The National Irrigation Board has once again been ordered to evaluate and award a Sh200 billion tender for the High Grand Falls Dam in Kitui and Tharaka-Nithi counties to a British consortium than won the contract.
For a record fifth time, the Public Procurement Administrative Review Board (PPARB) heard and determined the tendering dispute in favour of London-based GBM Engineering and ordered the NIB to conclude the procurement process in 14 days.
In a ruling delivered on Thursday evening, the board, chaired by lawyer Faith Waigwa, set aside an earlier decision by NIB rejecting the British firm’s bid and declared it null and void.
The NIB lost the appeal to cancel the tender and was ordered to re-evaluate specific clauses of both the technical and financial proposals, which formed the basis of the suit, as the tender validity was extended by 45 days.
“That the procuring entity is directed to re-evaluate the technical proposal on the Clause 2.7.1 (4) of the Request for Proposal document and the financial proposal within 14 days, having regard to the tribunal findings,” the ruling read.
In the verdict, PPARB expressed regrets that NIB seemed hell-bent to determine the tendering process in a particular way and award the contract to a firm of their choice instead of giving all bidders an equal and fair chance.
The ruling, which also slapped NIB with an order to pay Sh300,000 as costs of the suit, appeared to rebuke the State agency over claims of alleged mishandling of the tendering process by the British firm.
“The procuring entity is ordered to pay Sh300,000 to the applicant as costs of the suit,” Ms Kagwa said in her ruling.
The latest ruling is significant because it closes the long-standing argument by NIB that accused GBM Engineering of not showing proof of ownership in their tender documents.
In a letter dated February 14 and addressed to Mr Michael Short, GBM Engineering's chief executive officer, NIB general manager Gitonga Mugambi dismissed the whole tender, saying the British firm's bid had failed in the fresh technical evaluation.
“Your tender failed in the technical evaluation stage because you didn’t provide proof of ownership or capacity to hire — in form of logbooks and signed lease agreements," the letter read.
Interestingly, Mr Mugambi referred to the same issues that formed the basis of the tender dispute, and which on four occasions had been heard and determined by the PPARB, prompting the latest appeal.
However, in Thursday’s ruling, PPARB said it had established that P.I. Makina, manufacturers of heavy equipment in Europe, are part of the consortium bidding for the contract.
Ms Waigwa extended the tender validity period by 45 days to enable NIB evaluate the bidder’s financial proposal and its capacity to undertake the project under the fund, design, build, own, operate and transfer model.
The ruling is a big win for the British consortium, which wanted NIB officials held to account for failing to comply with the orders of the procurement review board and for contravening various tendering laws.
The Sh300,000 in costs awarded to the consortium brings to Sh550,000 the money NIB has to pay the bidder, some as fines for disobeying the PPARB orders.