When Kenya Ports Authority (KPA) has obtained temporary orders to stop a firm from supplying and commissioning equipment to the authority worth Sh.540 million,to a layman,it was just another like many other such cases.
However,Weekly Citizen has information,there are more than meet the eye in the said case and a number of state multi-agencies stationed at the port including National Intelligence Services(NIS), Directorate of Criminal Investigations(DCI), Kenya Revenue Authority (KRA), Kenya Bureau Of Standards (KEBS) and Ethics Anti –Corruption Commission (EACC) were privy to the manner in which the tender was awarded and the faces behind the firm involved.
Carolyne Githinji
Mombasa High Court Resident Judge Erick Ogola granted the order to allow KPA to move the Court to quash the entire decision and order of the Public Procurement Administrative Review Board (PPARB) made to Rhombus Construction Company Limited for the supply and commissioning of 12 new Reach Stackers.
Rhombus construction is associated with Evans Githinji who is Chief Executive Officer (CEO) and Bernard Kairu, the Managing Director (MD) and a one Caroline Githinji associated with SANY,a Chinese firm.Weekly Citizen has information ,Rhombus is a local company based in Nairobi but involved in multi- millions tenders which once it lands brings on board SANY. Thanks to Caroline Githinji position as SANY MD.She oversees the day to day management of the business and Fang Shiyong is the sales and marketing manager SANY. The Chinese national is the SANY representative in Kenya overseeing heavy machinery dealership. For long time,the two firms are on the radar of money laundering and tax evasion with dumping of second hand equipment.
The decision by KPA to move to court is begged on the suspicion that Rhombus Construction is based in Kenya but the main beneficiaries of most deals they make goes to SANY, a Chinese company.null
Fang Shiyong
The company has its offices in Nairobi but SANY supplies it with heavy machinery.
Investigations by Weekly Citizen revealed that Rhomus Construction Company uses proxies in the government to get lucrative contracts, which SANY undertakes in the guise of supplying heavy machinery. The company, it is alleged, is associated with Deputy President William Ruto camp.
SANY main office is located on 5th Floor Building 6,No 8,Beijing Road,Changping District,Beijing.Post office1000 Beijing China with phone + 86-10 60 73 8888
On 17th August, 2020, Rhombus Construction Company went to PPARB seeking a review against the decision of KPA with respect to Tender No. KPA/073/2019-20/TE for supply and commissioning of the 12 New Reach stackers. The PPARB was represented by Ms. Faith Waigwa – Chairperson, Ms. Phyllis Chepkemboi – member and Dr. Joseph Gitari – member.
KPA had advertised the tender on 14th January, 2020 on MyGov publishing Website and the Lloyd’s list on 15thJanuary, 2020 inviting sealed bids from eligible tenderers.
Githinji Kinyanjui
The procuring entity received a total of nine bids by the bid submission deadline of 7th May, 2020. The same were opened shortly thereafter by a Tender Opening Committee.Among the bidders were Holman Brothers, JGH Marine A/S, ZPMC Engineering (Pty), Rhombus Construction Company Ltd, Konecranes LiftTrucks AB, Ferrari, Joh Achelis Soehne GmBH, Neral Holdings and Kalmar Reachstacker.
During preliminary evaluation, the following tenderers Rhombus Construction Company Limited, Joh Achelis& Soehne GmBH, Neral HoldingsLtd, and Kalmar Reachstackers were found responsive therefore qualified for Technical Evaluation.
Rhombus Construction Company Limited and Kalmar Reachstackers were shortlisted in the technical stage.
And in the financial evaluation committee recommended award of the subject tender to Rhombus Construction Company Ltd having determined that it was the lowest evaluated bidder at the price of USD 5,628,207.0. Kalmar Reachstackers had bided for USD 5,475,000.00.
However, professional opinion dated 29th July, 2020, the Procuring Entity’s Acting Head of Procurement and Supplies outlined the manner in which the 5 Procuring Entity undertook the subject procurement process whilst reviewing the Evaluation Report received on 10th June, 2020. He then recommended cancellation of the subject tender in accordance with section 63 (1) (b) of the Public Procurement and Asset Disposal Act, 2015 due to inadequate budgetary provision. The said professional opinion was approved by the Procuring Entity’s Acting Managing Director on 6th August, 2020.
PPARB, which is tasked with reviewing, hearing and determining tendering and asset disposal disputes ordered KPA allow Rhombus Construction Company to supply and commission equipment to the authority worth Sh.540 million under unclear circumstances.What PPARB failed to understand was the secret reports filed by state agencies on SANY and Rhombus secret operations in Kenya.At PPARB linkman for Rhombus is Chepkemboi.
Justice Ogola said the leave granted to the state corporation against the firm shall only operate as a stay of the entire decision and orders issued by the PPARB.
“The stay order against the Public Procurement Administrative Review Board on the entire decision and order issued for supply of the equipment will remain in force pending the hearing and determination of substantive KPA application for judicial review orders,” he pointed out.
The high court judge, through chamber summons, has certified the matter as urgent adding that this was in line with the express provisions of a section of the Public Procurement and Assets Disposal Act.
Justice Ogola ordered that the envisaged motion be filed within 7 days upon perusal of the KPA application dated January 19 brought under a section of the Law Reforms Act.
KPA, through its corporate legal counsel Addraya Dena, said the application is extremely urgent and warranting urgent attention of the court arguing that the firm had last month requested for a review before the PPARB.
She said in her application the authority is aggrieved by the decision taken by the PPARB delivered in favor of the disputed firm.
“The state corporation now challenges the PPARB’s decision in favor of the said firm by way of a judicial review filed at the court,” she pointed out.
The KPA counsel through her application challenged the PPARB decision pointing out that the state corporation did not issue a notification of the tender award to the firm because the Procurement Regulatory Authority (PPRA) informed them they have received complaints that the controversial firm had allegedly submitted forged documents for the procurement process.
Dena added the procedure was meant to ensure the firm met mandatory requirements of the disputed tender.
“To make matters worse the forgery allegation was forwarded to the Directorate of Criminal Investigations (DCI) for investigation,” she pointed out.
The KPA counsel said the forgery issue was of great concern to the PPRA which said this was a governance issue in the Public Procurement and Asset Disposal Act 2015 which empower the state corporation to terminate or cancel a tender at any time prior to its notification of award.
Dena said the firm had instead filed a request for review at the PPARB last year challenging the cancelation of the tendering process by the authority arguing the firm met the criteria for being awarded the tender.
She said in the application in his supporting affidavit KPA procurement and supplies manager Cosmas Makori said that acting KPA managing director Rashid Salim approved the professional opinion and recommendations sent to him for cancelation of the tender due to inadequate budgetary provisions for the controversial tender.
“Last year all applicants for the tender were informed through a notification letter that the procurement process had been cancelled due to inadequate provisions on the subject matter,” she pointed out.
There's no story that cannot be told. We cover the stories that others don't want to be told, we bring you all the news you need. If you have tips, exposes or any story you need to be told bluntly and all queries write to us [email protected] also find us on Telegram
