned copy of the original
document. For that reason, Heteros document was declared non responsive for failing to comply.
Hetero being dissatisfied requested the public procurement admin review board to re-examine the
decision. Hearing both sides, the board considered the review in favour of hetero and ordered kemsa
to carry out a fresh evaluation. It moved to the high court for judicial review seeking orders for
certiorari quashing the Boards decision.
The Public Procurement Administrative Review Board had no jurisdiction to waive the obvious
mandatory statutory requirements or even to handle to the review in the negative manner that it did. It
exceeded its jurisdiction, overstepped its mandate by dealing with issues which had not been pleaded
before it and in doing so reached a wrong decision. To find otherwise would be tantamount to
negating the whole essence of the Public Procurement and Disposal Act and to encourage actions
which would best be described as ultra vires, and in any event be null and void.

Republic v Public Procurement Administrative Review Board and Another Ex Parte Selex
Sistemi Integrati(2008)Eklr
The High Court in this case overturned the provisions of the PPDA s.100(4)which provide that if a
party is dissatisfied with the decision of the PPARB and preferred to challenge the same through
judicial review, that review should be determined within 30 days. Selex Sistemi Integrati had
participated in a tender which had been announced by the Kenya Civil Aviation Authority and which
the authority cancelled before the results of the tender had been announced. Aggrieved by the decision
to terminate without giving reasons for the decision to terminate the tendering process, the respondent
lodged an appeal for administrative review with the Review Board. It upheld the decision of the
Kenya Civil Aviation Authority. The respondent filed for judicial review at the High Court on 20th
Dec. 2007 challenging the decision of the Review Board. When the application came up for hearing
the Courts attention was drawn to a Notice Of Preliminary Objection made by the Civil Aviation
Authority that the court had no jurisdiction to hear a judicial review application, which had not been
determined within thirty days and further that the Limitation clause was put there to ensure speedy
determination of the public tendering process. The judge stated that section 100(4) of the Public
Procurement and Disposal Act 2005 offends provisions of section 77(9) of the Constitution (the
repealed one) which provides what a reasonable time should be for any judicial task or function. He
stated that the legislature by providing that the courts must hear and determine a judicial review case
within thirty days was a deliberate encroachment to the strictly operational independence of the

judicially which is an independent arm of government and therefore section 100(4) was
unconstitutional.
The above cases are illustrative of the concepts of administrative review (in some jurisdictions called
merit review) and judicial Review. Administrative review is carried out by tribunals, boards or other
quasi -judicial body. On the other hand, judicial review is carried out by established courts of law, and
in many cases may arise from an administrative review process. The rules of evidence that govern a
judicial review process are those applicable in any other trial, unlike administrative review tribunals
which are not bound.