Activist Omtatah argues contract was awarded without public participation
A freight company has suffered a blow in its quest to operate a new grain bulk terminal at the Mombasa port after the High Court in Malindi suspended the tender awarded by Kenya Ports Authority.
Justice Reuben Nyakundi issued the orders after activist Okiya Omtatah challenged KPA’s decision to award the tender to Portside Freight Terminals.
“A temporary conservatory order is issued staying the implementation, procurement and award of a license by KPA to Portside Freight Terminals Ltd for the development of a second bulk grain handling facility.”
Omtatah challenged the tender on grounds there was no public participation as KPA Board of Directors, without any authority, reviewed and approved the grant of license to Portside Freight Terminals.
“Unless the court grants a conservatory order there is a likelihood the respondents (KPA and CS Treasury) shall proceed to enter into a formal contract with the firm party and permit them a license pursuant to a flawed procurement process,” he said.
The petitioner further argued that the KPA board of directors, acted ultra vires, without authority and in violation of the law and procedure, purported to review and approve the grant of way leave and license to operate a second bulk grain handling facility at the port of Mombasa to Portside Freight Terminals Limited.
He said KPA used the Specially Permitted Procurement Procedure under the Public Procurement and Asset Disposal Act, to single source and award the licence to the firm.
“It is clear KPA and the CS Treasury Ukur Yatani have employed the use of Specially Permitted Procurement procedure to avoid competition of bidder and is being applied in favour of Portside Freight Terminals Limited,” Omtatah said.
In his court papers, the activist says pursuant to the public procurement laws KPA failed to invite bidders or tenderers to submit their applications for consideration for the development of the second bulk grain handling facility
“That the procurement process employed by the respondents (KPA and CS Treasury) does not meet the minimum threshold established under Article 227 of the Constitution that requires that when a State organ or any other public entity contract goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective,” he argues.
Further, the activist says conditions for the use of Specially permitted Procurement Procedure while awarding the tender do not exist.
The dispute over the recruitment of a second bulk grain handler at the Mombasa Port saw Yatani clash with MPs a month ago.
National Assembly Finance Committee chaired by Homa Bay Woman Rep Gladys Wanga argued bulk grain handlers can only be recruited vis competitive bidding.
Documents filed by Omtatah indicate on June 28, Yatani approved the use of specially permitted procurement procedure to award the contract.
Other interested parties in the case were Kilindini Terminals, Mombasa Grain Terminal, Kapa Oil Refinery, Africa Ports and terminals, Kipevu Inland Container EPZ and Dock workers union.