High Court nullifies key 2020 procurement rules

The High Court has partially nullified key provisions of the Public Procurement and Asset Disposal Regulations, 2020.

This is after the court found that several rules governing procurement disputes and administrative procedures imposed unconstitutional barriers to access to justice.

In a judgment delivered by Justice Bahati Mwamuye, the court held that parts of the regulations created unlawful restrictions on the right to access justice.

These included strict procedural demands and requirements, which the judge said, were not grounded in law.

The petition by the Law Society of Kenya (LSK) argued that the regulations imposed restrictive and costly conditions on parties seeking to challenge procurement outcomes.

At the centre of the case were rules governing disputes before the Public Procurement Administrative Review Board (PPARB).

The court found that some of these rules made it unnecessarily difficult for bidders to seek review.

The judge specifically cited Regulation 203 and Regulation 218. These provisions relate to how procurement disputes are filed and processed. 

The court found they imposed restrictive procedural burdens that were not justified.

It held that such rules “impede access to justice” and cannot stand if they make it difficult for parties to ventilate their grievances.

The court also struck down part of Regulation 10(2). This provision required the submission of three curriculum vitae for each nomination slot in procurement-related appointments.

Justice Mwamuye found this requirement had no basis in the law.

“Regulation 10, sub-regulation 2 of the impugned regulations is inconsistent with Section 29 subsection 2 of the Public Procurement and Asset Disposal Act (PPADA), 2015, to the extent that it requires the submission of three curriculum vitae for each slot and is therefore null and void to that extent,” the judge observed.

He stressed that delegated legislation must stay within the limits of the parent statute, warning that regulations cannot introduce new obligations not approved by Parliament.

Beyond procedural barriers, the court also addressed financial obstacles imposed under the parent statute.

It declared deposit requirements in Section 167(2) and Section 175(2) of the PPADA unconstitutional.

These provisions required bidders to pay deposits and security fees before filing procurement disputes, which the court found to be significant.

The court further found that some of the disputed rules violated constitutional rights. These include access to justice and equality.

It noted that overly complex procedures can lock out smaller players.

“The said deposit requirements also violate Article 27 of the Constitution because they have a disproportionate adverse impact on economically disadvantaged groups, including women, youth, and persons with disabilities, and are not a reasonable and justifiable limitation under Article 24 of the Constitution,” the judge said.

However, the court did not strike down the entire regulatory framework. It upheld Regulation 204, finding it consistent with the Advocates Act.

Regulation 204 deals with the role of advocates in procurement dispute proceedings, particularly in representing parties before review bodies and in related processes.

The issue before the court was whether this provision conflicted with the Advocates Act, which governs who is qualified to practise law and represent clients.

The judge also affirmed that the process of making the regulations met public participation requirements.

In the end, the court issued targeted declarations.

Only the offending provisions were nullified, with the rest of the framework remaining in place.

The ruling is expected to reshape how procurement disputes are handled.