IEBC taken to court over KIEMS kits tender
Tender wars continue to haunt the Independent Electoral and Boundaries Commission after one of the companies that lost in the supply of Kenya Integrated Elections Management System (KIEMS) kits moved to the Court of Appeal to challenge the decision by the Public Procurement Administrative Review Board to award the deal to a rival company.
Risk Africa Innovatis Limited cautions that KIEMS are a very important component in an election and that the willing vendor must have the capacity to provide full proof of KIEMS that can manage data well to prevent a situation that would leave gaps that can cause a nullification of the elections.
The company states in the appeal that the data migration was not budgeted for when the tender was awarded to a Dutch company Smartmatic Holdings BV.
Further, the procurement was not done with a fully constituted commission since it had only three commissioners by the time.
The company claims that the firm, which won the award, had been cited in other countries including the Philippines, Venezuela, Uganda, Nigeria and US over credibility issues.
The fresh tender dispute comes even as the commission fights another row over a deal to supply print ballot boxes, which was awarded to a Greek firm, Inform P Lykos Holdings.
Last month Risk Africa Innovatis went to the PPARB seeking the cancellation of the tender award but the plea was thrown out.
In his ruling, Justice Jairus Ngaah stated that a candidate, who downloads a Tender Document long after Tender has closed, cannot be deemed a candidate.
He further said that in the circumstances, the firm had no locus standi to institute a Request for Review at the Procurement Board.
“Subsequently, the Respondent had no jurisdiction to entertain a party who is a busy body,” stated Justice Ngaah.
Last month, PPARB asked the electoral commission to prepare a fresh tender document within 30 days for the Kiems kit.
“The procuring entity is hereby directed to prepare a fresh tender document within 30 days from the date of this decision, taking into consideration the provisions of the Constitution of Kenya, the Public Procurement and Asset Disposal Act, the Public Procurement and Disposal and Asset Disposal Regulations, 2020 and the findings of the Board in this review,” read the ruling in part.
Smartmatic International Holding B.V alongside four other companies including Indra Soluciones Tecnologias De La Informacion, Genkey Solutions BV, Laxton Group Ltd and Africa Infrastructure Development Company submitted bids.
The award of USD 19.7 million (Sh2.2billion) to Smartmatic International was announced last Thursday by IEBC acting Commission Secretary Marjan Hussein Marjan.
The commission wants to replace a two-year contract entered held by De La Rue Kenya and EPZ Ltd that included the printing of 20 million ballot papers at Sh397.4 million.
Risk Africa Innovatis in the appeal wants the court to determine the legality of the KIEMS tender and whether with so many discrepancies and legal challenges, it can be awarded.
“The appeals lodged with PPARB highlight discrepancies and irregularities in the tender process. The commission only had 3 Commissioners when the tender was approved for release, they did not have a quorum of Commissioners so tender was not legally approved,” states the appeal.
The appellant argues that IEBC neglected to comply with basic PPARB requirements in the tender, such as 40 per cent local business involvement.
The commission, the appellant says tendered without valid approval to do so in the first place, and with all the legal challenges, more recently the ballot tender being publicly criticized and cancelled, it is unlikely the commission will have the credibility to award the KIEMS tender.
“The commission has shown its inability to complete a clean evaluation and clean award,” states the appellant.