How IEBC crossed ballot papers tender hurdle

By Wahome Thuku

Nairobi, KENYA: The delivery of ballot papers for the March 4 General Election at the weekend was a great relief to Independent Electoral and Boundaries Commission (IEBC).

The commission had just crossed over a major hurdle in a controversy over its contract with British firm Smith and Ouzman for the supply of ballot papers.

IEBC signed the Sh1.6 billion contract with the security firm in November through single sourcing to supply and deliver ballot papers and statutory result forms for the elections. That did not go well with two other firms Kalamazoo Secure Solutions and Ren-Form CC who felt they had ben left out in the lucrative deal.

The companies filed separate petitions at the High Court seeking orders to have the contract revoked.

The petitions were consolidated and heard by Judge George Odunga.

The companies argued that IEBC could only resort to the direct procurement upon satisfying conditions set out in the Public Procurement and Disposal Act 2005 for single sourcing. It had not satisfied the conditions since there were other companies that could deliver the same material and services.

The firms claimed IEBC knew all along the elections would be in March 2013 hence they had ample time to conduct open tendering as provided under the law.

“Instead of moving with speed to procure the services, they waited until a date close to the elections only to claim they did not have sufficient time to carry out normal procurement process,” they submitted.

The companies argued there was still sufficient time for the commission to carry out procurement in adherence to the legal provisions.

Avoid Competition

On its part, IEBC argued that it had constitutional functions and the decision to procure goods and services directly was not one of those that was subject to the supervision by the High Court. “There is no allegation that the commission has exceeded its mandate or authority or acted in breach of the Constitution or the parent statute,” their lawyer Anthony Lubulella argued.

He said by entertaining the case, the court would be usurping the powers of Public Procurement Review Board, which could deal with the dispute. IEBC said there was no evidence to show they used single sourcing method to avoid competition.

The award of the tender was notified to the Public Procurement Oversight Authority and that the cost was the prevailing real market price. The commission asked the court to consider public interest in the elections.

“The sovereignty of Kenya people demands that they are allowed to exercise their political rights under the Constitution by participating in the elections,” Lubulella argued saying the decision to single source supply of ballot papers was not unreasonable since the commission had strict timelines within which to organise elections.

Besides, the contract had already been signed hence prohibition sought would not serve any useful purpose.

The commission urged the court to consider that the law does not exist in vacuum but within a context of social, political, economic and cultural set of facts and realities.

The public interest in preserving the procurement of the ballot papers outweighs any persuasions to disturb the same and that as a matter of public policy, public projects that are underway should be expeditiously concluded and public funds be saved particularly on projects or contracts of national importance notwithstanding issues the applicant may have with the tendering process. Such applicant can always pursue damages which in contract are quantifiable,” their lawyer submitted.

Attorney General, who had also been named as respondent, supported the position.

Smith and Ouzman, who were named as interested parties, argued that the contract was signed in accordance with the procurement law hence no legal provisions were violated.Through their lawyer Philip Nyachoti, the company said they had no hand in the choice of procurement method to be used by IEBC, who had final say of the procurement procedure to be used.

Nyachoti said the contract was not fraudulently obtained since it was executed after wide consultations based on negotiations between concerned parties. “Since interested party has supplied similar materials before, they have the necessary experience and capabilities to undertake the tender in question,” Nyachoti told the court.

Judge Odunga had no difficulties dealing with the dispute. “Where the procuring entity intends to proceed by direct procurement, it ought to do so without the intention of avoiding competition and further it must satisfy the criteria that there is an urgent need for the goods, works or services being procured. That because of the urgency, the other available methods of procurement are impractical and that the circumstances that gave rise to the urgency were not foreseeable and were not the result of dilatory conduct on the part of the procuring entity,” Odunga held.

Election date

He said there was no evidence that IEBC did direct procurement to avoid competition.

Odunga said simply because IEBC knew of the election date having set it, it did not mean it had funds for it as it’s funded by the State.

“I am not satisfied that the commission took unnecessarily too long to put the machinery for procurement of the subject materials into motion,” he said. The judge, however, observed IEBC had not considered open tendering. He added, “In line with principles of openness expected in a democratic society, it is my view and I so hold that before deciding to resort to single sourcing in the form of direct procurement, a procuring entity ought to consider the other methods and opt for one with less inconveniences but one which also upholds democratic principles. To fail to consider the available alternatives not only amounts to being unreasonable but also irrational,” he said.

The judge went on; “As we speak now, we have less than a month to elections. The people of Kenya have invested resources in form of time and energy, physical, spiritual and emotional to go to the ballot box and elect their leaders. To direct the commission to restart the process afresh with the uncertainty and anxiety it is likely to generate in my view will not augur well for the future of this country. The rights of the applicants must, therefore, be balanced against the interests of the over 40 million Kenyans, who wish to exercise their sovereign rights by delegating their powers to their democratically elected representatives as provided under Article 1 of the Constitution.”

The judge pointed that while the applicants were not candidates to the tender, there was no certainty that they would have won it.

“Balancing their interests on one hand with the interests of the public, I agree with the commission’s position that to grant the orders sought would, therefore, not only be unreasonable and reckless, but would be tantamount to playing roulette with the lives of our nation and its people,” Odunga said.

With that, he dismissed the two applications, clearing the way for Smith and Ouzman to supply the electoral materials.