Why State tender committee job is a risky undertaking

The renewed war against corruption has made membership to a tender committee in a government agency one of the riskiest public service job.

In the last three years, at least 100 officers who sat in the committees tasked with awarding contracts in various State institutions in national and county governments have been prosecuted for corruption.

Tender committees typically are made of eight members.

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Given the committee’s crucial role in evaluation and award of multi billion tenders, its members are almost inevitably the first casualties in a graft purge as the cases currently in court demonstrate. 

It has made the once lucrative job a nightmare for many civil servants who are now shying away from it.

From the Sh468 million National Youth Service (NYS) scandals to the recent Sh63 billion Arror and Kimwarer dams’ scam, all tender committee members have been swept by the corruption purge.

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After the first NYS scandal in which the tender committee members were accused of participating in looting more than Sh790 million, it emerged that no one at NYS wanted to sit in the committee again.

When the second NYS scandal broke, several junior staffers who earned between Sh14,000 to Sh27,000 a month, and who the prosecution claimed had no experience in procurement laws, found themselves facing corruption charges alongside their bosses.

Some of them spent two months in prison after failing to raise Sh1million cash bail until Lady Justice Hedwig Ong’udi sympathised with their woes and reduced the cash bail to Sh250,000.

“Having considered their financial position drawn from their pay slips and letters of appointments, I find that it is impossible to expect them to raise the bail terms set out earlier. Sticking to those terms would amount to denying them their right to bail,” ruled Ong’udi.

Her ruling, however, has not come to the aid of those caught in current graft cases with courts demanding that they comply with stringent bail conditions.

For instance, those who sat in the tender committee in the Kerio Valley Development Authority (KVDA) were unsuccessful in having their bail terms reduced.

High Court judge John Onyiego refused to reduce the Sh2 million cash bail, ruling that inability to pay based on a person’s low employment status and meagre salary should not be an automatic ground to interfere with bail terms set by a trial magistrate.

“If all poor people who commit serious crimes were to be released on what in their opinion is affordable terms, it will amount to a travesty of justice against the victims of their crimes,” Justice Onyiego ruled.

The KVDA tender committee comprised of Patrick Kiptoo, Elizabeth Kebenei, Esther Jepchichir, Moses Kipchumba, Nelson Korir, Isaac Kiiru, Patrick Kipsang, Fredrick Towett, Jotham Rutto, Chatity Muui had been granted Sh2 million cash bail, but they were unable to raise and filed for a review.

Pure misfortune

Justice Onyiego had sympathised with their predicament, noting that they will ultimately be interdicted and put on half pay despite their average salary of Sh66,000 per month, however he ruled that alone shouldn’t be a reason to review their terms.

Membership to a tender committee is akin to being pressed between a rock and a hard place. If they decline to award a tender to a well connected company, they face the wrath of tender cartels.

If they approve it and questions are raised, the Director of Public Prosecution (DPP) does not hesitate to charge them with flouting procurement laws.

A lawyer representing Kiambu County tender committee members who were charged alongside governor Ferdinand Waititu remarked that some times the committee’s hands are tied.

“Some are used as rubberstamps to show that the tendering process was followed. They suffer the consequences if an investigation comes,” said the lawyer. 

What makes it worse is when they are put in the same category with their moneyed seniors. Their meagre salaries cannot afford high bail terms while the bosses walk free.

When Treasury Cabinet Secretary Henry Rotich and his Principal Secretary Kamau Thugge were granted Sh15 million cash bail over the dams’ scandal, they raised the amount within hours.

KVDA tender committee members were left to languish in cells.

Lawyers Katwa Kigen and Kioko Kilukumi, while pleading for the release of the KVDA tender committee members, summed up the misfortune they go through:

“The allegations against them are nothing but a misfortune. Nothing suggests they benefited financially or participated in the looting. They are junior employees who earn meagre salary and had no authority in awarding the contracts,” said Kilukumi. 

In the Kiambu County graft case, governor Waititu’s tender committee members Zacharia Mbugua, Joyce Ngina, Simon Kang’ethe, Anslem Wanjiku and Samuel Muigai found themselves in the dock for approving the tender for construction of a road without following due process.

According to the charges, the five allegedly committed only one offence; introducing a new criteria for evaluating the road tender in favour of Testimony Enterprises owned by businessman Charles Mbuthia, who in turn wired some of the proceeds to Mr Waititu.

Their lawyer Mbiyu Kamau argued that it was unfortunate they were being lumped together with the fat cats despite not benefiting financially from the tender award.

Lowly people

“These are lowly people within the county government who earn between Sh30,000 to Sh40,000 and their only sin was to sit in the tender evaluation committee which awarded the contract,” said Mr Kamau.

“They diligently did their work without knowing the conflicting interests.”

Despite pleading with the court to consider their lowly status and release them on a cash bail of between Sh50,000 to Sh100,000, chief magistrate Lawrence Mugambi was uncompromising in his decision and granted each a cash bail of Sh1 million.

When Samburu Governor Moses Lenolkulal was charged with enriching himself with county funds through supply of fuel, the entire tender committee was locked up with him.

A similar scenario ensued in Turkana County where 10 tender committee members spent months in jail for flouting  laws in awarding a Sh20 million tender for road vonstruction.

Several state corporations including National Hospital Insurance Fund (NHIF), Kenya Power, Kenya Pipeline, and Kenya Bureau of Standards have had their tender committee teams hauled in cells. 

Former Kenya Power Managing Directors Ken Tarus and Ben Chumo were locked up together with their tender committee members, later to be charged with conspiracy to defraud the company Sh750 million.

In the Sh2 billion Kenya Pipeline scandal, former procurement manager Nicholas Gitobu found himself in the dock alongside the corporation’s top officials for failing to follow procurement laws in awarding the contract for expanding the Kisumu Oil Jetty.

NHIF’s tender committee members Irene Rono, Jacinta Mwangi, Gilbert Kamau, Kennedy Wakhu and Fredrick Onyancha were also charged alongside the corporation’s top management over loss of Sh1 billion.

“Being members of the tender evaluation committee at NHIF, they willfully failed to comply with the law relating to procurement by failing to adhere to procedures and criteria set out in the tender documents in evaluating the submitted bids,” read the charge sheet.

When they were charged, the prosecution alleged that the NHIF top management concealed the looting by using the tender committee to approve contracts without following due process.

Several decisions from High Court and Public Procurement Administrative Review Board (PPARB) have blamed tender committees for being conduits of corruption.

In its findings cancelling some multi-million-shilling tenders at Kenya Power and National Irrigation Board, the PPARB noted some bosses use their juniors while concealing their interest in tender awards.

Last year, President Uhuru Kenyatta ordered that the tendering processes be made public.

As the war on corruption continues, the tender committee job is becoming the scariest in the civil service.

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Treasury Cabinet Secretary Henry RotichNHIFNYS