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Procurement body ordered to settle tender dispute

NAIROBI September 1- The High Court has directed the Public Procurement Administrative Review Board to hear an appeal lodged by an Italian company over a multi billion shillings airport refurbishment tender which was cancelled in February 2007.

High Court judge, George Dulu ruled Monday that the board erred in law, when it declined to hear an appeal by Selex Sistemi Integratti (SSI), against cancellation of a Sh2.6 billion airport modernization tender awarded to the company.

The Italian firm had appealed against cancellation of the tender, which was advertised in April, 2008 in both local and international media, after which it won through a competitive bidding process.

It argued that the board, in arriving at its decision, misinterpreted certain sections of relevant laws.

“The decision and ruling of the first respondent in Public Procurement Administrative Review Board Application of 2007, dated 17, November 2007 is vitiated by a fundamental error of law to the extent that it failed to take into account guiding principles in the interpretation of outer clauses,” a section of the complaint read.

According to court documents, the Kenya Civil Aviation Authority (KCAA) tender committee cancelled the award; before the company could formalise the contract, without giving any reasons, which then prompted the company to seek redress from the board.

In his ruling Justice Dulu invalidated proceedings of the board in, which it claimed to lack jurisdiction, saying the board had power to hear and determine the complaints made by the Italian company.

He ruled: “I have found that though the first respondent (board) decided that it had no jurisdiction, in fact it had jurisdiction, to entertain and determine the complaint of the ex-parte applicant (SSI) application on merits.”

In March this year, the High Court Judge Alnashir Visram allowed SSI to challenge a decision by KCAA to re-advertise the tender in question but declined to quash the decision to re-advertise.

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SSI had moved to court seeking to stop a move by the aviation body to invite fresh bidders for the Sh2.68 billion modernisation project.

Through lawyer Muthomi Thiankolu, SSI maintained that it would suffer ‘enormous financial loss and damage’ to the tune of Sh31 million, unless the tender is reinstated.

It termed the re-advertisement of tender, which was floated in a local daily on March 6, to be stopped, saying it sub judice because there was a pending civil suit arising over the concluded tendering g process.

Justice Visram said in his ruling that quashing the re-advertisement would compromise the country’s interest.

“The respondent stands to suffer prejudice if the stay is ordered, as the country’s national interest could be compromised,” Justice Visram ruled.


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