Multibillion-shilling tender fights derail poll planning

The electoral agency is in a legal quagmire following vicious fights between multinationals over multibillion-shilling tenders for supply of materials. 

The firms are eyeing the Independent Electoral and Boundaries Commission’s Sh40 billion budget for the 2022 General Election. 

The Public Procurement Administrative Review Board’s yesterday stopped a Sh2.7 billion tender for printing of ballot papers that had been awarded to a Greek firm, Inform Lykos (Hellas) SA. 

Just days ago, the High Court had overturned the board’s cancellation of a lucrative tender for purchase of ICT tools. 

The Greek firm won the tender on October 14, beating Dubai-based Al Ghurair Printing and Publishing LLC, which had the 2017 deal.

The board’s order was prompted by a complaint filed by one of the interested bidders, Shailesh Patel, trading as Africa Infrastructure Development Company. It complained that the contract was won unfairly and was awarded unlawfully.

It’s a three-year deal for supply of ballot papers, registration of voters, statutory election result declaration forms to be used in polling stations and election and referendum result declaration forms. 

Procurement process

“IEBC contravened Article 227(1) of the Constitution by commencing and conducting the procurement proceedings in a manner that is unfair, inequitable and uncompetitive by providing that no joint ventures would be allowed, which would otherwise have enabled bidders to augment their capacity and qualification,” stated the company in its application.

The aggrieved firm wants the tribunal to annul and set aside IEBC’s verdict. Also sought is an order for termination of the procurement process and one that orders the commencement of a new one.

It argued that IEBC offended procurement rules by disclosing the reasons why other bidders were unsuccessful, instead of doing so privately. The company said the information was not supposed to given to third parties.

It also alleged that commission failed to protect and uphold the confidentiality of the procurement process, particularly by failing to prevent disclosure of information relating to the evaluation of the bids in the subject tender to third parties.

For instance, the company claimed that on October 16, it received an email from a whistleblower who made sweeping allegations against the conduct of the IEBC in the subject tender.

It said contents of the email call into question the confidentiality and integrity of the procurement process. Last Friday, a Nairobi court allowed the commission to continue with its plan to procure the Kenya Integrated Elections Management System (Kiems) kits and other election materials. 

Interested bidders

The review board had cancelled the tender on September 1 after finding that IEBC had not followed the law while shopping for a new ICT system. The gadgets will be used to identify voters and transmit results.

The decision of the board was as a result of a request for review lodged by one of the interested bidders, Risk Africa Innovates Limited.

But Justice Jairus Ngaah quashed the decision after finding that the board erred because the company was not a candidate for the tender. It was thus incapable of instituting a request for review.

“Since no proper application was before it for determination, the board assumed jurisdiction which it did not have and, at any rate, it was unreasonable to entertain a party, who was no more than a busy body in the purported request for review proceedings,” said Justice Ngaah.

The court found that the firm obtained the documents on August 3 when the tender had long been closed. 

“A person who obtains the tender document after the tender closing date cannot, by any stretch of imagination, be said to be a ‘candidate’ as defined in the Public Procurement and Asset Disposal (PPAD) Act,” stated Justice Ngaah.

Indra Soluciones Tecnologias De La Informacion, Smartmatic International Holding B.V, Genkey Solutions BV, Laxton Group Limited and Africa Infrastructure Development Company had submitted their bids.

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