Machakos Chief Officer for Housing and Urban Development, Collins Adipo, stands out for his persistent disregard for lawful orders. In a notable instance, Adipo overstepped his authority by ignoring directives from both the High Court and the Public Procurement Authority, and took over the duties of the Municipal Manager to issue a Kes 88 million tender for the World Bank-funded upgrade project in Machakos Town, which had been stalled.
Originally, Seluk Investment Limited had won the tender in May of the previous year, but Mr. Adipo, acting as the Accounting Officer, refused to issue a Letter of Award to the winning company. This led Seluk to seek the intervention of the Public Procurement Authority, which ruled in its favor.
Seluk then escalated the matter to the High Court via Judicial Review Applications against the actions of Mr Adipo where Justice Kayola Olel , sitting in Machakos, restrained both Mr Adipo and the County Government of Machakos in a 9-point order pending full hearing. Nevertheless, Adipo defied the orders.
The tender in question is GMC/KUSP/MKS MU /01/2023-2024 for upgrading of whole sale and Retail Market loop roads in Machakos Municipality KUSP 2023-2024.
Adipo, conferred the tender in a later drafted a day after the illegal process closed. It closed on February 20. The next day- February 21, he wrote a letter of award of the multi million project that has seen the stalling of a world Bank project under the Kenya Urban Support Program. The WB has been pressing for the use of funds to enable them provide a new grant of Kes 2 b that is shared between the Machakos, Mavoko and Tala- Kangundo Municipalities.
By awarding the tender to Hayaty Enterprises Limited and Mashteck Limited, which share the same Nairobi address and are owned by Mr. Ali Guliye, Collins Adipo positioned these firms as the preferred tenderers for Governor Wavinya Ndeti. Through various means, these companies have consistently secured tenders, particularly in the county’s water sector. This sector is overseen by Yunis Guliye.
Sources say that the twin firms were awarded the tender and instructed to swing into action at once and ensure the works are completed in record time. And immediately the award was granted, the firms, without erecting billboards on the sites as is required, begun excavating the Retail-Wholesale market section.
At the centre of the funding fiasco is Kes 89m that the Machakos Municipalities Board earmarked for the project. The Board is chaired by Mr Malcom Kateta. It had allocated the initial tender but Mr Adipo has since edged out the Board in the latest tender award. The board, sources say, is on edge as it fights for autonomy to be able to run its programmes without interference from Central or the County government.
The award comes hot on the heels of a finding by Public Procurement Administrative Review Board that stated “the board finds that the procuring entity’s 2nd tender as published in its website and subsequent procurement processes such as opening of submitted tenders. Evaluation of submitted tenders issuance of the professional opinion in 2nd tender and notification of award dated 7th December 2023 is unlawful thus null and void.”
“The upshot of our findings therefore is that the instant Request for review succeeds in terms of following final orders:
In exercise of the powers conferred upon it by Section 173 of the public procurement and asset Disposal Act No. 33 of 2015, the Board makes the following orders in Request for review dated 10th January 2024 and filed on 11th January 2024:
A. The letter of notification of intention to award dated 7th December 2023 issued by the 1st Respondent with respect to tender No. GMC/KUSP/MKS MU /01/2023-2024 for upgrading of whole sale and Retail Market loop roads in Machakos Municipality KUSP 2023-2024 and hereby nullified and set aside.
B. The decisions by 1st Respondent to advertising and publish tender No. GMC/KUSP/MKS MU /01/2023-2024 for upgrading of wholesale and Retail Market loop Roads , St. Mary’s Girls Primary School to KWFT link roads, St Municipality KUSP FY 2023-2024 including the subsequent procurement processes undertaken with respect to the said tender such as opening of submitted tenders, evaluation of submitted tenders, issuance of professional Opinion dated 22nd November 2023 and issuance of letters of notification of intention to award dated 7th December 2023 be and is hereby annulled and set aside.
C. The tender validity period tender No. GMC/KUSP/MKS MU /01/2023-2024 negotiations No. 1300044-2022-2023 for upgrading of whole sale and Retail Market loop Roads, St Mary’s Girls Primary School to KWFT link road in Machakos Municipality KUSP FY 2022-2023 be and hereby extended for period of 148 days from 9th October 2023 to 4th March 2024.
D. Further to order No. C above the 1 Respondent is hereby directed to issue written notification to tenderer in tender No. GMC/KUSP/MKS MUN/01/2022-2023 negotiation No. 1300044-2023 for upgrading of whole sale and retail Market loop Roads, St Mary’s Girls Primary School to KWFT link road in Machakos Municipality KUSP FY 2022-2023 notifying them of extension of the tender validity period from 9th October 2023 to 4th March 2024.
E. The 1st Respondent is hereby ordered to ensure that the procurement proceeding of tender No. GMC/KUSP/MKS MUN/01/2022-2023 negotiations no. 1300044-2022-2023 for upgrading of wholesale and retail market loop roads St. Mary’s Girl Primary School to KWFT link road in Machakos Municipality KUSP FY 2022-2023 proceeds to its lawful and logical conclusion taking into consideration the board’s finding herein, the provisions of the Tender Documents, the Act and constitutions.
F. Further to order E above the 1st Respondent is hereby ordered to submit a report to the public procurement regulatory Authority on compliance of the orders issued herein within twenty one (21) days from the date of this decision.
G. That the acting board secretary do immediately serve this decision upon the Director General, Public procurement Regulatory Authority to exercise its mandate under section 9(1) of the act with respect to procurement proceeding in tender No. GMC/KUSP/MKS/MKS MUN /01/2022-2023 negotiation Retail Market loop Roads in Machakos Municipality KUSP FY 2022-2023 as ordered herein.
H. In view of the board’s findings and orders above, each party shall bear its own costs in the request for review.
Dated at Nairobi this 2nd Day of February 2024.”
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