Activist Okiya Omtatah sues KPA in Shimoni tender award
Activist Okiya Omtatah.
What you need to know:
- Mr Omtatah argues that awarding the tender to Seco is untenable because it creates a conflict of interest.
- He also wants an order issued to quash the award of the tender to Seco, which he has also sued as the second respondent.
Activist Okiya Omtatah has sued Kenya Ports Authority (KPA), challenging the awarding of a Sh2.6 billion tender for the first phase of construction of Shimoni Fish Port in Kwale County to Southern Engineering Company Ltd (Seco).
Mr Omtatah alleges conflict of interest because Seco were the consultants who conducted both bathymetric and geotechnical surveys of the project, effectively participating in preparation of bid documents and then bidding and winning in the tender.
The activist says KPA pre-qualified eight companies to bid for the construction of the port before issuing them with documents for the tender.
Mr Omtatah says the tender was opened last December, and on March 24, KPA announced it had awarded it to Seco.
Mr Omtatah said Seco was not the lowest evaluated bidder and the award cost Sh2.6 billion — more than the Sh1.7 billion KPA had budgeted for the project.
Quash the award
In his petition filed at the High Court in Mombasa, Mr Omtatah argues that awarding the tender to Seco is untenable because it creates a conflict of interest as the company is both consultant and contractor of the same project.
Mr Omtatah is seeking a declaration that Seco was not eligible to participate in Tender No KPA/050/2021-2022/ID for the construction of the Shimoni Fish Port, Kwale County Phase 1.
He also wants an order issued to quash the award of the tender to Seco, which he has also sued as the second respondent.
Mr Omtatah further argues that the decision to allow a consultant for the project to tender for its construction is discriminatory and also militates against the economic and social rights of other bidders.
“The petitioner reasonably suspects that Seco has been favourably treated contrary to Article 73 of the Constitution to achieve improper motives or advance corrupt practices,” Mr Omtatah argues.
Conflict of interest
He also says that, the tender had no provision for affirmative action under Access to Government Procurement Opportunities (Agpo).
The activist adds that Agpo seeks to empower women, the youth and persons with disability by giving them 30 per cent of all procurement initiatives without competition from established firms.
The petitioner says that collusion, conflict of interest and manipulation over the procurement undermined fair competition and value for money contrary to the Constitution.
“The decision to award the tender to Seco violated Section 66 of the Public Procurement and Asset Disposal Act 2015 that prohibits corrupt, coercive, obstructive, collusive or fraudulent practice,” Mr Omtatah says in his suit papers.
He adds that the respondents violated the Constitution, which provides that public money shall be used in a prudent and responsible manner.
