An Italian company has failed in its bid for a lucrative supervisory role in the ongoing construction of the standard gauge railway after the High Court threw out its petition challenging award of the tender to a Chinese company.
The Italian firm, Team Engineering, moved to court after the Public Procurement Administrative and Review Board (PPARB) declined to hear its request for a review of award of the tender to China’s Third Railway Survey and Design Institute (TSDI).
Team Engineering said it received the procuring entity’s email notification on June 4 and filed its request for review two days later. The review board, however, declined to approve the request, arguing that it had been filed three days after expiry of the 14-day window stipulated by law.
Team Engineering had asked the High Court to quash the review board’s order and compel it to accept the request for a review. PPARB had declined to hear the matter, arguing that it did not have the jurisdiction to entertain a late filing.
Kenya Railways, which advertised for the tender, had contended that the time difference between Italy and Kenya was the reason for the disparity in the times each party had as the sent and received times of the email.
Justice George Odunga said the procurement entity could not be faulted for refusing to hear the Italian firm’s request for review.
“Whereas I find that in the circumstances of this case the respondent ought not to have determined the issue of notification of the decision by the procuring entity in a preliminary objection, its decision to abstain from exercising jurisdiction in the matter before it cannot be faulted,” said the judge.
He, however, said the manner in which the procuring entity and TSDI entered into the contract may not have been entirely constitutional, but could not quash it as Team Engineering had not asked for such an order.
“Since the decision to enter into a contract by the procuring entity is not the subject of this application, it is my finding and I so hold that to grant the orders sought herein would not be effacious,” said the judge.
Kenya Railways maintained that Team Engineering came third in all stages of the technical scores, and lost the bid on grounds of being less competitive. The High Court’s decision means that both the construction and the supervision of the standard gauge railway will be done by Chinese firms.
Team Engineering had quoted Sh6.2 billion ($71 million) in its bid, while TSDI had quoted Sh3.6 billion ($41 million).
The construction tender was awarded to China Road and Bridge Corporation, which has already started construction of the first phase of the railway line that extends from Mombasa to Nairobi.