Court suspends Sh26b fishing project after Omtatah petition

Officials during an inspection tour of Shimoni fishing port in Kwale County on Wednesday, September 11, 2019. [Maarufu Mohamed, Standard]

The court has suspended a tender for the building of the Sh2.6 billion Shimoni Fish Port in Kwale County to Southern Engineering Company Limited (SECO). 

Activist Okiya Omtatah moved to court seeking to have the tender suspended pending hearing and determination of his petition.

Omtatah applied to have the court suspend any contracts signed between the Kenya Ports Authority (KPA) and SECO for the proposed building of the fish port.

He argues that the Sh2.6 billion tender issued by KPA to SECO was above the set budgetary allocation by Sh9 million.

Justice Olga Sewe directed that the status quo be maintained to a conservatory order.

“It is hereby ordered that a status quo be maintained to a conservatory order suspending the award by KPA to SECO Limited of tender number KPA/050/2021-22/ID for the proposed Construction of Shimoni Fish Port pending further orders on April 27, 2022,” said Justice Sewe.

Omtatah said that on March 24, KPA proceeded to issue the tender to SECO despite pre-qualifying eight other bidders who were below the quoted Sh1.7 billion budget.

The activist said that KPA overlooked Jomaki that offered to undertake the tender at a cost of Sh1.23 billion, Universal Company which was asking for Sh1.27 billion and Harbour City which asked for Sh1.5 billion.

Upperland Marine asked for Sh1.96 billion, Weston quoted Sh2.2 billion and SKL asked for Sh2.3 billion, whereas SECO asked for Sh2.6 billion, the second-highest after CRBC whose quotations was Sh4.6 billion.

“SECO was not the lowest evaluated bidder. The company was the second-highest bidder out of eight companies. The award cost at Sh2.6 billion is much higher than the Sh1.7 billion budgetary allocation KPA had provided for the construction of the project,” said Omtatah in his petition.

Omtatah said that the collusion, conflict of interest and manipulation over the procurement undermines fair competition and value for money.

He also faulted the award to SECO for failing to empower women, the youth and persons with a disability.

He said that the tender was unconstitutional for failing to provide for affirmative action under the Access to Government Procurement Opportunities (AGPO).

Omtatah said that SECO are conflicted since they were the consultants who conducted both the bathymetric and the geo-technical surveys for the project.

“Effectively, they participated in the preparation of the bid documents, and then participated in and won the tender,” said Omtatah. “Awarding the tender to SECO is untenable under both the Constitution and Public Procurement and Asset Disposal Act.”

Further directions will be given on April 27 2022.