China Communications Services Int Ltd v Kenya National Highways Authority & another; Solution Telmec Limited & another (Interested Parties) (Application 121 of 2020) [2020] KEPPARB 36 (KLR) (15 September 2020) (Decision)

Facts

The Kenya National Highways Authority (Procuring Entity) issued a tender for civil works for the Main Build of Optic Fiber Cable for Eldoret-Lokichar-Nakodok Corridor, Lot 5: Eldoret-Lokichar Section (285KM). The China Communications Services International Limited was the successful bidder.

Issues

1. Whether the subject procurement process meets the conditions set out in section 4(2)(f) of the Act, thus ousting the jurisdiction of this Board.
2. Whether the Procuring Entity awarded the subject tender in accordance with section 86 of the Act and Regulation 77 of the Public Procurement and Asset Disposal Regulations, 2020.

Reasoning

The Board found that the subject procurement process was not exempted under section 4(2)(f) of the Act due to the lack of a bilateral agreement between the Government of Kenya and a foreign government or entity.

Outcome

The Procuring Entity's award and unsuccessful bid letters are cancelled and set aside. The procurement process is directed to be re-evaluated and concluded within 14 days.

Authorities cited