French oil marketer Rubis Energy has suffered another setback after the procurement disputes tribunal upheld its decision to nullify a Sh8.7 billion fuel supply deal that it had been awarded by Kenya Power last December.
The nullification was a result of a 17-minute hitch at Kenya Power’s e-procurement system that locked out one of the bidders, Galana Oil Kenya Limited, from the lucrative tender.
The contract would have seen Rubis Energy Kenya Plc supply at least 53 million litres of diesel to 30 off-grid power stations in northern Kenya for two years. After the Public Procurement Administrative Review Board nullified the tender award, Rubis moved to court seeking to reverse the decision. But the bid failed after Justice Jairus Ngaah declined to set aside the board’s decision dated December 22, 2022, and instead ordered fresh review proceedings.
The basis of its case against the nullification was that the chairperson of the board, lawyer Faith Waigwa, was conflicted as she was the managing partner in a firm of advocates whose clients include Kenya Power.
Rubis also complained that the board made orders that were not sought and delivered its decision at 8.11 pm on December 22, 2022, after normal working hours and without any notice to the parties. But Justice Ngaah declined to set aside the board’s decision and instead ordered it to reconsider afresh the request filed by Galana for review of the tender that was to be awarded to Rubis.
He, however, blocked Ms Waigwa from participating in the review proceedings as she was linked to Kenya Power in an advocate-client relationship.
Justice Ngaah said she had failed to declare her interest. He added that evidence that she was a partner in the law firm known as NOW Advocates LLP, whose clients include Kenya Power, was not controverted.
The review was chaired by Hussien Were, Queens Counsel, and the board upheld its ruling to reverse Kenya Power’s decision to award Rubis the tender. The board has also ordered Kenya Power to begin a fresh procurement process. Other members of the board were Mr Mbiu Kimani and Mr Paul Jilani. The tribunal found that Kenya Power conducted the procurement process using a system that was unfair to Galana Oil Kenya Limited.
The bidder was locked out following a technical hitch at Kenya Power’s online system and it was unable to submit its tender. The board found that Kenya Power used an electronic procurement system that locked out Galana Oil Kenya Ltd a few minutes before the deadline for submission of the tender documents.
The deadline for submission of the tender documents was November 23, 2022, at 10.00 am. But Galana was unable to access Kenya Power’s e-procurement system on the said date from 9.42 am to 9.59 am. Kenya Power was unable to explain the technical failure of the electronic procurement system known as the “KPLC SAP tendering portal”.
“The SAP tendering portal was not open and accessible to Galana from 9.42 am to 9.59 am on November 23, 2022, before the tender submission deadline of November 23, 222 at 10.00 am,” the board stated.
Rubis won the tender after defeating four other bidders — East African Gasoil Limited, Oryx Energies Kenya Ltd, Nyumba Itu Energy, and Hass Petroleum. The order now means that the tender is open for competition by even other companies which had not tendered in the initial process.