The activist says that the KPA pre-qualified eight companies to bid for the construction of the Shimoni Fish port phase one before issuing them with documents for the tender.
The tender, Mr Omtatah says, was opened last December and on March 24, the KPA announced it awarded it to Seco.
The petitioner says collusion, conflict of interest and manipulation over the procurement undermined fair competition and value for money, contrary to the Constitution.
An activist has sued the Kenya Ports Authority (KPA) challenging its award of a multi-million tender for the proposed construction of Shimoni Fish port in Kwale to Southern Engineering Company Ltd (Seco).
Okiya Omtatah argues that there is a conflict of interest since Seco was the consultant who conducted both bathymetric and geotechnical surveys of the project, effectively participating in the preparation of bid documents and then bidding in the tender and won.
The activist says that the KPA pre-qualified eight companies to bid for the construction of the Shimoni Fish port phase one before issuing them with documents for the tender.
The tender, Mr Omtatah says, was opened last December and on March 24, the KPA announced it awarded it to Seco.
According to the activist, Seco was not the lowest evaluated bidder and the award cost Sh2.6 billion, which is higher than the Sh1.7 billion budgetary allocation the KPA had set aside for the project.
In his petition at the High Court in Mombasa, Mr Omtatah argues that awarding the tender to Seco is untenable because it creates a conflict of interest as the firm is the consultant and contractor of the same project.
The activist wants a declaration that being the consultant who participated in the preparation of the tender documents, Seco was conflicted and therefore not eligible to participate in Tender No KPA/050/2021-2022/ID for the proposed Shimoni Fish port.
He also wants an order issued quashing the award by the KPA of the tender to Seco, which he has also sued as the second respondent.
Mr Omtatah further argues that the decision to allow a consultant for the project to tender for its construction is discriminative and also militates against the economic and social rights of other bidders.
“The petitioner reasonably suspects that Seco has been favourable treated contrary to Article 73 of the Constitution to achieve improper motives or advance corrupt practices,” he argues.
Mr Omtatah also says the tender did not provide for affirmative action under Access to Government Procurement Opportunities (AGPO).
He adds that AGPO seeks to empower women, youth and persons with disability through public procurement business opportunities by giving them 30 percent of all procurement initiatives without competition from established firms.
The petitioner says collusion, conflict of interest and manipulation over the procurement undermined fair competition and value for money, contrary to the Constitution.
“The decision to award the tender to Seco violated Section 66 of the Public Procurement and Asset Disposal Act 2015 prohibits the corrupt, coercive, obstructive, collusive or fraudulent practice,” says Mr Omtatah.
He says the respondents violated the constitution which provides that public money shall be used prudently and responsibly.
The petitioner is also seeking a declaration that the tender be declared null and void because it did not have a provision for 30 percent affirmative action under the AGPO programme.
