The uproar over the controversial frame agreement contracting in Kilifi is set to take centre stage in the corridors of justice after a number of business men vowed to challenge tens of contracts awarded under the new model introduced by Governor Gideon Mung’aro.
The businessmen who have numerously complained of being locked out of business, despite meeting all procurement regulations want to challenge the contracting process, which they claim is skewed and tilted in favour of a few unscrupulous businessmen.
They claim the system has been designed to only favour seasoned and well-established contractors and suppliers known to the governor and other senior politicians from the county.
The county adopted the framework agreement approach in its procurement plan in what was seen as way of improving efficiency and accountability.
Framework contracting has been deployed in various national government departments with Kilifi County adopting model at the beginning of the 2023.
Since then, reports have been rife that few suppliers have dominated the supply chain, exposing the county to the risk of reduced innovation, lack of compliance.
To date, various reports have linked senior county officials for dominating the supply chain through their proxy companies. A dominant supply chain made of individuals who have run the show in Malindi, Mombasa and the municipalities has been having a field day, reaping big at the expense of hundreds of other potential suppliers.
This is now headed for a legal battle, heavily reliant on similar other cases where courts have stopped state agencies from using the model to procurement after suppliers who had otherwise won tenders had their contracts ended prematurely.
“What is happening is that a few individuals are now meeting in hotels to decide who suppliers what, when and where all in the name of frame contracting,” a young supplier based in Malindi lamented.
He added: We will seek legal action now to remedy the situation because that seems to be the only option left for now,”
The disgruntled business fraternity also clam the framework contracting that has been going on across all sectors has instead led to massive collusion, kickbacks, favouritism and overpricing.of contracts.
Those not in the clique of the Kilifi’s famous and notorious ‘High Table’ of shrewd contractors and suppliers are having it hard and one female suppliers even complained that tenders meant for women, youths and people with disability are being given to the few heavyweights who are using proxy companies.
In general practice frame contracting is usually designed to guarantee cost savings, improve efficiency, enhance accountability,promote standardization and guarantee capacity building.
However, in Kilifi, the situation speaks otherwise with cases of illegal tendering, delayed implementation of projects and nepotism taking centre stage.
Maxwell Biketi who is a lawyer by profession has opined that it is within law for any business man aggrieved by any procurement process to move to court to seel legal intervention.
“I understand them and yes, they can do it using the Section 174 of the Public Procurement and Asset Disposal Act, 2015 which lays basis for such cases,”
He cited the case between Asphalt Works Investment Limited and Kenya Ports Authority of 2023.
Asphalt sued KPA in respect of three tenders it has won but all these was later overturned unceremoniously by KPA in favour of another contractor.
The company sought judicial review orders in respect of tender numbers KPA136/2021-22 which was a framework agreement for drainage and water reticulation, KPA 137/2021-22framework agreement for Road Works, KPA 138/2021-22 framework agreement for concrete works and KPA.
The company asked the Mombasa High Court to compel KPA to terminate procurement for the supply of similar services in respect of the said tenders.
The application was premised on the grounds that the KPA had advertised the tenders yet the company had already been contracted to offer the services for two years by the same state agency.
It is based on this that the business class in Kilifi will be seeking redress in court. They claim that just like the KPA case, some contracts already awarded in Kilifi are being mutated so that they can be re advertised and given to other suppliers under the frame agreement contracting.
“This is another way of avoiding to pay contactors who have toiled for years to create an avenue for a few people to steal public resources,” a irate contractor whose pending bills have not been cleared lamented.
It is expected that the business men will been seeking court orders for cancellation of all contracts recently awarded or reviewed to pave way for thorough scrutiny and due diligence. The will also be demanding that the court relays information of all frame agreement contracts.
