The termination was announced on December 24 on grounds that the evaluation process has been invalidated by the lapse of the statutory period.
The firm says KeNHA ought to have concluded the evaluation process strictly under the request for proposals.
The construction of the key highway was expected to start last September but it is likely to delay further, with the cancellation of the tender.
The construction of the Sh160 billion highway from Nairobi to Mau Summit has run into headwinds after two foreign firms moved to the Administrative Review Board following the cancellation of the procurement for independent experts.
Spanish firm Technica Y Proyectos, S.A in consortium with Gibb Africa Ltd rushed to the board on Monday after Kenya National Highways Authority (KeNHA) notified it of the cancellation of tender for the independent expert who will supervise the construction of the road.
The termination was announced on December 24 on grounds that the evaluation process has been invalidated by the lapse of the statutory period. In the notification, the State agency said the delay was occasioned by the dissenting opinions among the evaluation committee members.
But the Spanish firm through the law firm of Kihara & Wayne Advocates said it believes that it was unfairly denied the tender, having attained the highest combined score, in breach of the Constitution.
The firm says KeNHA ought to have concluded the evaluation process strictly under the request for proposals.
“That the first respondent (KeNHA) by terminating the procurement has failed to promote and enforce transparency, effective management and accountability contrary to section 44(2)(e) if the Public Procurement and Assets Disposal Act, 2015,” reads part of the court filings.
The construction of the key highway was expected to start last September but it is likely to delay further, with the cancellation of the tender.
The tender for the construction of the 233-kilometre highway that transverses Kiambu and Nakuru will be built by the Rift Valley Highway Company — a consortium comprising Meridian Infrastructure Africa Fund, Vinci Highways, and Vinci Concessions, a French concessions and construction firm.
The construction will see the road expanded into a four-lane dual carriageway through a public-private partnership model and will have users pay for its costs, as the government turns to toll as an alternative development financing model.
Another bidder, Korea Express Corporation (KEC), Korea Consultants International Company ltd (KIC) & Apec Consortium ltd also challenged the cancellation arguing that termination does not satisfy the requirements of the law, since it came the bidders had gone through all the process.
“The aforesaid letter of notification of the termination is vague, and unclear as to whether the evaluation committee had prepared an evaluation report containing of the evaluation and comparison of the tenders,” the Korean firm said in its court documents.
The firms want the board to compel KeNHA to complete the process and award the tender to the successful bidders.
The Spanish firm has cited the Nairobi Expressway project saying the procurement process was carried for a much longer period, by exceeding the validity period of proposals three times.
“However in this instant procurement the said respondent has treated the applicant differently by terminating the procurement well within the initial validity period, which was to expire on 8th March, 2022,” Joaquin Barba Zalvide, the managing director (Africa) said in an affidavit on behalf of the Spanish firm.
The consortium is expected to design, finance, construct, operate and maintain the express.
The firm will then recoup its finances using the revenues and income generated by the electronic toll collection system along road over a period of 30 years.
The project will also involve widening of the existing Rironi- Mai Mahiu–Naivasha road to becoming a seven-metre carriageway with two-metre shoulders on both sides, construction of a four-kilometre elevated highway through Nakuru town, and building and improvement of interchanges along the highway.
