Kenya Railways Corporation (KRC) has been cleared to proceed with the award of an Sh817 million consultancy tender to Mace YMR LLP for the design and construction of the Nairobi Railway City Central Station after the procurement watchdog dismissed a challenge by a rival bidder.
The Public Procurement Administrative Review Board upheld the corporation’s decision to disqualify Dar Kenya/Dar Plus Joint Venture at the preliminary evaluation stage, finding that the consortium failed to meet mandatory requirements set out in the tender document.
The project forms part of infrastructure developments jointly financed by the governments of Kenya and the United Kingdom under the UK Export Finance (UKEF) Framework.
The two firms had submitted bids to provide consultancy services for the flagship project. However, after the preliminary evaluation, Dar Kenya/Dar Plus JV’s bid was declared non-responsive and excluded from further consideration, while Mace YMR LLP advanced to the technical evaluation stage.
Mace YMR LLP’s proposal was subsequently found to be responsive and substantially compliant, with a proposed contract sum of Sh817,677,187.
In its review before the board, Dar Kenya/Dar Plus JV argued that its disqualification was unlawful because the shortcomings identified by Kenya Railways amounted to minor deviations that did not affect the substance of its bid.
The consortium relied on Article 227 of the Constitution and Section 79 of the Public Procurement and Asset Disposal Act, which allow procuring entities to disregard minor deviations that do not materially alter a tender.
The firm contended that omissions relating to certain practising licences for auditors and missing signatures in audited accounts were minor defects that could not justify disqualification.
It further maintained that its bid had initially passed the mandatory evaluation stage and proceeded to technical evaluation, demonstrating that the procuring entity had considered it responsive before later reversing its position.
Kenya Railways, however, defended the decision, insisting that the bid failed to satisfy mandatory requirements and was therefore properly disqualified.
The corporation argued that Article 227(1) of the Constitution and Sections 79 and 80 of the procurement law require procuring entities to evaluate bids strictly in accordance with criteria contained in the tender document and do not permit the waiver of mandatory requirements.
The board heard that bidders were required to submit certified audited accounts for any three consecutive financial years drawn from 2021, 2022, 2023 and or 2024.
