Blow to IEBC as board revokes Kiems tender
Mercy Mwai and Noah Cheploen
The national electoral agency yesterday suffered a major blow in its preparations for the 2022 election after a multi-billion shilling tender for the supply of voter identification kits was cancelled.
In a judgment, the Public Procurement Administrative Review Board (PPARB) faulted the Independent Electoral and Boundaries Commission for contravening the law in the tender for supply of Kenya Integrated Elections Management Systems (KIEMS) and other election materials.
While cancelling the tendering process that kicked off in May, the board faulted the electoral body for contravening procurement rules such as failure to give specific quantities of supplies that must be sourced locally by foreign tenderers.
The board said the tender document violated the Act and Regulations, 2020 that entitles local contractors’ preference when participating in tenders.
Board has since ordered IEBC to advertise the tender afresh within 30 days and ensure they adhere to the Constitution and procurement laws.
Development is likely to put IEBC under intense pressure to restart the process of securing the kits with the 2022 General Election less than a year away.
The commission had estimated that it would cost taxpayers Sh4.5 billion for the fresh tender, way above the Sh4 billion spent for the August 2017 General Election and a further Sh2.5 billion in the fresh presidential elections held two months later.
“Procuring entities must, therefore, as a matter of constitutional edict, be deliberate in ensuring compliance in order to achieve the intentions of the law to wit; the promotion and development of local industry,” the board ruled.
“The board plays an important role in ensuring procuring entities give effect to this aspiration and will not hesitate to cancel a tender that departs from it.
In the circumstances, the board finds the tender document is in violation of the Act and Regulations 2020 that entitles local/citizen contractors to preferences when participating in the subject tender,” it says.
Board continued: “The law requires all foreign tenderers participating in an international tender to secure at least 40 per cent supplies for citizen contractors prior to submitting a tender, something that IEBC failed to enforce.”
Decision of the board comes after the electoral agency advertised tender for the procurement of the system that is expected to support voter registration, voter identification, results transmission, candidates’ registration and all the aspect of the next poll, which is expected to be even more competitive.
In the advertisement dated April 14 and circulated on IEBC website, the commission gave prospective international firms one month’s notice to bid for the tender to supply the technology.
It further required bidders to provide a bid security from an insurance of financial institution of Sh30 million
Move to advertise for the tender was part of the commission’s efforts to try and correct issues that led to the nullification of the 2017 presidential election by the Supreme Court.
“Commission invites sealed bids from eligible candidates for supply, delivery, installation, testing, commissioning, support and maintenance of KIEMS and supply of hardware equipment and accessories,” read the advertisement.
During the 2017 polls, the Independent Electoral and Boundaries Commission used the KIEMS, which was acquired from Idemia, formerly OT-Morpho.
The system was used alongside the Biometric Voter Registration (BVR) system that was acquired in 2012 for the 2013 election.
Nullification of the tender came after a case was filed by Risk Africa Innovatis Limited, which raised two main grounds in challenging the legality of the tendering process.
It sought to have the board determine that the tender document does not provide for preference margins in favour of local/citizen contractors as required by the Constitution and the Public Procurement and Disposal Act, 2015.
It also maintained that the tender document does not require foreign tenderers participating in the subject tender to source at least 40 per cent of the supplies from citizen contractors prior to submitting a tender. The board ruled in their favour in both instances.
“An order canceling and or annulling the tender document and all procurement proceedings in respects to the entire tender no IEBC/OIT/OO1/21/2021/2021 dated April 14, 2021 for the supply, delivery, installation, testing, commissioning, support and maintenance of the Kenya Integrated Elections Managements Systems and hardware equipment and accessories and the entire procurement process in relation thereto,” reads the prayers from Risk Africa Innovatis.
In the 2017 polls, KIEMS was used to register 19.6 million voters and transfer the data to the commission.
However, on election day, there were technology hitches, which contributed to the nullification of the presidential election by.
Procurement of KIEMS was also riddled with boardroom wars within the commission and also external forces that included vendor wars and political players, who were pushing for rival bidders.
Tender was challenged at the Public Procurement Administrative Review Board where the commission was ordered to proceed and award it to the lowest evaluated bidder.
This was not, however, possible as the commission abandoned the tender processes and opted for direct procurement with IDEMIA that had worked with the commission since the 2013 elections.