Board cancelled award of tender because rules were flouted

The Public Procurement Administrative Review Board said it annulled the tender awarded to Geo Chem International following a successful appeal by Societe Generale Surveillance, one of the bidders.

The board said it annulled the tender because of various reasons, including that Kenya Bureau of Standards (Kebs) failed to read out the prices aloud during the opening of financial bids and also failed to record the prices in the tender opening registration.

“This was in violation of section 60 (5) of the Public Procurement Act. By failing to do so, the procuring entity failed to observe the objectives of transparency and fairness as envisaged in Section 2 of the Act,” the board said in its ruling.

It also said that Kebs erred by amending the bid documents that provided for the tender price to be a percentage of cost insurance and freight (CIF) to require bidders to quote in US dollars per cubic metre.

The Board noted that this conversion was contrary to the requirements of section 66 (2) of the Act which requires that the evaluation and comparisons of the tenders shall be done using the procedures and criteria set out in the tender documents.

Criteria

“The action of the evaluation committee in converting the bid price of the successful bidder was not based on any clause in the tender document. It was an arbitrary act which rendered the whole evaluation exercise subjective and bidders were not treated equally,” the ruling said.

It also said that Kebs used criteria that was not provided in the tender document in the financial evaluation of the bids, adding that the bureau did not use standard bidding documents on procuring services, contrary to section 29 (4) of the Public Procurement Act.

“The bid document was sold by the procuring entity at $3,000, which translates to Sh240,000 (at the time). This was contrary to the provisions of regulation 39 (1), which stipulates that the fee charged for tender documents should not exceed Sh5,000,” it adds.

The board said the high cost of the tender document was prohibitive to bidders and did not promote competition, fairness and transparency in the tender process. In addition, the successful bidder was in possession of the minutes of the evaluation, contrary to section 44 (2) and (3) and 45 (2) of the Act.