KPA, Omtatah settle case challenging tender on planned Shimoni fish port

Shimoni jetty

Government officials inspect the Shimoni jetty in January. A fish landing bay is set to be built at the site.

Photo credit: Siago Cece | Nation Media Group

The Kenya Ports Authority (KPA) and rights activist Okiya Omtatah have settled a case on the awarding of a tender for a proposed fish port in Shimoni, Kwale County.

KPA had defended the awarding of the Sh2.6 billion tender to Southern Engineering Company Ltd (Seco), saying the process was fair and transparent and followed the right procedures.

Seco was awarded the tender because it was the lowest evaluated bidder that met required technical specifications, said KPA’s head of procurement Daniel Amuyunzu in his affidavit.

“It is instructive that none of the unsuccessful bidders challenged the decision by KPA to award the tender to Seco in accordance with the provisions of the [Public Procurement and Disposal Act],” Mr Amuyunzu said

Mr Amuyunzu filed the affidavit in court to oppose a petition by Mr Omtatah challenging the awarding of the tender to Seco for phase one of the project.

On Monday, Mr Omtatah, KPA and Seco consented to have the petition settled, a plea that Justice John Mativo of the High Court in Mombasa allowed.

This was after Mr Omtatah told the court that he had examined KPA’s affidavit and it answered the questions he had raised, including that of conflict of interest.

“So we have a consent with the counsel for the respondent to have the matter marked as settled, each party to bear its costs,” Mr Omtatah told the court.

Mr Amuyunzu said that the financial evaluation and due diligence carried out by KPA ascertained that Seco had the experience and technical and financial capacity to undertake the works envisaged in the tender.

“I urge the court to take note of the fact that whereas the petition and the application are based on procurement proceedings and alleged violation of procurement laws, no substantial evidence has been supplied to the court by the petitioner,” stated Mr Amuyunzu.

Mr Amuyunzu also said that due to the conservatory orders issued suspending the awarding of the tender, KPA had halted the execution of the contract pending the determination of the petition.

Mr Amuyunzu said that the proposed Shimoni fish port is a matter of public interest and its implementation is a priority for the government as it seeks to enhance food security and create jobs in the blue economy.

He said KPA wants to set up a world-class fish processing hub in Mombasa, Lamu and Kwale counties.

Mr Omtatah had argued in his petition that there was conflict of interest because Seco was the consultant who conducted both the bathymetric and geotechnical surveys on the project, effectively participating in the preparation of bid documents and then applying for the tender and winning.

The activist said that KPA had pre-qualified eight companies to bid for the tender before issuing them with documents.

The tender, Mr Omtatah said, was opened in December last year and on March 24, KPA announced it had awarded it to Seco.

He had argued that Seco was not the lowest evaluated bidder and the award cost of Sh2.6 billion was higher than the Sh1.7 billion budgetary allocation KPA had provided for the project.

He had wanted the court to quash the award to Seco, which was the second respondent in the case.

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