The public procurement watchdog has rejected a bid by three firms to stop the Kenya Bureau of Standards (Kebs) from proceeding with a multi-billion-shilling tender for inspection of goods before leaving exporting countries.
The Public Procurement Administrative Review Board (PPARB) upheld Kebs’ decision to lock out the trio from the bid after failing to submit their audited financial statements to help gauge their strength.
TUV Austria Turk, TIC Quality Control, and Bay Area Compliance Laboratories Corp wanted the process stopped arguing that they were disqualified from the tender over minor deviations that did not materially affect the substance of their bids.
The board chaired by Alice Oeri, however, dismissed the applications stating that 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. Kebs invited bids in January for Pre-Export Verification Conformity (PVOC), for the year 2025-2028.
Some 18 of the 19 bidders were international candidates.
Nine firms, including the three firms, were found non-responsive at the preliminary evaluation stage.
Ten bids 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 10 tenderers, subject to the conduct of due diligence.
Kebs defended its action stating that bidders were required to demonstrate financial stability and experience, which was best assessed through audited financial statements spanning five years.
The three firms challenged the process before the PPARB arguing that they were knocked out unfairly.
TUV Austria submitted that the ground of disqualification was vague and ambiguous, lacking specific details on the alleged omissions or deficiencies in the submitted financial statements.
The firm maintained that its bid was responsive and should not have been disqualified. Further, the firm pointed out that the same financial statements had been accepted in a previous tender by Kebs.
TIC Quality Control submitted that the failure to provide five years’ audited financial statements constituted, at most, a minor deviation that did not materially affect the substance of its bid.
The firm said such minor deviations had been anticipated by the tender document, and Kebs had the discretion to waive them where they did not impact a bidder’s technical or financial capability.
Bay Area Compliance Laboratories Corp on its part challenged the objectivity of the five-year audited financial statements requirement.
The firm submitted that the inclusion of the years 2019 and 2020, during which the global and national economies were negatively impacted by Covid-19, rendered the requirement unreasonable and of limited probative value.
The requirement, Kebs argued, was not cosmetic but central to evaluating the suitability and stability of the bidders.
The agency said the disqualification was not unfair or unreasonable, but a lawful consequence of failing to meet a mandatory requirement set out in the tender document.
“The Accounting Officer of the Kenya Bureau of Standards is hereby directed to oversee the tender proceedings for Tender No. KEBS/pre-q/t006/2025/2028 – pre-qualifications for provision of Pre-export Verification of Conformity (PVOC) to standards services the year 2025-2028 to their logical and lawful conclusion,” the board said.
Last month, the Court of Appeal dismissed an application by a Kenyan firm, which sought to stall the process arguing that Kebs had unfairly locked out local firms from the tender.
Precision Experts Ltd had challenged the process arguing that the tender discriminated against citizen contractors. However, the case was dismissed because it was filed out of time.
The Kenyan firm challenged the tender arguing that some mandatory requirements in the tender documents were discrimination against citizen contractors, unreasonably excessive, and contrary to the provisions of the Public Procurement and Asset Disposal Act, 2015.
The firm’s bid was dismissed by the Review Board in March and the company moved to the High Court, but the same was thrown out by Justice John Chigiti on April 11, stating that the petition was filed out of time.
Precision Experts Ltd then rushed to the Court of Appeal and obtained temporary orders, stopping the tender process but the case was eventually dismissed.
