INTRODUCTION
Uniformity of procurement timelines is key as they often are stringent and fatal if not adhered to. A bidder may be notified of award or regret in a tender. You either win or lose. Section 87 of the PPAD Act provides that procuring entities must notify in writing the successful bidder of its award of tender while concurrently notifying the other unsuccessful bidders of their failure thereof.
These notifications (to the successful bidder and the unsuccessful bidders) are set on two timelines that run concurrently and for the same duration; the standstill period and the appeal window.
The standstill period is the 14 day period during which the procuring entity and the successful bidder may not enter into the procurement contract following an award. The appeal window is the 14 day period within which bidders may challenge an award after being notified of it.
They are both set off by the notification letter hence why it is key that both be sent out concurrently by the procuring entity.
FRAGILITY OF THE BOARD’S JURISDICTION
The jurisdiction of the Board is not absolute. There are a number of instances in which its jurisdiction to hear and determine these tendering and asset disposal disputes is ousted. One instance, as explained in my Article on Termination of Tenders is where a procuring entity terminates a procurement process. Another is where the Board cannot hear a dispute on a procurement process after a procurement contract has been signed after the lapse of the 14-day standstill period or after where the 14-day appeal window has lapsed.
Essentially, fourteen days after notification of award, the procuring entity and the successful bidder may enter into a procurement contract and no other bidder is allowed to challenge the same. If a contract is signed before this period is over, the contract is rendered null and void ab initio regardless of where it had reached in implementation. If a request for review is filed even on the 15th day, it cannot be heard. Look at Decision Number 51 of 2020 On the Mark Security Ltd vs KRA.
So where is the problem, this all sounds simple and straightforward.
SLUGGISH NATURE OF SLUG MAIL
Historically, the problem lies at notification of awards. Most procuring entities choose to carry out notification of award via post. This comes with some challenges.
One problem is the sluggish nature of slug mail. Let us take a hypothetical scenario where three bidders from different parts of the country bid for a restricted tender for the supply of syringes to a hospital and have been notified via post of the results of the tender. The winning bidder lives in Nairobi while the other two unsuccessful bidders reside in Mombasa and Eldoret (all these towns are a considerable distance apart). The procuring entity in this case is situated in Nairobi. Given the distance between the two unsuccessful bidders and the procuring entity which is dispatching from Nairobi, there will be clear differences in dates when the bidders became aware of the notification.
This creates a different timeline for filing bid protests for the two unsuccessful bidders if they had any protests as opposed to the standstill period between the procuring entity and the winning bidder in Nairobi for when to enter into the contract. Even assuming they were notified concurrently as per Section 87, if you go by the time the bidders received their notifications, then there will be differing timelines between all of them and thus an uneven appeal window.
As a diligent procurement official in our hypothetical procuring entity intending to sign a contract with the winning bidder as soon as possible owing to the may be urgency of the goods or services, you may be hard pressed as to whether the standstill period has in fact lapsed as you don’t know the computations of the other bidders.
There have been cases where a contract is signed on the fourteenth day in the morning and a request for review is filed in the afternoon on the same day by an aggrieved bidder.
Now imagine an international tender.
JURISPRUDENCE SURROUNDING COMPUTATION OF THE 14 DAYS
Before we go any further, it should be noted that the computation of time, according to Section 57 of the Interpretation and General Provisions Act is taken to begin a day from the occurrence of the event. Hence in this case it would begin a day from the date when the bidder knew of the breach. Also, note that weekends and public holidays are counted in said computation unless the 14th day falls on either of them, then its taken to be on the next official working day.
Now, that said, postal notification also creates some uncertainty among bidders and procuring entities vis a vis time starts running as it is for example not clear whether the time started running upon receipt of the letters by an aggrieved bidder, upon dispatch by the procuring entity or is it the date on the notification letter.
Date of Receipt of Letter
One would argue that the latter two create a much-needed uniformity in the computation of the 14 days by all involved. However, the letter of the law is that this period cannot begin running until a bidder receives its letter of notification. Look at Decision Number 7 of 2022 Genafrica Asset Managers Ltd vs The Public Service Superannuation Scheme where the Board held;
“In our considered opinion, the date of occurrence of a breach is the date when the Applicant learned of the breach complained of, and not the date of the letter communicating such breach. It would be absurd to determine that the date of occurrence of a breach is the date of the letter communicating such breach even in instances where such a letter is not dispatched to a tenderer.
In such instances, how else would a tenderer approach this Board when they know not, of such breach?”
This position has been echoed in all the cases post-2015 and is the current legal position. I shall not reiterate all those cases here. It should be noted though that the burden of proof for proving notification lies with the procuring entity always.
To show the differing jurisprudence over the years and to allow you to adjudge for yourselves on the effectiveness or lack thereof, below are the two other positions;
Date of dispatch
Computation from date of receipt has not always been the interpretation by the Board. For instance in Decision Number 31 of 2008 Lavington Security Limited vs. Agricultural Finance Corporation the previous Board held;
“The Board has consistently held that the appeal window opens a day after the dispatch of the letter. However, in the event that the Procuring Entity is unable to prove the date of dispatch of the letter, then the Board has held that the appeal window period opens a day after the receipt of the letter of notification by the Applicant.”
In the case of Decision Number 41 of 2015 Backup International Limited vs. Kenya Airports Authority, the Board applied the Kenya Information and Communication (Postal and Courier Services) Regulations 2010 as revised in 2012 which provide that a letter is deemed to have been received by a postal licensee when it is deposited into a posting box or handed over to an employee or agent of a postal service operator authorized to receive it. The Board similarly applied this statute to determine when notification is deemed to have occurred via post in the case of J. Knieriem BV vs. National Transport and Safety Authority.
In Decision Number 2 of 2010 Natural Gas Group vs. Kenya Electricity Generating Company Limited, where an international tenderer in arguing a preliminary objection, stated that the notification letter was sent to the wrong address in China. It raised the issue of the failure of Section 67 (2) of the PPAD Act 2005 to address the issue of dispatch or acknowledgment of notification letters. The aggrieved bidder also questioned the decision of the procuring entity to effect notification via post instead of fax or email which ensured simultaneous notification.
Eventually, the Board held that time started running from the date when the notification letter had been sent in complete ignorance to the technicalities surrounding the notification of the Applicant, an international tenderer.
Date on the Notification Letter
In seeking a more uniform appeal window one would choose to be of the position that the limitation period begins to run from the date as dated by the procuring entity on the letter of notification. This is as seen in the decision of the Board in the case Decision Number 20 of 2004 Lifting Equipment Co Ltd vs. Ministry of Livestock and Fisheries Development where it stated the following arguments in favor of this interpretation of when time starts running;
- That procuring entities have placed upon them the burden of simultaneous notification. Hence all the notifications and any other notices to the bidders ought to read the same date, whether or not received or read by the recipients on the same date;
- That it is virtually impossible for the procuring entity short of calling all tenderers to a physical tender award or meeting to notify all of them of the award simultaneously;
- That it would be absurd to interpret the time period given in the notice for the signing of the contract as commencing on the date when the recipient receives the notice. For then unless all the recipients received collected and read the notice at virtually the same moment, the length of the standstill period would lend itself to differing computations depending on when the particular recipient received or read the notice;
- Lastly that public procurements cannot await the receipt and confirmation of receipt upon reading of the notice by each particular recipient. Thus in adducing to commence the computation of time from when the tenderer received its notification letter would be rendering the public procurement process to be bogged down by procedural trivialities of insubstantial nature.
REGISTERED POST, NOT ORDINARY POST
The time limit provision under the Act or the Regulations do not also specify the mode of communication that may be used for post (for example whether notification should be made through ordinary or registered post).
This problem came out and was clarified by the Board in Decision Number 56 of 2022 Acacia Satlink Limited vs IEBC where the procuring entity was faulted for sending the notification letters out by ordinary post instead of registered post. This created confusion as the Applicant approached the Board after the contract had been signed thus potentially ousting the jurisdiction of the Board to hear the matter. However, the Board held that the procuring entity was at fault for signing the contract before the lapse of fourteen days and hence the same was null and void ab initio. Also, look at Decision Number 114 of 2021 Cobra Security Company Ltd vs NCPB where the Board was of a similar opinion.
In all these cases, the ordinary post mode of notification used by the procuring entity meant that bidders received their notification letters at differing periods and hence each of them, plus the procuring entity were computing different fourteen-day periods.
MY PROPOSED SOLUTIONS
It is easier to find problems than solutions. An analysis of the above however shows that the key issue is the lack of uniformity at the notification of award/regret stage. This is created by the uncertainty surrounding the nature of postal notification which is the preferred mode of notification.
The Act only states that the notification ought to be in writing. Would an email suffice?
Another mode of notification would also be ideal but is frowned upon. This is debriefing. DEBRIEFING OF BIDDERS IS NOT A MODE OF NOTIFICATION. Look at Decision Number 6 of 2022 Lonestar Enterprises vs Parliamentary Joint Services.
This frowned upon method of notification has garnered some popularity among procuring entities in recent years, much to the chagrin of the Board as it goes against Section 64 requiring all communications to be in writing as well as Section 87 requiring notifications of award and regret to be in writing.
I humbly propose a debrief of all bidders in one sitting where they are all handed out their respective notification letters. Any bidder who does not attend the same may have their letter posted via email or if no other alternative is available, then registered post may be resorted to. This kills three birds with one stone in that the notifications are in writing, time starts running upon receipt of letters and uniformity in the computation of said time is assured as it begins from the date of the debrief.
That’s all folks.
Francis Kabuchu, Public Procurement Law Practitioner and Consultant at Sheria Online
