A court has temporarily stopped the Kenya Ports Authority (KPA) from receiving, considering, evaluating and processing bids and documents in relation to a tender for pre-qualification of legal services.
The High Court in Mombasa issued the order following an application by a lawyer challenging the conditions imposed by KPA in the tendering process, among them a requirement that a law firm bidding must have a partner who is a certified arbitrator.
Justice Eric Ogola issued the order pending hearing of an application by lawyer Willis Oluga, who is challenging the legality and constitutionality of the tender process as adopted by KPA.
Mr Oluga argues that KPA has made it a mandatory requirement for law firms to be pre-qualified under three categories (ABC) only if at least one of the partners is a certified arbitrator.
"The implication is that a firm that does not have a certified arbitrator among it's partners will be disqualified even if it meets other procurement requirements," said Mr Oluga.
The lawyer also argues that arbitration certification is not one of qualifications required to practice law and render legal services, hence the requirement by KPA is illegal and outside legal provisions governing the practice of law in the country.
“By requiring law firms to have at least one partner who is a certified arbitrator, KPA has imposed an illegal, unfair and uncompetitive condition that has locked out the petitioner and many other law firms whose partners are not certified arbitrators from participating in the procurement process," argues Mr Oluga.
According to the lawyer, by making arbitration certification mandatory under the three categories of the pre-qualification process, KPA has relegated his firm and many other law firms to peripheral and less attractive category D.
Mr Oluga also argues that the conditions imposed by KPA shows the evaluation criteria adopted is contradictory, skewed, impractical and deliberately aimed at locking out many candidates.
He adds that the conditions also includes the minimum number of lawyers required for each of the three categories, which requirement is mandatory and only law firms that meet the criteria are allowed to proceed to the technical evaluation.
Mr Oluga also says that the requirement that partners in a law firm must have a minimum number of years of experience is discriminatory while citing a condition of 20 and 15 years experience for categories A and B respectively.
"By imposing oppressive qualifications in terms of the number of years of experience required, restricting the requirements to partners only and by setting the minimum value of professional indemnity cover which is way beyond the minimum imposed by the law, KPA has denied the petitioner and many other lawyers an opportunity to fairly participate in the procurement process," argues Mr Oluga.
Mr Oluga says that the requirements set by KPA for assessment and evaluation of bids for pre-qualification of legal services is a breach of the Constitution, general procurement principles, unreasonable, unconstitutional, null and void.
In his petition, Mr Oluga is seeking, among other orders, a declaration that the mandatory condition imposed by KPA in the tender pre-qualification of legal services ,requiring one partner in the bidding law firms to be a certified arbitrator is illegal, discriminatory, excessive and therefore null and void.
The case will be heard on July 15.