Steam pipes at the geothermal wells in Olkaria KENGEN power stations, Naivasha, Nakuru County on June 2020. FILE PHOTO | NMG The High Court has blocked KenGen from awarding a tender worth close to Sh1 billion to H. Young & Company (East Africa) Ltd, pending the determination of a petition filed by a local company.
Justice Anthony Ndung’u blocked KenGen from signing the deal in a case filed by Lex Oilfield Solutions Ltd.
Lex Oilfield was among the six companies that responded to the tender for the improvement of circulation water system at Olkaria II power station and compaction grouting (EPC), which was advertised through the dailies in March.
The company says in the court documents that whereas its bid was responsive, it was notified that CFAO Kenya was the lowest bidder. Lex Oilfield later decided to enter into a joint venture with CFAO.
The power generating company later picked H. Young & Company as the winning bidder being the lowest bidder quoting Sh909.7 million.
According to Lex Oilfield, the evaluation committee at first did not make a recommendation for the award because there were no funds but instead recommended for reallocation of Sh110 million to facilitate the tender.
Following the decision, Lex Oilfield rushed to the Public Procurement Administrative Review Board (PPARB) seeking the cancellation of the tender.
The case was, however struck out summarily, prompting Lex Oilfield to move to the High Court. The board dismissed the request for review stating that it was not defective and not filed properly.
In the appeal, Lex oilfield faults the Board for allegedly relying on KenGen and CFAO’s preliminary objections and failing to take note of statutory provisions. Lex Oilfield further says it was wrong for the Board to entertain the objections by KenGen yet they were filed outside the required period.
The company says objections should be filed within three days from notification of the award, yet KenGen and CFAO filed the objections five days later.
The company, through Emmanuel Kitusa says the decision is illegal because the board failed to consider relevant considerations but entertained extraneous factors.“In entertaining and allowing the preliminary objections identified above, the PPARB abated the formulation and etching of defeatist jurisprudence into public procurement law, creating a haven for subversion of intent and scheme of the Act,” Mr Kitusa said in an affidavit.The case will be mentioned on November 29 for a judgment date.