By GALGALLO FAYO
The award of the Mombasa-Malaba standard gauge
railway contract to a Chinese firm was a government-to-government
contract that is not subject to the Public Procurement and Disposal Act,
the Transport secretary told the High Court on Thursday.
Responding to a suit filed by the Dock Workers
Union challenging award of the Sh1.2 trillion tender to China Road and
Bridge Corporation, Michael Kamau said Section 6 of the Act excludes
government-to-government contracts from being subject to the law.
The Attorney-General a week ago warned State firms
against using government-to-government agreements to bypass
requirements of the Public Procurement and Disposal Act 2005. “That Act
cannot apply to negotiated grants and loan,” said the State counsel
representing Mr Kamau.
In an advisory opinion to concerns raised by
Maurice Juma, the head of the Public Procurement Oversight Authority
(PPOA) regarding the tender for the construction of the railway, AG
Githu Muigai said government-to-government agreements are bilateral
deals under the Treaty Making and Ratification Act 2012.
Risk
Justice George Odunga on Thursday allowed the
union to file their main application within seven days, saying the
petition raises weighty issues.
The Dock Workers Union claimed the Chinese firm
has no expertise and capacity to carry out the multi-billion shilling
project launched yesterday President Uhuru Kenyatta.
The union has sued the Cabinet secretary for
Transport and managing directors of Kenya Railways Corporation and Kenya
Ports Authority. The workers claim the cost of the Sh1.2 trillion
project has been inflated and about Sh600 billion of taxpayers’ money is
at risk of being lost.
But Mr Kamau in his response sought to dismiss the
claim by comparing the cost of Kenya’s project with that being
undertaken by Ethiopia.
The minister said Ethiopia’s project, which is of
Class II, costs Sh327.6 million per kilometre while Kenya’s Class I
railway will cost Sh249.8 million per equal distance.
Hellen Mungania, Kenya Railways Corporation
secretary, said the agreement overrides provisions of the Procurement
Act. She said that since the China’s Exim Bank is providing the
financing, its rules and conditions govern the procurement.
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