Contractors in an out-of-court deal over Sh22.8bn WB project

Education Cabinet Secretary Prof. George Magoha (right) lays a foundation stone for the construction of classrooms for junior secondary school at St Patrick’s Iten High School in Elgeyo Marakwet on January 08, 2022. PHOTO | JARED NYATAYA | NMG

Contractors have won a Sh22.8 billion World Bank secondary schools infrastructure tender suit after signing an agreement before the High Court compelling the State to complete the works as earlier agreed.

The Ministry of Education had earlier suspended the implementation of the Secondary Education Quality Improvement Project (Seqip) in unclear circumstances even after awarding the tender, forcing contractors to move to court.

They obtained an order in October barring the government from cancelling the World Bank-funded bid for the construction of classrooms and toilets in select primary and secondary schools in 30 counties.

In an out-of-court agreement between the Attorney General and the contractors’ lawyer Gad Ouma of G.M Gamma Advocates, the parties resolved that the tender proceeds as originally stated.

“By consent of all parties, it is hereby agreed that the contract by the Ministry of Education for construction of classrooms, laboratories and sanitation facilities in targeted primary and secondary schools…be executed by all parties without alterations…” reads the consent dated May 2022.

The contractors argued that the decision by the State to keep them in the dark concerning how to proceed on the project exposed them to commercial losses and the risk of financial defaults on their obligations already incurred.

Under a deal with Kenya, the World Bank was to provide Sh22.8 billion between 2017 and 2023 to improve infrastructure in secondary schools to facilitate 100 per cent transition of learners from primary school.

The Ministry of Education invited bidders for the construction of classrooms, laboratories and sanitation facilities in November 2020 and notified successful ones in the multi-billion shilling contract.

The 26 companies including Samaha Company Ltd, Columbia Developers, All Weather Investment Co. Ltd and Lantana Africa Ltd argued that the government refused to formally sign the contracts, nearly a year after they were submitted.

The project also included helping the government to hire and train teachers, provide scholarships to needy learners and customise a curriculum.

The World Bank in April 2021 warned Kenya that delays in signing contracts with construction companies could now render the procurement process void, and stall the project that was intended to be completed by 2023.

This was followed by a letter from the Office of the Auditor General in August 2021 asking the ministry to explain why the project tenders are yet to be signed and the cost incurred to date.

When he appeared before the National Assembly, Education Cabinet Secretary George Magoha denied that the World Bank-funded Seqip had been suspended.

Confidential documents seen by the Business Daily, however, show a directive issued to Prof Magoha ordering that all payments under the scheme be halted.

Head of Public Service Joseph Kinyua wrote to Prof Magoha on January 26, stating that the Executive was crafting a policy response to problems affecting secondary education and that it was necessary to halt all development projects in the course of the analysis.

Mr Kinyua indicated in the letter that the government’s plan to enrol all primary school finishers in secondary schools had strained infrastructure and the needs of each school needed to be analysed.

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