A local firm has taken legal action against the Kenya Pipeline Company (KPC) over a Sh4.9 billion tender for the construction of tanks aimed at enhancing oil flow at its Western Kenya depot.

Leah and Moses Ltd, in a case filed before High Court Judge Bahati Mwamuye, claims the tendering requirements are restrictive and designed to exclude Kenyan companies from partnering with international firms to undertake the large-scale project.

The company’s lawyer, Gordon Abuja, told the court that KPC’s tender documents stipulate that any subcontracting must be done exclusively with local companies.

According to Abuja, this requirement is both illegal and unfair, as it infringes on the constitutional right to freedom of association. He further argued that KPC’s condition discriminates against contractors who wish to engage foreign firms for the project.

“The petitioner’s constitutional right and freedom of association has been curtailed by the respondent without justification. This is likely to prevent the petitioner from submitting a competitive bid,” Abuja submitted.

In March this year, KPC advertised for bids concerning the engineering, procurement, and construction of tanks, along with the enhancement of interflow rates at its Western Kenya depots.

Bidders for the first lot were required to provide Sh10 million as bid security, while those bidding for lot two had to submit Sh8 million, and lot three bidders were to provide Sh2 million.

However, Abuja told the court that for companies intending to partner with foreign firms, bidding would be a futile exercise due to the restrictive conditions, effectively locking them out of the process.

He said that Leah and Moses Ltd had raised the issue with KPC, requesting a revision or removal of the contested clause in the tender documents. However, KPC allegedly ignored the plea. “The respondent’s failure to amend the tender document despite being requested to do so by the petitioner only confirms its intention to proceed with an unlawful and unconstitutional procurement process.

“If not halted by this Honourable Court, the respondent’s actions will amount to an unfair and unlawful public procurement process that violates fundamental rights and freedoms under Article 36 of the Constitution,” Abuja added.

In his supporting affidavit, Leah and Moses Ltd director Jordan Kiprono stated that allowing partnerships with both local and international companies strengthens bidders’ financial and technical capacity. He argued that KPC’s position unjustifiably limits this right.

According to Kiprono, the directive essentially prevents any bidding company from subcontracting to either local or foreign entities.

“The petitioner maintains that it has at all times been ready and willing to submit its bid. However, such a bid would be reduced to a mere academic exercise,” he stated.

“The respondent’s refusal to allow the petitioner to enter into joint ventures or sub-contract foreign companies, without any justification, is in violation of Section 55 of the Public Procurement and Asset Disposal Act, as well as Regulation 53 of the Public Procurement and Asset Disposal Regulations.”

Leah and Moses Ltd is seeking a court order to stop KPC from proceeding with the tender and to nullify the scheduled closing date.