Constitutional Challenges in Public Procurement: Recent Supreme Court Developments
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The Supreme Court's recent ruling in Kericho County Government v. Rift Valley Construction Ltd. has reshaped public procurement law in Kenya, establishing new precedents for constitutional review of tender processes.
The judgment reinforces Article 227 of the Constitution, emphasizing that procurement decisions must demonstrate fairness, equity, transparency, competitiveness, and cost-effectiveness. This ruling particularly impacts county governments, requiring enhanced documentation of evaluation criteria and decision-making processes.
Our analysis identifies three critical implications for public entities:
- Enhanced Due Process Requirements:
Procurement committees must now provide detailed justifications for evaluation scores, particularly when rejecting technically compliant bids. - Expanded Standing for Constitutional Challenges:
The court has broadened locus standi, allowing taxpayers to challenge procurement decisions that potentially waste public resources. - Remedial Powers:
Courts can now order re-tendering processes rather than just awarding damages, providing more effective relief for aggrieved parties.
Private sector entities participating in public procurement should strengthen their bid documentation and consider constitutional law arguments in procurement disputes. County governments must urgently review their procurement procedures to ensure constitutional compliance.
Our Constitutional & Administrative Law team has successfully represented clients in landmark procurement cases at all judicial levels.
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