State barred from enforcing tender rules

The High Court has barred a government agency from enforcing new regulations which private security firms must meet before they can apply for public tenders.

Justice Antony Mrima issued a conservatory order restraining the Private Security Regulatory Authority (PSRA) from issuing letters purporting to be certificates of registration to private security firms, which qualify to offer services to government establishments and parastatals.

“A conservatory order be and is hereby issued restraining PSRA whether acting directly or through third parties, agents and or proxies from issuing letters purporting to be certificates of registration to private security companies pending the hearing and determination of the case filed before this court,” ruled Justice Mrima.

Requirements unfair

Justice Mrima gave the order following a petition filed by Philemon Kirwa Tum and Bibby Line Limited challenging the directives issued by PSRA.

Conditions imposed by PSRA are that security firms provide bank statements, personal data (including security training for its personnel) and salary scales for its staff.

The court heard those requirements do not sit well with the security firms.

 Tum and Bibby are urging the court to issue a declaration that “failure of PSRA to issue a Certificate of Registration to successful applicants is unconstitutional.”

The judge heard that PSRA has infringed the right to fair administrative action as provided for under Article 47 of the Constitution thereby entrenching favoritism.

The two petitioners are urging the court to intervene since rights of private security firms pronounced under Articles 10, 27, 28, 29, 41, 47,227 and 236 have been blatantly violated by the government agency requirements.

PSRA issued a raft of requirements to be met by private security companies before applying for government tenders.

Discriminatory process

The petitioners decried the process of obtaining registration from the PSRA saying it is devoid of fairness, equitability, transparency, competitiveness and is discriminatory contrary to Articles 47 and 227 which calls for transparency and fair administrative action.

“The documents currently being issued by the PSRA purporting to be certificates of registration are discretionary and lack a legal basis, thus subjecting persons rendering private security services to unjust discrimination,” Tum avers in his affidavit supporting the petition.

The petitioner further states that private security service providers have been denied an equal opportunity to be fairly evaluated in public procurement process.

 Tum says the petitioners have thus been denied a commercial opportunity to secure an award of tenders.

Justice Mrima heard that PSRA has been issuing letters purporting to be certificates of registration to private security companies.

The judge was thus urged to stay (suspend) the reliance of those irregular letters purporting to be certificates of registration pending the hearing and determination of the case.