Toddy Civil Engineering, firm linked to KRA chairman lose Sh2billion sewerage tender
A local construction firm associated to the Kenya Revenue Authority (KRA) chairman Anthony Mwaura, Toddy Civil Engineering Company Limited has lost a petition challenging the award of a Sh2billion sewerage construction tender awarded to Blueswift Contractors and General Supplies Limited by the Lake Victoria North Water Works Development Agency (LVNWWDA).
Despite having been declared non-responsive in the preliminary evaluation stage for failure to fill out the form of personnel, which was a mandatory requirement according to submissions filed before the Public Procurement Administrative Review Board (PPARB), Toddy wanted the tribunal to rule it was the lowest evaluated bidder and therefore be awarded the lucrative contract.
However, in January this year, the water agency notified the thirteen bidders who floated their bids that the tender would be awarded to Blueswift Contractors and General Supplies Limited as it emerged as the lowest evaluated bidder having floated a quotation of Sh1,921,422,451.
On the other hand, Toddy was disqualified at the preliminary stage and therefore did not qualify for technical and financial evaluation.
In its ruling delivered on February 22, 2023, the board ruled that Toddy’s application was defective, bad in law and therefore was struck out.
“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 the request for review dated February 1, 2023.
“1. The applicant’s request for review dated February 1, 2023 is fatally defective and bad in law and is hereby struck out for want of jurisdiction. 2. Given our findings herein, each party shall bear its own costs in the request for review.” The board chaired by Faith Waigwa ruled.
Toddy was represented by Migos-Ogambo & Waudo Advocates through a statement sworn by Edwin Wachira who described himself as Toddy’s representative.
On the other hand, the water agency under the Ministry of Water, Sanitation and Irrigation was represented by Sigano & Omollo LLP while Blueswift, the interested party was represented by Sylvia Waiganjo of Gerivia Advocates LLP.
The tender in contention was for the construction works for water supply and sewerage project for the Moi’s Bridge and Matunda towns advertised on September 27, 2022 vide tender number: LVNWWDA/W/MOI-MTD/2022-2023.
Other companies that participated in the bid include; Seo and Sons Limited, Machine Center Limited, Gateway Innovations Limited, IRRICO International Limited, Gilberson Trading Company Limited and Dicom Engineering Limited.
Others are a joint venture between China Jiangxi International Kenya Limited and China Jiangxi International Economic Technical Company Limited, Baoye Hubei Construction Engineering Group, Sobetra Uganda Limited and a joint venture between Zhongmei Engineering Group Limited and Midland Construction Company Limited.
Also, a consortium of China Road and Bridge Corporation and Hubei Shuizong Water Resources and Hydro Power Construction Company Limited floated a joint bid.
“Toddy lacks the standing to seek administrative review by the board for failure to claim/ plead that it has suffered or risks suffering loss or damage due to a breach of the duty imposed on the water agency by the Public Procurement and Asset Disposal Act and Regulations 2020.” The board ruled.
Further, the board ruled that Wachira had no capacity to endorse request for review as he had no authority to do so setting another ground for the dismissal of Toddy’s case neither was he authorised to defend a suit or sign legal documents on behalf of the company.
“It is a mandatory requirement that there must be an express authority for any litigation by an incorporated company to be instituted. Lack of such authority is not merely procedural or technical issue as it goes to the roots of the operations of a company which can only act through its authorised agents.” The board ruled.
Mwaura was appointed to his new position at the helm of KRA policy guiding organ by president William Ruto in November 2022.
He was also the chairman of the United Democratic Alliance National Elections Board.
He first came to the limelight when his two companies; Hardy Enterprises Limited and Toddy Civil Engineering Company Limited were implicated in the Sh357 million corruption scandal at Nairobi County government during the tenure of former governor Mike Sonko.
