Bomet County officials in a spot after agency overturns Sh495m tender cancellation

The County Government of Bomet has been caught up in a storm over the cancellation of the Sh495 million County Aggregation and Industrial Park construction tender.

The Public Procurement Regulatory Authority has rescinded the decision by the county government to cancel the award to Astronea Construction Ltd. In addition, Bomet County officials have been put on notice of facing legal action for admitting to breaking the law after canceling the contract.

On September 28, the county, through the Acting Director of Procurement, Beatrice Laboso, notified Astronea that the tender had been canceled due to lack of funds. She cited “Inadequate provision as stipulated by Sec 63(b) of the Public Procurement and Disposal Act 2015 and its attendant regulation No. 48 (1&2) of 2020”. In the letter, Laboso informed Astronea that the county intended to re-advertise the tender soonest.

Aggrieved by the decision, Astronea went to the PPARB to appeal against the cancellation. The construction company argued that Bomet County was just a facilitator in the construction of the Aggregation and Industrial Park, giving only ten per cent of the overall cost. The Ministry of Trade and Investment and the Council of Governors were to provide the remaining 90 per cent.

Astronea further argued that Bomet was well aware of the estimated costs long before inviting bids for the construction. According to them, the county was very specific when they asked interested bidders to demonstrate access to liquid assets, unencumbered real assets, lines of credit and other financial means sufficient to meet construction cash flow of Sh147,000,000 and a minimum average annual construction turnover of Sh1.287 million within the last three years.

Hide and seek 

Astronea accused Bomet County of playing hide and seek by failing to give a true and proper account of Budgetary Support from the Ministry of Trade and Investment. They accused the county of hiding the fact that they already had money committed from the national government.

According to the papers filed in the PPARB, Astronea accused the county of deliberately breaking the law, and intentionally exposing the county to litigation by failing to produce evidence on the proposal for the financing of any anticipated budget deficit.

By inviting bids for the Sh500 million project, publicly going through the entire procurement process and even spending money to visit the sites of the bidders, Astronea says that the county acted contrary to Article 220 (1)(b) of the Constitution.