A human rights organisation has sued Kenya Petroleum Refineries Ltd (KPRL), challenging a tender for garbage collection and oily sludge disposal.
Coast Legal Aid and Resource Foundation (Clarf), which has named the Public Procurement Regulatory Authority as an interested party in the case, says KPRL has failed to carry out the tender in an open, accountable, fair, equitable, transparent, competitive, and cost-effective manner.
In its petition at the High Court in Mombasa, Clarf wants a declaration that KPRL conducted tender No. KPRL/OT/023.031/2022-2023 unconstitutionally and against procurement law.
The petitioner says the procurement process was unequal and opaque as there was no evidence that it would achieve transparency tests, competition, and merit requirements.
According to Clarf, on or about October 10, KPRL advertised the open tender before closing it on October 27.
Clarf argues that a mandatory pre-tender site visit was held on October 16, and bidders were invited for the opening of the tender at KPRL premises on October 27.
The petitioner says it was only on the tender opening day that it realised that some bidders present were absent during the site visit.
According to the petitioner, the tender had two parts, which included garbage and sludge collection.
It argued that it was mandatory to include the sludge requirements being National Environment Management Authority transport and site disposal licence yet during the tender opening the sludge rates were not read but were dismissed.
The petitioner says it was wrong to award the tender based on garbage collection only as it was an irregularity contrary to the provisions of the Public Procurement and Asset Disposal Act 2015.
“The actions of the respondent not to read the sludge rates goes against the very spirit of public procurement laws and the constitution,” part of the petition states.
Clarf also argues that the refusal to make known the sludge rates is contrary to the provisions of the Constitution.
The petitioner says that the lack of transparency concerning KPRL’s duty to obey the constitution runs afoul of its constitutional right to have the tender done in an open and accountable manner as one of the national values and principles of governance enshrined in the constitution includes accountability.
“By declining to conduct the tendering in an open, transparent, and cost-effective manner, the respondent has betrayed these values as well as denied the petitioner the protection and benefit of the law,” the petition states.
Clarf also wants a declaration that KPRL has violated its rights under the constitution and wants an order issued to compel it (KPRL) to re-tender.
In the meantime, Clarf wants the court to issue conservatory orders restraining KPRL from continuing with the tender pending the hearing and determination of the petition.