Rubis Suffers New Setback in Fight to Save Sh9B Fuel Supply Deal

As the procurement disputes tribunal maintained its judgment to nullify an Sh8.7 billion fuel supply deal that it had been awarded by Kenya Power last December, French oil marketer Rubis Energy has suffered another setback.

A 17-minute hiccup in Kenya Power’s e-procurement system caused one of the bidders, Galana Oil Kenya Ltd, to be kept out of the lucrative tender, leading to the nullification.

The agreement called for Rubis Energy Kenya Plc to provide 30 off-grid power units in northern Kenya with at least 53 million liters of diesel over the course of two years. 

The tender award was annulled by the Public Procurement Administrative Review Board, and Rubis filed a lawsuit to overturn the ruling.

However, the attempt was unsuccessful since Justice Jairus Ngaah ordered new review proceedings rather than overturning the board’s judgment on December 22, 2022.

It argued against the nullification on the grounds that the chairperson of the board, lawyer Faith Waigwa, was conflicted by her position as managing partner of an advocacy firm that represents clients like Kenya Power.

Additionally, Rubis argued that the board issued its decision on December 22, 2022, at 8.11 p.m., outside regular business hours and without informing the parties. Instead of overturning the board’s decision, Judge Ngaah instructed it to reexamine the Galana request for a review of the tender that was to be given to Rubis.

Yet because Ms. Waigwa had a client-advocate relationship with Kenya Power, he forbade her from taking part in the review process.

She had neglected to declare her interests, according to Justice Ngaah. He continued by saying that it was undisputed proof that she was a partner in the law firm known as NOW Advocates LLP, whose clients include Kenya Power.

The review was presided over by Queens Counsel Hussien Were, and the board upheld its decision to overturn Kenya Power’s choice to award the contract to Rubis. 

The board also gave Kenya Power the go-ahead to start a new procurement procedure. 

Other members of the board were Mr. Mbiu Kimani and Mr. Paul Jilani. The tribunal found that Kenya Power conducted the procurement process using a system that was unfair to Galana Oil Kenya Limited.

Due to a technical issue with Kenya Power’s online system, the bidder was locked out and unable to submit its tender. 

A few minutes before the deadline for submitting the tender documents, the board discovered that Kenya Power had employed an electronic procurement method that had locked out Galana Oil Kenya Ltd.

The tender documents have to be submitted by November 23, 2022, at 10:00 am. Galana was unable to use Kenya Power’s e-procurement system from 9.42 to 9.59 am on the specified day, though. 

The technical malfunction of the “KPLC SAP tendering portal,” an electronic procurement system, was not explained by Kenya Electricity.

“The SAP tendering portal was not open and accessible to Galana from 9.42 am to 9.59 am on November 23, 2022, before the tender submission deadline of November 23, 222 at 10.00 am,” the board stated.

East African Gasoil Limited, Oryx Energies Kenya Ltd, Nyumba Itu Energy, and Hass Petroleum were the other four bidders that Rubis outbid. 

The decision implies that additional businesses that did not initially submit a bid may now compete in the tender.