Prisons face food crisis over tender row

Tuesday, June 9th, 2020 00:00 |
Some Kenya Prisons suppliers demonstrate in Uhuru Park, Nairobi, early this year to push the government to settle their pending bills. Photo/PD/SAMUEL KARIUKI

A food shortage crisis is looming in Kenya’s prisons and remand homes following a High Court decision to halt a multi-billion-shilling tender.

The court order follows a petition by a Kiambu-based civil society, which claims the tendering process for the supply of essential commodities including food, is a scheme by top officials in the Prisons Department, which falls under the Ministry of  Interior and National Co-ordination, to pilfer public resources.

In a ruling delivered last Friday, Lady Justice Pauline Nyamweya granted an order quashing the decision by the Principal Secretary, State Department of Correctional Services, to advertise through the print media inviting bids for tenders for the year 2019-2020, with an existing tender already in place for the same period.

As the events unfold, the department, which takes care of more than 57,000 inmates in correctional facilities across the country, is reeling from controversy over a Sh6 billion debt owed to suppliers.

Suppliers accuse the PS of delaying the payments one year after President Uhuru Kenyatta directed that the money be released.

Overpriced items

In a plaint filed by Daniel Ng’ang’a Wanyoike, the PS is accused of issuing skewed tenders and over-pricing items contrary to the law.

“The bias is quite evident as the respondent awarded specific favourite companies numerous awards in numerous counties with some receiving tender awards in up to 14 counties for only one company thereby infringing to fair administrative action in a compilation of some of the favoured companies as exhibited in the published and undated list of awarded companies,” he says in his affidavit filed in court.

The petitioner states that in June 2019, the PS, through daily newspapers, advertised a tender notice for supply and delivery of dry foodstuff, milk products, fruits, vegetables, meat products and wood fuel for the year 2019-2022.

“The tender awards were put in a design which will lead to loss of public funds; the prices were ridiculously increased...

A bag of 90kg millet flour is to be supplied at Sh1,000 per kilogramme, therefore, a company will after supply and delivery, claim Sh90,000 for a bag a 900 per cent overpricing considering the same costs in the retail market around Sh70 to 90 per kilo with a  90kg bag going for between Sh7,000 and 8000 retail price,” he states.

Sources that spoke to the People Daily, Commissioner General of Prisons Wycliffe Ogalo, was bypassed in the award of the tenders with some even being handled at the county levels instead of the ministry’s headquarters.

In one case, a tender was split and a company which had bid to supply pharmaceuticals was only awarded a tender to supply Aspirin tablets at a cost of Sh15 per tablet, which goes for about Sh1 in off-the-counter pharmacies.

Publish list

Wanyoike told the court that despite the controversial tenders having a clear date on when the bids were to be opened, the respondent (PS) failed to honour this date and only took advantage of Covid-19 lockdown to publish in April 2020 undated list of successful bidders in the departments’ website only indicating that those bidders not appearing on the published list to consider their bids unsuccessful.

“Despite publishing this undated list in the month of April, the respondent sent notification award letters to some of the successful bidders which were backdated to January 15, 2020 thereby blocking and denying the unsuccessful bidders a chance to appeal to the relevant body considering that the time for appeals had lapsed as per the procurement law,” he says in his petition papers.

The petitioner adds that despite the unsuccessful bidders having an arguable case and knowing that the only channel for appeal had been blocked by the respondent they resorted to take their frustration to the media asking the relevant authorities to look at their plea and cancel the bias tender awards of 2019-2022 and exhibit marked DNW4 is an extract from Nation newspaper of April 2020.

“This is a pointer that either the respondent never conducted market survey or if it was done, the respondent could have sidestepped its findings or it is outright stealing of public funds through over pricing.

In short this is the formative stage of a mega scandal and this honourable court should help and avert this mega scandal by allowing my prayers,” said the activist in his affidavit.

He asked the court to grant an order of mandamus to compel the respondent to cancel the first invitation to tender for the year 2019-2020 before any subsequent advertising for the same period.

Mandamus is a judicial remedy in the form of an order from a court to any government, subordinate court, corporation, or public authority, to do some specific act which that body is obliged under law to do, and which is in the nature of public duty, and in certain cases one of a statutory duty.

His wish was granted by Justice Nyamweya, who directed that the matter be heard on July 6, 2020. The PS was ordered to file and serve her response to the court within 14 days.

The payment of the Sh6b to suppliers has been pending since 2018 with claims that the bills were being verified following revelations of payment for “air” in the Sh4.8b classified tenders in the department.

 The PS ordered a stop to payments of all pending bills and cancelled award notifications to suppliers.

Since then, the affected suppliers have been waiting to be paid but it now seems they will not get a penny until the Treasury gives them a clean bill of health.

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