CS, former IEBC officials linked to election materials tender wars

Intrigues in the Independent Electoral and Boundaries Commission (IEBC) tender for election materials continues to deepen after a firm challenged the decision to pick a Greek firm, Inform P Lykos Holdings, to print ballot boxes.

Sources at IEBC indicate that a Cabinet Secretary and former senior officials of the electoral agency are keen to delay the procurement of the tenders to pave way for single sourcing and direct tenders for the multi - billion deals as it happened in 2013 and 2017 elections.

According to a senior IEBC official who sort anonymity, a new commissioner allegedly sought to convince a committee in charge of Finance and procurement in a meeting on October 19, that given the cancellation of the tenders they should convince some companies to lower the costs so that they could be declared winners against the Greek Company.

In another meeting on October 28 the same commissioner wrote to his colleagues and the acting Chief Executive Officer Marjan seeking to have them disregard the High Court judgement that dismissed the ruling of the Public Procurement Review Board (PPRB) that nullified and set aside the more than Sh4 billion tender for the supply, delivery and maintenance of Kenya Integrated Elections Management System (Kiems) and go ahead to tender afresh.

On Friday, Justice Jairus Ngaah dismissed the ruling of PPRB that nullified and set aside the Kiems kit tender.

The tender had been awarded to Smartmatic International Holding B.V, The Netherlands-based firm. 

Last month, PPARB asked the electoral commission to prepare a fresh tender document within 30 days for the Kiems kit for tender No: IEBC/OIT/001/21/2020/2021.

“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.

Together with the printing of ballot papers, the tender for supply, delivery, installation, testing, commissioning, support and maintenance of Kiems and hardware equipment and accessories which the board declared illegally awarded are a critical component of the electoral agency.

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.

But, Justice Ngaah said that PPRB misapprehended Section 2 of the Act on who ‘a candidate’ is and whether the 2nd interested party was such a candidate capable of instituting a request for review before it under section 167(1) of the Act.

The judge said that since no proper application was before PPRB, the respondent 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.

"For the same reason, I would say that the proceedings before the 1st respondent were bereft of procedural propriety," he said.

"I am of the humble view that the respondent did not understand the relevant provisions of the Public Procurement and Disposal Act that regulate its decision-making power," he added.

As the judge ruled on the Kiems kit matter, the company that challenged the award of the tender to Smartmatic International Holding B.V went ahead and challenged another multi-million shillings tender for the supply and delivery of ballot papers and register of voters awarded to a Greek firm, Inform P Lykos S A Holdings.

Inform P Lykos Holdings had beat 11 other companies to win a three-year open international tender that will see it also provide election and referendum result declaration forms to be used at the constituency, county and national tallying centre.

The company beat three others from the United Arabs Emirates, Al Ghurair Printing and Publishing LLC, United Printing and Publishing LLC and Masar Printing and Publishing and Kenya’s Ellams Products Limited and Africa Infrastructure Development Company.

Others are United Kingdom’s Go Inspire Solutions and TALL Security Print Limited, UNIPINT, a division of Insidedata (South) PTY LTD, Aerovote Security Print and Electoral Supplies (Ghana), Seshaasai Business Forms PVT Ltd (India) and Kwanginsa Company Ltd (South Korea).

The tender was seeking to replace a two-year contract entered between the commission in 2019 with De La Rue Kenya and EPZ Ltd that included the printing of 20 million ballot papers at Sh397.4 million.

The current fights for the big tenders have for the past two election cycles defined the polls agency operations, ultimately leading to costly polls.

Late and rushed tendering, tender cancellations as well as corruption have also compounded the woes of the electoral agency which saw the country hold one of the most expensive elections in Africa estimated at Sh54.1 billion in 2017.

And yet again, there are tell signs that the 2022 polls will go down as not only one of the most hotly contested but most expensive.

The legal battles over the tenders are not new and in the 2013 and 2017 elections this saw the electoral agency resort to direct tendering.

In the 2017 General Election the massive failure of Kiems kits supplied by French firm OT Morpho put to question the integrity of the exercise.

Previously known as Safran Morpho Limited, and later OT-Morpho –before rebranding to Idemia- it is the company that supplied IEBC with the Kiems kits that were to be used to verify the voters’ list before the election and later authenticate the voters with their fingerprints and photos before being allowed to vote.

But as fate would have it, transmission of results on polling day experienced hitches, leading to the Supreme Court nullifying President Uhuru Kenyatta’s win in 2017. This is after the Kiems kits failed massively on voting day.

The supplied Biometric Voter Registration (BVR) kits failed on election day leading to repeat elections which soared the cost of elections to even greater heights. The repeat election ended up gobbling another Sh12 billion. 

The development followed another in 2013 when the “Chicken gate” scandal emerged and the public lost millions of shillings in the process. It involved Kenyan election and examination officials who were bribed by UK-based printing firm Smith and Ouzman. 

British firm Smith and Ouzman is said to have paid the officials’ Sh50 million to be awarded several printing contracts worth billions of shillings for ballot papers and examinations material in the 2013 General Election.

In January 2016, Kenya was however able to recover Sh52 million lost from the scandal after Smith and Ouzman, the UK firm directors were found guilty of bribing Kenyan election and examinations council officials to win tenders, and were ordered to pay 200 million shillings by a London court.