Pix-One of the cranes being constructed at Cormaco dry-dock in Mombasa and not in Ireland as the tender document had specified.
By PATRICK MAYOYO
The row over the award of a Sh2.5 billion cranes tender at Mombasa port that started in 2013 has taken a new twist following a protracted legal battle.
The High Court sitting in Malindi on June 14 this year, restrained the company that was awarded the tender, Liebherr Container Cranes from delivering them to Kenya Ports Authority (KPA).
The restraining orders issued by Justice S.J.Chitembe also fixed the hearing date for the controversial cranes tender to be on July 26, 2016.
The orders said in part: “That in the meantime, the first interested party be and is hereby restrained from delivering the cranes to the 2nd respondent if the cranes have not been delivered.”
The row over the award of the Sh2.5 billion cranes tender at Mombasa port has been the subject of a legal battle since 2013.
The firm that has sued KPA, Federal Suppliers Agencies Ltd, that represents Kocks Krane GMBH of Germany that won the tender, has also written to the Ethics and Anti-Corruption Commission (EACC).
In a letter dated May 31, 2016, signed by, Mr Maur Bwanamaka, the firm want the anti-corruption agency, to update them on the progress of their investigations into the matter after lodging a complaint in December 2013.
“We have written several letters in request of the same, one dated December 20, 2014 and the second letter April 14, 2015. To date we have not received any responses other than being summoned to record statements at your Mombasa bureau,” the letter addressed to EACC chairman Philip Kinisu says in part.
The company says that it also filed a report providing more evidence on the matter following a court order, in spite of the Commission having applied to be struck out from the petition.
The tender erupted in 2013 and then headed to the public procurement board which stopped the tender.
Documents related to the tender indicated that the ports authority awarded the tender to Liebherr Container Cranes but the Public Procurement Administration Review Board stopped it from signing the contract pending investigations over allegations the procurement regulations were flouted.
In a letter of September 12, the board said it was handling an appeal filed by Kocks Krane GMBH of Germany against the award.
The letter addressed to the then port managing director Gichiri Ndua said: “You are hereby notified that on September 12, 2013, a request for review was filed in respect of the above mentioned tender.”
It said the contract should not be signed until the appeal is finalised.
In its application, Kocks Krane GMBH said the port did not process the bid in accordance with the dictates of the tender document that would have guaranteed fairness of competition among the bidders.
The company also claimed that the tender was not evaluated in accordance with the criterion given in the document.
It added that KPA erred by recommending that Liebherr Container Cranes, through their local agent Alatir Ltd, be awarded the tender without meeting some mandatory requirements.
The company also argued that Alatir Ltd had furnished KPA with information concerning the constitution of the company directors, contrary to the contents of the Business Questionnaire Form, which is a standard form in the bid documents.
Its also contended that the listed directors of Alatir Ltd were different from those at the Registrar of Companies.
“We hereby request that the Board nullifies the award of the tender and order the PE to award the tender to us M/s Knocks Kocks Gmbh,” the company says in its application.
The Public Procurement Administration Review Board later cleared KPA to award the tender but, Federal Suppliers Agencies Ltd went to the High Court to challenge the decision of the board and were given orders stopping the signing of the contract.
However, the High Court later vacated the orders on grounds that the application was filed on time but filing fees was payed out of time. Federal Suppliers Agencies Ltd returned to court to contest the decision.
The petitioner has also contested why the cranes are being constructed in Kenya while tender documents indicated that they were to be built in Ireland.
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