Court to end tender feud on Sh200bn irrigation scheme

The High Court is set to deliver its ruling on High Grand Falls dam Friday, clearing a tender row that has bogged down the Sh200 billion project which is Kenya’s largest water reservoir.

The ruling by Justice John Mativo is expected to finally settle the dispute that has been raging over the project set to be built in Kitui and Tharaka Nithi counties.

The row had previously been heard and determined by the Public Procurement Administrative Review Board (PPARB) for a record five times, before ending up in courts.

The feud arose after the National Irrigation Board (NIB) declined to award the contract to a consortium of British and Turkish firms — GBM and ERG Consortium — which reportedly won the tender competitively, despite numerous orders to do so by PPARB.

The GBM and ERG Consortium was among seven prequalified international construction firms, five of them Chinese, which participated in the bidding process. The High Grand Falls Dam Project is part of the Sh1.5 trillion Lamu Port and Southern Sudan-Ethiopia Transport Corridor (Lapsset) projects.

The project could be Africa's second largest water reservoir after the Aswan High Dam in Egypt along the River Nile and Kenya's biggest dam covering a massive 165 square kilometres.

While the case before Justice Mativo pits two state agencies – the National Irrigation Board which had sued the PPARB - the Attorney-General, who is the chief legal advisor for the government, threw his weight behind the latter.

According to suit papers, NIB wanted the court to overturn several rulings made by the PPARB including the last one on March 21 where it was ordered to evaluate and award the contract to the London-based bidder within 14 days.

“NIB believes that the decision of PPARB is tainted with bias, illegality, irrationality, lack of logic and is ultra vires to the provisions of the Procurement and Asset Disposal Act and all other relevant provisions of the law,” read an affidavit sworn by NIB General manager Gitonga Mugambi. The judicial review matter is significant because it sets a precedent where a government procuring entity disagrees with the body mandated by law to determine tendering disputes and takes the fight to the High Court. However, during the case hearings, Attorney General strongly defended the PPARB over its handling of the tendering dispute arguing the case undermined the board’s authority and mandate.

The AG argued that the case by NIB should be dismissed “because it is calculated to undermine the authority, and tarnish the credibility of PPARB as the oversight body in procurement matters, erode public confidence in the Board and to delay compliance of its orders.”