Row over Sh2.5bn ballot paper tender rocks IEBC

A fresh controversy has emerged at the Independent Electoral and Boundaries Commission (IEBC) following the award of a Sh2.5 billion tender to print ballot papers for next year’s elections to a Dubai-based company.

On October 18, the commission, through its Chief Executive Officer Ezra Chiloba, wrote to Al Ghurair printing firm, notifying it that its bid for the supply and delivery of 130 million ballot papers, election declaration forms and poll registers had been accepted.

But the decision has been challenged by a losing bidder who has lodged an appeal at the Public Procurement Administrative Review Board citing irregularities and blowing the lid off one of the most sensitive tenders in the electoral process.

This comes as the process of replacing the IEBC chairman and commissioners enters a crucial stage. The 2013 elections were marred by allegations of procurement irregularities and failure of electronic equipment, denting the commission’s image.

According to the contract terms, the Dubai company is to supply and deliver the ballot papers within 21 days after the window for political parties to nominate their candidates for various elective positions closes on May 8, next year – three months to the August 8 General Election.

This means the company must deliver the ballot papers by May 28, next year.

According to documents seen by the Nation, the Dubai printer was the only one out of the nine bidders who went past the technical evaluation stage and was thus picked automatically.

The other eight firms that placed their bids for the lucrative tender are Ellams Products Ltd (Kenya), Manipal Technologies (India), Paarl Media (South Africa), Kl-hitech (India), Eabaltijas (Lativia), Digital Printing Supply (Italy), Tall Security Printing (UK) and United Printing and Publishing (UK).

It is the South African company that has now lodged an appeal alleging procurement irregularities.

The appeal by Paarl Media, a division of South Africa’s Novus Holdings Ltd, is dated November 7. The company wants the review board to set aside the award and reassess the entire process which culminated in the award of the tender.

FOLLOWED PROVISIONS

On Saturday, Mr Chiloba defended the commission’s decision to award the tender, saying it strictly followed provisions of the public procurement laws.

“We followed the Public Procurement and Disposal Act (PPAD) provisions right from tender notice, evaluation to the award of the same. It is the legitimate right of any bidder to challenge the outcome of a procurement process they may feel not satisfied with,” he said in a statement.

He added: “The commission advertised a tender for supply of ballot papers on an ‘as and when required’ basis, what is known in law as a framework contract. Under such an arrangement, the supply of goods is based on either indeterminate quantities, time or both.” Mr Chiloba said framework contracts have been useful, especially in regard to the procurement of ballot papers for by-elections because they are unpredictable and subsequent timelines are constrained.

“Under such circumstances entities easily go for single sourcing or direct procurement. From experience, that is not an option we would consider.  The previous framework contract the commission operated lasted two years and lapsed in June this year,” the statement further read.

He added that the commission did not wish to comment further on the procurement issue “because it has been contested and the matter is now before the Public Procurement Review Board”.

The CEO, however, noted that the commission had filed its responses to the claim and was confident it would prevail.

Mr Ben Sachs, the Business Development Manager for Novus Holding who spoke on behalf of the aggrieved South African company, said their decision to challenge the award was intended to stop “open fraud”.

“This is a very curious situation. We have appealed and we are expecting hearing to commence on Wednesday (November 23) at 2.30 pm. We have instructed Kenyan lawyers to take over the matter on our behalf to block a second ‘Chickengate’ from happening,” he said from South Africa.

He was referring to the infamous scandal in which officials of the defunct Interim Independent Electoral Commission were accused of receiving bribes from the local agent of disgraced UK printing firm, Smith & Ouzman, to influence the award of tenders. A London court found two directors of the company guilty of corruption related offences. But investigations in Kenya are yet to be concluded.

RESPOND TO INQUIRIES

In its application, Paarl Media cites several irregularities, key among them that the elections body denied them clarifications about the tender process in violation of the provisions of Regulation 43 of the Public Procurement and Disposal Act that require a procurement entity to respond to such inquiries within seven days.

The South African company also argues that IEBC breached Section 58 of the Act as the tender documents did not contain sufficient information to allow fairness, equitability, transparency, cost-effectiveness and competition among the bidders.

“It’s further noted that the customary compulsory public briefing (via pre-bid conference) for a tender of this size and importance was omitted and the absence of this conference has disadvantaged us and other bidders in respect of tender response,” reads the application signed by Mr Sachs.

The petitioner also argues that IEBC flouted the law by failing to issue the notification of award simultaneously to both the successful and unsuccessful bidders.
“The IEBC has also breached section 78 (8) of the Act by failing to disclose in the letter of notification of award issued to the applicant, the reason why his bid was unsuccessful.”

The firm wants PPARB to order IEBC to terminate the tender proceedings, re-tender through a more transparent and participatory process that involves holding of a pre-bid conference.

“Paarl is aggrieved and has suffered loss in that it has been prevented from participating in a procurement that is fair, open and transparent and one that meets the laid-down provisions of the PPDA and the Constitution of Kenya 2010, owing to the fact that the procurement process adopted by IEBC and tender document framed by it is deficient, flawed and defective.”

Curiously, there was no mention of the contentious tender when IEBC officials conducted a high-profile ceremony to open bids for the supply of ballot boxes and other materials to be used in next year’s election at a Nairobi hotel on Thursday, raising questions about the secrecy surrounding the award of this particular tender.

During the ceremony presided over by the IEBC director of supplies Lawi Aura, representatives of various bidding companies were invited and even allowed to ask questions regarding the processes, unlike in the ballot papers’ tender.

There were bidders for 25 other tenders besides the one for the supply of ballot papers that day.

There are also questions why the electoral agency is awarding the tender for the supply of ballot papers before it conducts the final voter registration exercise to determine the number of voters who will participate in the election.

An audit of the voter register is currently under way while another mass registration of voters targeting close to seven million voters is expected in February.

Experts conversant with electoral processes have also raised questions on why the outgoing commission —  a body whose image was tainted by questionable tender deals leading to the last General Election — is in a hurry to dish out tenders before a new commission is constituted.

Previous ballot paper printing tenders were always awarded after the closure of voter registers and orders made after party primaries were conducted. The party primaries are expected at the end of May next year.

PROCESS MUST BE TRANSPARENT

The award of the tender rekindles memories of the “Chickengate” scandal in which members of the IIEC tender committee were accused of sharing information regarding rival bids with the local agent of S&O, one Trevy Oyombra, therefore giving the UK firm insider information to enable it to tailor-make its bid to meet all the required specifications.

On Saturday, Siaya Senator James Orengo demanded that the commission halts all procurement matters until new commissioners are in office.
“The election process must be transparent. Why is someone so much in a hurry to procure ballot papers even before we put down election regulations that will underline the features and the design of the said ballot papers?” Mr Orengo posed.

He said that the new electoral laws require an integrated electoral system and warned that the bidding for supply of ballot papers is part of a wider conspiracy to rig the elections.

“We are amazed by the ongoing procurement craze at the IEBC. In fact, we are shocked that commissioners hounded out of office by the people of Kenya for corruption related allegations and electoral fraud related undertakings are once again in charge of important tender deals before we go to the elections. This is suspicious and we will not tolerate it,” Mr Orengo said.

ODM Director of Elections Junet Mohammed expressed suspicion at the award of the ballot papers’ tender to the Dubai firm, alleging that the directors of its local subsidiary were linked to some government officials.

However, Gatundu South MP Moses Kuria dismissed Cord’s protests, saying the opposition wants the elections delayed.

“I do not want to speak for IEBC because they can speak for themselves. But it is very clear that Cord’s strategy is to scuttle plans for the next election by contesting everything IEBC does,” he said.

“When things are done in good time, there is a problem. When IEBC does things in a rush, again there is a problem. These are people who have panicked and they want to scuttle all preparations for the next election and we will not allow them to do so,” he added.