Pan African Transformers & Switch Gears Limited & 2 others v Public Procurement Administrative Review Board & 3 others
The bottom line
#Kenya's Court of Appeal confirmed that bidders cannot force a procuring entity to change its procurement method or tender specifications through judicial review.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge failed to consider the merits of the issues raised before him in the judicial review application
Key legal issues
#Whether a judicial review court may delve into the merits of the Review Board's decision
No. The High Court correctly confined itself to the decision-making process; the appellants were improperly seeking merits review and fresh evaluation of evidence.
The Court reaffirmed Umoja Consultants: judicial review examines jurisdiction, hearing and relevant considerations, not the sufficiency of evidence. Although the expanded constitutional and Fair Administrative Action Act scope can in appropriate cases permit merits consideration, this case turned on a jurisdictional bar under section 167(4) PPAD Act, so the court could not go into merits.
Whether the choice of open tendering over restricted local tendering was reviewable
No. Section 167(4)(a) PPAD Act excludes the choice of procurement method from review; the appellants were dictating the procurement method to the procuring entity.
The Board found as fact that the tender allowed a margin of preference to local manufacturers and joint ventures with international bidders, so it did not violate Articles 10 and 227. The appellants' complaint was in substance an attempt to dictate a restricted tender, contrary to the letter and spirit of section 167(4)(a).
Whether the technical specifications and the addendum to the tender were open to challenge
No. Specifications are set by the procuring entity under section 60(3); the addendum was permissible under section 60, and the Board had cured the late uploading of specifications by extending the closing date by 14 days.
The procuring entity is best placed to prescribe technical specifications. The appellants' request would amount to a student setting his or her own exam. The complaint about late uploading of oil and surge arrestor specifications was cured by the Board's extension order, and there was nothing wrong with the addendum.
Whether the proportionality ground under section 7(2) of the Fair Administrative Action Act expanded the scope of review
No. Proportionality did not apply to a dispute about a tender document and its specifications; the learned judge had in any event considered the traditional grounds including proportionality.
The Court held the appellants' reliance on Suchan Investment was misplaced because even that decision merely requires proportionality to be considered, which the judge did. The dispute concerned a tender document the appellants could not dictate, a circumstance unattainable by any proportion.
Legal principles established
#- Under section 167(4)(a) of the PPAD Act, the choice of procurement method is not subject to review by the Review Board or the courts, being the exclusive mandate of the procuring entity, save where the method chosen is so irrational as to be inimical to the law
- Judicial review is concerned with the decision-making process, not the merits of the decision; a review court cannot re-evaluate evidence or technical specifications set by a procuring entity
- Specific requirements and technical specifications of a tender are set by the procuring entity and cannot be dictated by intending tenderers
Court orders
#- 1.The appeal is dismissed with costs to the 1st and 2nd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Judicial Review No. E 079 of 2022
- Jurisdiction invoked
- Appeal from the High Court's judicial review judgment; the Court also referred to its jurisdiction under section 175(1) of the Public Procurement and Asset Disposal Act
Relief refused
#The appeal in its entirety, including the invitation to have the High Court and this Court evaluate the merits of the Board's decision and the technical specifications of the tender
Judicial review is concerned with the decision-making process, not the merits; the choice of procurement method is not reviewable under section 167(4)(a) of the PPAD Act
Costs
Appeal dismissed with costs to the 1st and 2nd respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Judicial Review by its very nature is concerned with the decision making process itself and not the merit of the decision
the Board and the High Court had no jurisdiction to inquire into the choice of the procurement method, which is the exclusive mandate of the procuring entity, unless it is established to the satisfaction of the court that the method chosen is so irrational that it is inimical to the law
Under subsection (3), the specific requirements, technical or otherwise are set by the procuring entity and cannot therefore be dictated by those intending to tender
The upshot of our findings is that the appeal lacks merit and is hereby dismissed with costs to the 1st and 2nd respondents
Issues in the judgment
#The judgment inconsistently cites section 175 of the PPAD Act as 'section 175(1)' and 'section 175(ii)'
The judgment attributes two different subjects (alteration of tender documents and specific requirements of a tender) to 'Section 60' of the Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pan African Transformers & Switch Gears Limited & 2 others v Public Procurement Administrative Review Board & 3 others", Case Analysis (2022). Civil Appeal (Application) E426 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/984/eng@2022-09-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.