The Effectiveness of the Public Procurement Administrative Review Board in Adjudicating Public Procurement Disputes in Kenya

Abstract

The existence of a review body in public procurement provides an important platform for bidders to have recourse against wrongful decisions of procuring entities. It generally gives the bidders an opportunity to enforce compliance with the law and also promotes the function of correcting legal violations in procurement. However, the efficacy of the review process is dependent on whether the body is independent, impartial, cost-effective, accessible and anchored in a firm legal framework. Since its establishment under the Public Procurement and Disposal Act, 2005, PPARB has contributed positively in the development of case law on public procurement and exposed the misdeeds of public officers to public scrutiny. Nonetheless, in carrying out its mandate, PPARB has faced several challenges that have marred its effectiveness in carrying out its mandate provided under section 93 of the Act. These challenges include lack of institutional and financial independence, lack of impartiality, and inadequacies in the legal and regulatory framework. For instance, the Act has not been aligned with the Constitution of Kenya, 2010 to reflect on the public procurement principles provided under Article 227. In addition, the process of appointment and removal of members of PPARB is premised under the Public Procurement and Disposal Regulations, 2006, and not the Act. The Minister has powers to make the Regulations and may amend or repeal them at will to tamper with the composition of the Board. In light of this, this study appraises the effectiveness of PPARB in adjudicating public procurement disputes in Kenya. It seeks to unpack the extent to which PPARB exercises its mandate in ensuring that procuring entities comply with the Act and the Regulations made there under.