BY SAM ALFAN.
A petition has been filed seeking to suspend a tender by troubled Kenya Power for underwriting services.
Activist Okiyah Omtatah wants the High Court to issue a conservatory order suspending the processing of insurance brokerage firms tender, pending the determination of the case.
He further wants the court to declare the raising of professional Indemnity Cover from a minimum Sh200 million, and territorial limit within Kenya, to a minimum Sh1 Billion is unlawful, unreasonable, oppressive, unfair, opaque, discriminatory and, therefore, unconstitutional.
“A declaration that raising in KPLC Tender No. KP1/9A.2/OT/001/INS/21-22 for Pre-Qualification of Insurance Brokerage Firms of the total premium turnover for years 2019 and 2020 from an optimal Kshs 500 million to an Optimal Kshs 2 Billion (excluding KPLC), is totally outrageous and oppressive and, therefore, unconstitutional, null and void,” he urged.
He wants the court to quash the said Tender for PreQualification of Insurance Brokerage Firms.
Omtatah also wants a declaration that tenders issued by the KPLC must have provision for 30 percent affirmative action under the Access to Government Procurement Opportunities (AGPO) programme.
He told the court that the application is extremely urgent saying the tender closes on August 12, 2021 at 10.00 am, and the matter will be overtaken by events if it is not heard immediately.
KPLC, he argued is a State corporation subject to the laws governing Kenya’s public sector.
On June 8, 2021 the company advertised in the press inviting bids for the tender to cover the period between September 1, 2021 to August 31, 2023.
He said that without giving any reasons, KPLC wrote to all bidders notifying them that the procurement process had been terminated and tender cancelled.
He argued that on July 20, the procuring entity advertised fresh tender with a closing date of August 12, 2021 at 10.00 am.
The bids will be opened electronically promptly thereafter in the presence of the bidders or their representatives who choose to attend in KPLC Auditorium at Stima Plaza, Kolobot Road, Parklands, Nairobi.
Due to infighting in the company’s top management and the Board over the tender, there was a delay in releasing the tender document detailing the requirements, he said.
The document was posted on the KPLC E-Procurement web portal nine days later, on Thursday, July 29. This is clearly stated at Para 1.2.1 on page 5 of the tender document. Hence, there has been no delay in filing these pleadings.
According to Omtatah, upon scrutiny of the second tender document, he was aggrieved to note that some of the bidder eligibility requirements had been changed.
He said the changes are unlawful, unreasonable, oppressive, unfair, opaque and discriminatory and meant to defeat the provisions of Article 227(1) of the Constitution.
The said article states that when a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.
He added that the Second Tender document imposes unacceptable bidder eligibility requirement of a Valid Professional Indemnity Cover of minimum 1 Billion.
“It should also be noted that the accompanying qualifying expression “territorial limit within Kenya” has been expunged in the second tender document, underscoring the fact that locals have been locked out,” he said.
He argues that the requirement for a Professional Indemnity Cover of minimum limit 1 Billion is unreasonable and oppressive because even the Insurance Regulatory Authority itself requires a Professional Indemnity Insurance Policy with a minimum limit of 10 million.
