The Procurement Review Administrative Board has ordered the electoral agency to float a fresh tender for the supply of the Kenya Integrated Elections Management System within 45 days.
The Independent Electoral and Boundaries Commission, in the process of procuring the state-of-the-art information system for use in the 2022 general election, set the local preference margin at 15 per cent.
Firm trading as Risk Africa Innovations Limited, which did not bid, challenged the process, accusing the IEBC of breaking the law by setting 40 per cent preference award to local contractors.
In an affidavit, Henry Mien, a director at the firm, argued that the IEBC sought to define the local content to a maximum of 15 per cent.
He argued that the tender document was unlawful, citing failure to comply with the procurement law, which the IEBC challenged, saying “the bidder should provide a detailed support and maintenance plan by attaching documentary proof of ICT technical support staff with a local registered office in Kenya.”
The board concurred that IEBC did not provide that foreign companies participating in the tender outline how they will source 40 per cent of their supplies locally.
“The procurement entity has the mandatory duty to ensure that the preference margins are clearly spelt out in the tender documents,” the board, chaired by Faith Waigwa, said.
“This serves the purpose of notifying and encouraging eligible local and citizen contractors who may qualify for preference margins to know in advance and the parameters that will be used to apply the same.”
The board has faulted the IEBC for purporting to prescribe for themselves applicable margins other than those prescribed in the procurement regulations.
“In line with the principles of accountability and transparency in public procurement, the same cannot be left to the vagaries of conjecture and speculation,” the board said.
“It is apparent that the tender document makes no mention of the specific quantity of local supplies that must be sourced locally by foreign tenderers as required by section 157 of the Act.”
The board said that in the circumstances, “the tender document violates the Act and Regulations 2020 that entitles local or citizen contractors to preferences when participating in an open tender."
It established that the tender document failed to provide that all foreign tenderers participating in an international tender secure at least 40 per cent supplies for citizen contractors before submitting a tender.
The IEBC floated the tender to undo the wrongs cited by the Supreme Court ruling that nullified the 2017 presidential election pitting political rivals-turned-allies President Uhuru Kenyatta and ODM leader Raila Odinga.
But the efforts have been temporarily hitched, with the Public Procurement Administrative Review Board ordering a fresh tender within 45 days of its September 1 ruling following the anomaly.
“The procuring entity is hereby directed to prepare a fresh tender document within 30 days from the date of this decision,” the board ruled.
Election experts are concerned that IEBC is already facing a time crunch ahead of the 2022 vote, barely 350 days away, considering that the procurement cycle takes about 90 days.
Elections Observation Group national coordinator Mule Musau said the time factor opens the floodgates for litigations as people will be asking questions about the process.
“One of the things we think about on timelines is to expect that there will be litigations. Such is the environment that we have,” he told the Star on Thursday.
Mule said the ruling would constrain the IEBC’s "timelines since the purchase process takes around three months …and would likely be concluded towards the end of the year.
“This is where you track how much time would be available for the commission to prepare. The process doesn’t end with the completion of the procurement process.
“There is the bit of deployment, testing the equipment, training the people who will handle the same, and time to engage stakeholders in understanding the equipment,” the Elog boss said.
He cited the immense public interest in the equipment among the electorate, as well as civil society, media and other concerned stakeholders.
“The impact of the ruling will constrain the timelines and preparations further. The IEBC has its work cut out in terms of preparing for the next election,” Mule added.
During the 2017 General Election, the IEBC awarded the Kiems tender to OT Morpho after the procurement process ran into similar challenges as reported with the current purchase plan.
The board directed that the tender consider the provisions of the Constitution, the Public Procurement and Disposal Act, the Regulations 2020, and its findings in the review.
“The procuring entity is hereby directed to retender for the supply, delivery, installation, testing, commissioning, support and maintenance of Kiems and hardware equipment and accessories within 45 days from the date of this decision.”
The ruling further reveals that OT-Morpho, which supplied the Kiems kit in 2017, had not bid for the tender by the time the process was stopped by the board.
Indra Soluciones Tecnologias De La Informacion, Startmatic International Holding B.V, Genkey Solutions BV, Laxton Group Limited, and Africa Infrastructure Development Company submitted their bids.
Edited by Kiilu Damaris
