The tendering controversy surrounding the Sh200 billion multi-purpose High Grand Falls dam along River Tana is still raging after the National Irrigation Board (NIB) disregarded the ruling aimed at settling the dispute for the third time.
The irrigation agency, which is the procuring entity, is on the spot after disobeying orders by the Public Procurement Administrative Review Board (PPARB) to correct mistakes it did, prompting a British consortium which won the tender to seek redress.
London-based GBM Engineering Consortium was among seven pre-qualified international construction firms — five of them Chinese — which participated in the bidding process under the fund, design, build, own, operate and transfer model.
In the latest ruling delivered on November 13, NIB was directed to reinstate the applicant's Request for Proposal, which it had disqualified, back into the evaluation process, after it was found to have flouted procurement laws.
"The procuring entity is directed to reinstate the applicant's tender back into the evaluation process and re-evaluate it at the technical stage, in specific, correcting the mistakes established by review board and complete the procurement process within 21 days," read the ruling.
While cancelling the tender, NIB general manager Gitonga Mugambi said the firms did not show proof of ownership of machinery or capacity to hire equipment required for the works.
However, GBM Consortium appealed the decision, protesting that NIB used false reasons to cancel their bid, yet they are globally renowned manufacturers of heavy equipments and that they had included the details of the machinery at their disposal in the tender documents.
The 21-day window ended on December 4 without NIB complying with the fresh orders, prompting the bidder to protest the apparent maltreatment and flouting of procurement laws.
Through Nairobi lawyer Wilfred Nyamu, GBM Engineering now wants NIB officials held to account for failing to comply with the orders of the procurement review board and for contravening various tendering laws with wanton impunity.
Mr Nyamu said NIB used illogical and unreasonable basis to disqualify the British firm and that claims that his client did not provide bid security was untrue because the bond was supposed to be submitted during financial evaluation stage.
"The tendering circus on this project is embarrassing the country and painting the government as corrupt in the eyes of foreign investors because NIB has been proved wrong and hell-bent on serving vested interest in the entire process," the lawyer said.
According to suit papers seen by Sunday Nation, the British consortium is accusing NIB general manager of being "illogical, irrational and unfair to them" by cancelling the tender despite having twice been declared the bid winners by PPARB.
The dispute which has been playing at the PPARB since May now threatens to delay Kenya's ambitious plans to host one of the largest multipurpose dams in Africa.
In a sworn affidavit, Mr Michael Short, the managing director of GBM and ERG consortium, narrates how the long drawn dispute began on October 19 last year after they responded to a request for proposals which NIB advertised in the local dailies inviting the seven pre-qualified bidders for a mandatory site visit slated for November 8.
"Mr David Kamotho, the firm's local representative, was the only party who attended the mandatory site visit with NIB staff members led by Engineer Loise," Mr Short says in the affidavit.
This prompted NIB to disqualify the six firms from the tendering process and begin technical evaluation of the sole bid by GBM, with assurances that the British firm will be invited within a period of 21 to 30 days to discuss the financial component of the tender.
Mr Short says GBM submitted its tender documents on November 30 last year and they were opened the same day. Having been knocked out in the earlier stage, the other six firms never raised any objections, therefore legally making GBM the winner of the tendering process.
However, the NIB went silent for six months until May 29 when they wrote to GBM notifying of its decision to cancel the tender.