The Independent Electoral and Boundaries Commission (IEBC) has been barred from awarding the multi-billion shilling tender for supply of ballot papers to be used in next year’s General Election to a Greek firm.
Public Procurement Administrative Review Board barred IEBC from signing the contracts with Inform P Lykos (Hellas) S.A., pending the determination of a review filed by Africa Infrastructure Development Company, which was among the 12 companies that participated in the tender.
Africa Infrastructure Development Company moved to the Board arguing that IEBC flouted the law when it picked only one company to supply the ballot papers, register of voters, election result declaration forms to be used at the polling station and election result declaration forms to be used at the constituency, county, and national tallying centre.
“Under section 168 of the Public Procurement and Asset Disposal Act 2015, the procurement proceedings are hereby suspended and no contract shall be signed between the procuring entity and the tenderer awarded the contract unless the appeal has been finalized,” the Board said.
The company through lawyer Justus Omollo argued that for IEBC to lawfully enter into a framework agreement, the number of selected suppliers or contractors must not be less than seven vendors as stipulated in section 114(1)(c) of the PPAD regulations.
But in the tender, IEBC selected only one supplier, which Mr Omollo said does not meet the threshold required by the law.
The electoral body had initially ruled out joint ventures, a vehicle that has allowed many local firms to ride on and win tenders.
The Greek firm beat 11 other suppliers to win a three-year open international tender that will see it also provide referendum result declaration.
Dr Shailesh Patel Africa, the proprietor of Infrastructure Development Company further said he submitted various requests for clarification of the tender document to IEBC but he says the commission was evasive, particularly on the 40 percent local content.
He said in doing so, the electoral body violated the company’s legitimate expectations by failing to clarify the tender as contemplated in clause 6.1 of the tender document.
“That I verily believe that the respondents contravened section 60(1) of the Public Procurement and Assets Disposal Act by failing to prepare clear and specific requirements relating to 40 percent local content in the subject tender, that give a correct and complete description of the application of 40% local content and that allows for fair and open competition among those who may wish to participate in the procurement proceedings,” Dr Patel said in an affidavit.
The deadline of submission of the tenders was August 13, but it was extended to August 27 and later September 10. The tenders were opened on September 10 and evaluation was conducted.
The tender attracted 12 companies including Al Ghurair Printing and Publishing LLC, Go Inspire Solutions, TALL Security Print Ltd, Inform Lykos (Hellas) S.A., and Africa Infrastructure Development company.
Others were Aerovote Security Print and Electoral Supplies (Ghana), Seshaasai Business Forms PVT Ltd (India), and Kwanginsa Company Ltd (South Korea).
Dr Patel says the evaluation and qualification were unreasonably restrictive as they comprised mandatory requirements both at the preliminary evaluation and technical evaluation.
He says the electoral body failed to provide for objective and quantifiable evaluation criteria in the tender.
“I believe that in the circumstances herein, the respondents have contravened Article 227(1) of the constitution by commencing and conducting the procurement proceedings herein in a manner that is unfair, inequitable, and uncompetitive through providing grossly restrictive qualification and evaluation criteria in the tender documents which entirely comprised mandatory requirements to be met by all bidders,” he said.
The company has further faulted IEBC for disclosing the reasons why other bidders were unsuccessful instead of strictly disclosing to each bidder as to why their respective bids failed.
“The applicant particularly avers that the respondents have contravened section 67(1)(c) of the Public Procurement and Asset Disposal Act by failing to protect and uphold the confidentiality of the procurement process by failing to prevent disclosure of information relating to the evaluation of the bids in the subject tender to third parties,” Mr Omollo said.
The company wants the board to order a fresh process saying it is practically impossible for the IEBC to select seven alternative suppliers in the tender given that all bidders, except one, did not meet the evaluation and award criteria.
In 2017, IEBC picked Dubai-based Al Ghurair Printing for the lucrative deal, but several cases were filed in court challenging the deal. The commission later spent Sh2.5 billion for the deal.
The cost for next year’s general election is expected to rise because of the increase of voters, which has been projected at 22 million from 19.6 million in 2017, once two voter registration exercises is conducted. There is also a provision for more ballots in case of a referendum.