The High Court has temporarily restrained the Kenya Ports Authority from hiring a cleaning service provider for zones one, two and three in the port of Mombasa.
This, the court said, follows the public opening of tenders that took place on June 17 and in which 13 companies participated.
The order followed a petition from Blue Sea Services Ltd, which has sued the KPA in relation to a cleaning and environmental hygiene services tender over allegations that it was issued in a secretive and discriminatory manner.
Justice Njoki Mwangi, who issued the order pending the hearing and determination of the firm’s application, noted that the company complained that it had been shut out after rendering cleaning services to the KPA until May.
“This court notes that procurement processes are time-bound and once evaluation of the technical and financial bids are done, the procuring entity (KPA) will move to the next stage of the award and acceptance of the tender before signing of a contract to the successful bidder,” said Justice Mwangi.
She added that if the court waits for the processes to proceed to completion as the hearing of the case continues, the petition and the application may be rendered nugatory.
Blue Sea Services’ lawyer Gikandi Ngibuini claimed that only a few selected bidders were allowed to take part in the tendering process and that the tender was not floated or uploaded on any public portal by the KPA.
“The respondent being a public organ has acted in an unlawful manner and in total disregard to elementary legal requirements as per the Public Procurement and Assets Disposal Act (PPADA) with regard to advertisement and award of tenders for the benefit of the public,” the company says in court documents.
Blue Sea Services Ltd wants the court to declare that the public opening for the tender for cleaning and environmental services of June 17 for zones two and three and the new container terminal in which the three companies (named as interested parties in the case) participated be declared null and void.
The company says that in 2019 it won a tender for cleaning and landscaping services for zone three until May, when the contract was terminated.
It says it is still providing the services on a holding basis as it awaits the KPA to procure a new provider as required by the PPADA.
It argues that considering that it is currently on site, it has the right both under the law and as provided in the doctrine of legitimate expectation that the KPA would at least invite it to participate in the bidding process following the termination of its contract.
The company argues that having not floated the tender in public as required by the Constitution and not complying with the PPADA, the invitation for the 13 companies to bid for the tender was secretive and clandestine.
“Moreover, by handpicking of a few selected bidders, the respondent acted in a discriminatory manner which is outlawed by Article 27 of the Constitution,” the company says.
