The Public Procurement processes in Kenya are time bound, and the timelines are cast in stone. Any slight non-compliance with the stipulated timelines can therefore be very costly to a bidder/tenderer, or a Procuring entity.

It is therefore prudent that all tenderers or prospective tenderers, and all procuring entities strictly comply with the requisite timelines for each procurement process as stipulated in the Public Procurement and Assets Disposal Act, 2015(the Act) and the Public Procurement and Assets Disposal Regulations, 2020(the Regulations).It is also important for tenderers to carefully read and abide by the instructions provided by the procuring entities in the Standard Tender Documents.

We have, and we continue to witness numerous cases of unfairness, opaqueness and miscarriage of justice that emanate from procurement proceedings due to the tenderers’ or even the procuring entities’ inadequate knowledge about the timelines prescribed in the Act and the Regulations.

In this article we will be sharing with our readers a succinct highlight of the crucial timelines to always have in mind when involved in a public procurement process in Kenya, and the ramifications for non-compliance.

1. Request for Judicial Review against an Order of the Director General of the Public Procurement Regulatory Authority.
   • Any Request for Judicial Review against an order of the Director-General must be filed at the High Court within fourteen days after the order is made. – S39, 42 of the Act.
2. Termination or cancellation of Procurement and Asset Disposal Proceedings
   • An accounting officer of a procuring entity who terminates procurement or asset disposal proceedings prior to notification of tender award must notify all those who submitted their tenders, and the Public Procurement Regulatory Authority within fourteen days of termination. –S63.
   • Such notice must contain the reason(s) for termination.
   • Please note that an accounting officer is not permitted to terminate a procurement proceeding after he has issued the Notification for Award.
3. Prequalification and Registration of Candidates/Potential Tenderers
   • The accounting officer of a procuring entity must allow the candidates at least fourteen days to prepare and submit their applications to be pre-qualified.-S94;Reg70.
4. Submission of Tenders
   • A tender must be submitted before the deadline for submitting tenders.-S77.
   • Please note that any tender submitted after the deadline cannot and must not be accepted by the procuring entity.
5. Opening of Tenders
   • The Procuring entity must open the tenders immediately after the deadline for submitting tenders.-S78.
6. Tender Evaluations
   • Procuring entities must evaluate the tenders within a maximum period of Thirty Days. – S80.
   • For Request for Proposals, the evaluation of the proposals must be conducted within twenty one days. – S126.
7. Notification for Award and Acceptance of Notification for Award
   • The Notification for Award to the successful bidder must be made in writing within the tender validity period/before expiry of the tender validity period. – S87.
   • The successful bidder must signify in writing, their acceptance of the award within the time frame specified in the Notification of Award.
   • The unsuccessful bidders must equally be notified in writing, at the same time the successful bidder is notified that their tenders were not successful, who the successful bidder is, and the reason(s) why their tenders were not successful.
   • Please note that the Courts have on numerous occasions determined that any Notification for Award sent after the expiry of the tender validity period is null and void.
   • It is therefore imperative that should a tenderer suspect any unwarranted delay in receiving the Notification for award, they should file a complaint at the Review Board before the expiry of the tender validity period.
8. Extension of Tender Validity Period
   • An Accounting Officer of a Procuring Entity may extend the tender validity period before the expiry of the tender validity period, for a maximum period of thirty days. – S88.
   • The extension can only be done once, and the notice of extension must be given in writing to each person who submitted a tender.
   • Please note that tender validity period cannot be extended after the expiry of the initial validity period and if done, the same would be declared null and void.
9. Signing of Procurement Contracts
   • The Procuring Entity and the Successful Bidder must both sign/enter into a written contract within the period specified in the Notification for Award, but not before the fourteen days standstill period.-S135.
   • The Contract must be signed within the tender validity period.
   • Please note that any contract signed after the expiry of the tender validity period is null and void.
10. Amendments or Variations to Contracts Price
    • No contract price can be varied upwards within twelve months from the date of the signing of the contract.- S139.
11. Final Acceptance of Goods, Works or Services
    • The final acceptance of all goods, works or services shall take place either within the period or last period of guarantee for the provisional acceptance if there has been partial acceptances; OR
    • Within sixty days before the end of the last period of guarantee on which all defects, poor workmanship and any other snags pointed out in the minute of acceptance are corrected.-Reg142.
12. Administrative Review of Procurement Proceedings
    • An aggrieved candidate or tenderer may seek administrative review at the Public Procurement Administrative Review Board within fourteen days of notification of award or date of occurrence of the alleged breach at any stage of the procurement process.-S167.
    • A party notified about the complaint may file a preliminary objection to the hearing of the request for review to the Secretary of the Review Board within three days from the date of notification.-Reg209.
    • The Review Board must complete its review within twenty one days after receiving the request for the review. – S171.
    • Please note that the above timelines are cast in stone, and any actions or rulings made after the stipulated timelines are null, void and unenforceable.
13. Judicial Review of Procurement Proceedings
    • A person aggrieved by a decision made by the Review Board may seek judicial review by the High Court within fourteen days from the date of the Review Board’s decision, failure to which the decision of the Review Board shall be final and binding to both parties.- S175 of the Act;
    • The High Court shall hear and determine the judicial review application within forty- five days after application for review, failure to which the decision of the Review Board shall be final and binding, even if the High Court rules against the Review Board’s decision.
    • A person aggrieved by the decision of the High Court may appeal to the Court of Appeal within seven days of such decision and the Court of Appeal shall make a decision within forty-five days and the decision shall be final.
    • PLEASE NOTE that should either the High Court or the Court of Appeal fails to make a decision within the above prescribed timelines, then the decision of the Review Board shall be final and binding to all parties and the decision of the High Court or Court of Appeal shall be unenforceable.