Donor organisation Trademark East Africa (TMA) has claimed in court that Swiss firm Webb Fontaine misinterpreted the law in challenging its award of a Sh1.2 billion tender for the supply of a tax integration system to another firm.
TMA says Webb Fontaine relied on guidelines that were not part of the bidding documents when it filed an appeal outside the seven-day window provided for after a winner is declared. The Public Procurement Administrative and Review Board (PPARB) dismissed Webb Fontaine’s appeal against TMA’s award of the lucrative deal on grounds that it had been filed after the seven days had lapsed.
Webb Fontaine wants the High Court to compel the board to hear an appeal it filed against TMA’s award of the lucrative tender to French firm Bull SAS. Webb Fontaine has sued TMA, the Kenya Revenue Authority and Bull SAS. TMA is funding the installation of the Integrated Customs Management System (iCMS) in a deal with the Kenyan government.
The iCMS is to replace the Simba system which cannot be integrated with the software being used by the rest of the East African Community. “Webb Fontaine exercised the option to contest the decision through TMA procurement guidelines. The TMA procurement guidelines were not included in the bid documents.
The evaluation of the proposals was carried out in compliance with the requirements as set out in the bid documents,” TMA says. Webb Fontaine had lodged a complaint over the evaluation as provided for in TMA’s procurement guidelines, and expected the seven-day window to be extended until its grievances had been addressed.
But TMA, KRA and Bull SAS all held that that the appeal before the PPARB was filed out of time, an argument the tribunal upheld. Public procurement laws provide that the seven days start counting after one of the bidders is declared the winning candidate. Webb Fontaine in court documents says it was unfair to dismiss its appeal on a technicality.
It adds that bidders were not given score sheets from the evaluation stage. “The review board in declining to consider the request for review condemned Webb Fontaine unheard in breach of the tenets of natural justice,” says Webb Fontaine.
Source: Business Daily

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