A multibillion-shilling pre-exports inspection tender by the Kenya Bureau of Standards (Kebs) has been suspended by the High Court, marking the third such decision by judges and the public procurement watchdog.
In the latest development, Justice John Chigiti suspended the tender following a petition by TUV Austria Turk, alleging that Kebs notified bidders of awards before considering the professional opinion, as required by section 84 of the Public Procurement and Asset Disposal Act.
Kebs invited tenders in January for Pre-Export Verification Conformity (PVOC), for the years 2025-2028. A total of 19 firms submitted their bids.
TUV Austria Turk said despite identifying the anomaly under the procurement law, the Public Procurement Administrative Review Board (PPARB) failed to address the matter, in contravention of the law.
“As such, the resulting risk is that the decision (of the board) sanitises an unlawful process and it can be said was calculated to defeat statutory safeguards,” the firm said in the petition.
The judge directed the case to be mentioned on July 7, 2025, to confirm whether parties have filed their responses. “That pending the hearing and determination of the present case… a stay of finalisation of the tender process, including entering into contracts with the bidders pre-qualified in the notifications dated April 24, 2025,” the court order stated.
The Austrian firm has named Kebs, the Review Board, and Quality Inspection Services Japan (QISJ), as respondents in the case.
On June 16, the PPARB dismissed three petitions, including the one by TUV Austria Turk, which challenged the tender process. Through lawyer Sisule Musungu, the firm pointed out that Kebs' accounting officer executed the notification on April 24, 2024, and the professional opinion was issued on April 25, 2025.
He further said the proceedings before the board revolved around the interpretation of audited financial accounts.
According to Mr Musungu, the firm tabled before the review board a technical guidance, in the form of standards developed by the International Auditing and Assurance Standards Board (IAASB).
But despite providing the same, the board allegedly disregarded the document without justification and imposed a layman’s interpretation on a technical document.
“On account of this error, the board misinterpreted two critical positions of the financial statements, a position which significantly prejudices the ex-parte applicant,” he said.
The firm added that the board took into account irrelevant considerations and in doing so, unlawfully imposed a mandatory requirement not expressed in the tender documents.
“The review board improperly imposed that the audited and approved financial statements ought to have been prepared in accordance with the International Financial Reporting Standards, a financial framework not expressly stipulated in the tender documents,” said Mr Vincent Awich, technical manager at the firm.
Last month, the board chaired by Ms Alice Oeri dismissed the applications stating that the failure to provide audited financial statements constituted a violation of the mandatory requirements, thereby rendering the bid non-responsive.
“In view of the foregoing, the board finds that the applicant did not submit a full set of audited financial statements as claimed in paragraph 10 of the Request for Review. Consequently, the applicant's submission fell short of complying with Mandatory Requirement No. 9,” Ms Oeri said.
In the tender, nine firms were found non-responsive at the preliminary evaluation stage, while 10 bidders met all the mandatory requirements and were accordingly declared responsive.
The head of procurement at Kebs Ms Jane Ndinya, reviewed the procurement process on April 25 and concurred with the evaluation committee’s recommendation to pre-qualify the ten tenderers, subject to the conduct of due diligence.
TUV Austria Turk, TIC Quality Control, and Bay Area Compliance Laboratories Corp challenged the process at the review board arguing that they were knocked out unfairly.
The review board dismissed the applications and allowed Kebs to proceed with the process.
