High court pushes ruling on Sh12.6 billion police tender wars to January 2020

Interior Cabinet Secretary Dr Fred Matiang'i when he addressed residents of Gatundu South in Gatundu Town. His ministry locked up in a tender row with CMC Motors. [File, Standard]

Interior Ministry has suffered a setback after the High Court stopped it from signing any deal on the contentious Sh12.6 billion tender for police vehicles until January next year, when a ruling will be made.

Justice John Mativo issued a stay order until January 20, 2020, when he will rule on the protracted war, pitting industry players and the Interior ministry.

CMC Motors appealed after it lost at Procurement Administrative Review Board (PPARB) tribunal on September 18, which had ruled that the Interior ministry was justified to cancel the tender because of the price difference.

However, the motor firm on October 1 appealed, claiming the Interior ministry flouted procurement rules by awarding the tender to another company on September 20, two days after the ruling of PPARB.

The company says Interior ministry flouted section 175 of Public Procurement and Assets Disposal Act 2015, which gives a 14-day window for appeal after tribunal's ruling.

Justice Mativo on Wednesday noted that, under Section 168 of the Public Procurement and Asset Disposal Act of 2015, no contract can proceed when an appeal on the same is pending.

The application by CMC wants the review board to declare the tender for the leasing of motor vehicles from local assemblies illegal, null and void.

Under the phase I and II programmes, which kicked off in 2013, the National Police Service (NPS) through the Interior ministry leased 530 Ford Ranger single cabin and double cabin pick-ups for use by the police and county government administrators.

NPS leased from CMC 75 vehicles three years later, to bring the total number of managed vehicles to 605 vehicles that would serve for four years with a room for an extension or renewal.

Interior ministry is now caught up in vicious fight after it terminated the CMC tender, weeks to the lapse of Phase II.

A week ago, PPARB stopped the Government from signing a multi-billion shilling vehicle leasing tender, giving a big blow to the Interior ministry.

CMC Motors, which lost out on the deal, moved to PPARB seeking cancellation of the tender.

CMC, through its lawyer Migos Ogamba, on Wednesday challenged the manner in which the procuring entity skewed the tender to favour other players under the guise of local assembly while the beneficiaries had failed on technical aspects.

The petitioner argues that the procuring entity carried out a market survey with the sole reason of terminating the subject tender.

The lawyer requested that the matter be interrogated on why the market survey was conducted on two service providers who participated in the subject tender, but failed during technical evaluation.

Procurement process

But Stephen Wamae in his response, on behalf of the Interior principal secretary, noted that CMC refused to participate in the second procurement process after the cancellation of the first one.

Ogamba noted in his counter-response that since bidders were recommended for award of the subject tender in the lots in issue, the procuring entity had the obligation to award the tender.

“The procuring entity prepared specific requirements relating to items under procurement that did not allow fair and open competition among those who may wish to participate in the procurement proceedings,” the CMC application further stated.

The counsel argued that the procuring entity flouted procurement regulations on seven grounds.

They argue that the entity breached sections 60(1), (2) and (3) of the Public Procurement and Asset Disposal Act 2015.

“The procuring entity prepared specific requirements relating to items under procurement that did not allow fair and open competition among those who may wish to participate in the procurement proceedings,” the CMC application further stated.

In the suit, CMC also faults the Interior ministry for contravening Section 60(4) of the PPAD, 2015 in that the technical requirements referred to a particular producer or service provider and/or specific country of origin.

“The procuring entity’s technical requirements only invite bidders who are local assemblers to participate in the procurement process,” the application added.

Ogamba told the review board that the ministry breached Sections 53(10) of PPAD, 2015 on the model of rendering.

“The procuring entity’s procurement plan for the leasing of motor vehicles throughout the different phases has been through open tender and it is only now that the procuring entity has used a restricted method of tendering,” he said.

Among other grounds that the CMC sought cancellation of the contract is that the Interior ministry contravened constitutional principles of governance and national values, equality and freedom from discrimination and fair administrative action.

“Principles demand that a procurement process be fair, equitable, transparent, competitive and cost-effective,” argued CMC.

The High Court on October 1, 2019, in judicial review of 284 of 2019, granted orders of prohibition to stop the interested party from advertising, inviting, accepting and evaluating bids or awarding the contracts. The orders have since been extended to October 23.