The hidden danger of waiting for the final decision

The hidden danger of waiting for the final decision

Most businesses assume the legal clock starts when the final decision is made.

In public procurement, that assumption can destroy an otherwise serious challenge.

A recent Court of Appeal decision makes the point plainly. A bidder raised concerns about what it believed was an irregularity at the tender opening stage. But instead of moving at once, it waited until after the notification of award and then filed a request for review. The Court held that this was too late. In its view, the bidder already knew enough, early enough, to act within the statutory 14 days. By the time the challenge was filed, the Review Board had no jurisdiction.

Why this case matters

This case matters because it deals with a mistake many businesses make.

They spot something suspicious in the process, keep watching, then decide to challenge once the final outcome goes against them.

That may feel commercially sensible. Legally, it can be fatal.

The Court’s point was simple. If you already know of the alleged breach, and the law gives you a right to challenge it, waiting for the final award may mean you miss the real deadline.

Questions worth asking

• Did the problem arise before the award?
• Did you know, or ought you to have known, about it then?
• Have you treated the final decision as the trigger when the law may treat the earlier breach as the trigger?

What happened here

The dispute arose from the tender opening stage.

The appellant said that during the public opening, the successful bidder’s tender security was read out as Kshs. 3,000,000 instead of the required Kshs. 6,900,000. It then received communication shortly afterwards stating that the valid bank guarantee was actually Kshs. 6,900,000. The bidder did not seek review then. It waited until after the notification of award dated 18 November 2025 and filed its request for review on 1 December 2025.

The Court of Appeal agreed with the High Court that this was out of time. It held that the bidder was already aware of the alleged breach by 6 November 2025 and could have moved within 14 days from then.

The legal point many businesses miss

The procurement review framework does not only deal with complaints after award.

It also allows a challenge where the alleged breach occurs earlier in the procurement process. The Court held that an aggrieved tenderer need not wait for the bid outcome once it is aware of a breach that may prejudice its interests. It also rejected the argument that section 78(7), which bars disqualification at the tender opening stage, prevented a bidder from seeking review over an alleged breach occurring at that stage.

Short lexicon

• Tenderer: a party that submits a bid.
• Procuring entity: the public body buying the goods or services.
• Request for review: the formal challenge filed before the Public Procurement Administrative Review Board.
• Jurisdiction: the legal power of a tribunal or court to hear a matter.
• Tender security / bid bond: the security submitted with a tender to show seriousness and compliance.

Why waiting feels natural, but is dangerous

From a business perspective, waiting can feel reasonable.

You may ask:

• Why challenge now if the issue may not affect the result?
• Why spend money before I even know whether I have lost?
• Why not wait for the award letter and then decide?

Those instincts are understandable.

But procurement law is built on short timelines and strict procedural discipline. The Court stressed that procurement proceedings are time-bound and that parties, the Review Board, and the courts do not have the luxury of delay.

Practical lessons for bidders and suppliers

If you bid for public tenders, this case should change how you handle risk.

A few practical rules

• Treat every irregularity as a possible trigger date.
• Record exactly when the issue first became known.
• Preserve emails, SMS messages, opening notes, and clarifications.
• Get legal advice early, not after the award.
• Do not assume you are safer waiting for the final result.

Questions to ask internally

• When did we first become aware of the issue?
• What statutory timeline applies?
• Is this something that should be challenged now rather than later?
• Are we preserving the evidence properly?

Final thought

This decision is a warning to any business involved in public procurement.

You do not always lose because your case is weak.

Sometimes you lose because the law expected you to act before the final decision arrived.

Call to action

If your business is bidding for public work, facing a procurement dispute, or trying to assess whether a review window is still open, get advice early.

Read more on our Commercial/Civil Disputes Law practice page: https://law.hermantambolaw.com/civil-litigation