The Independent Electoral and Boundaries Commission (IEBC) is set to amend its tender for a new elections management system after discovering that one of the financial requirements imposed on bidders was above the legal limit.
The commission told the Public Procurement Administrative Review Board that it had mistakenly placed the performance-security requirement at 20 % of the contract price, twice the maximum percentage permitted by law.
IEBC said it was preparing an addendum to rectify the provision and bring it within the statutory limit of 10 per cent.
The disclosure emerged during a procurement battle over the tender for the Integrated Elections Management System (IEMS), with one of the companies seeking to have the process stopped accusing the commission of publishing a document containing several uncertainties.
While the commission acknowledged the error, it maintained that the mistake did not invalidate the entire procurement and defended the other contested provisions.
Among the issues under attack is the Ksh30 million tender security demanded from bidders.
IEBC argued that the figure should not be assessed in the same way as security tied to an ordinary procurement because the IEMS tender is structured as a framework contract. The commission’s position is that the applicable procurement rules allow tender security in such an arrangement to be prescribed as a fixed sum.
The commission also pushed back against allegations that the specifications were crafted with a particular bidder in mind.
Galadriel Investments Limited has claimed that some of the requirements give an unfair advantage to Miru Systems Limited. IEBC, however, told the Board that the allegation had not been backed by identification of a specific requirement that would confer such an advantage.
Instead, the commission defended the demanding nature of the technical evaluation.
IEBC said the tender was not designed to allow a bidder to compensate for failing a mandatory requirement by performing better in another area.
“It’s either you are compliant or not,” the commission argued, adding that a successful bidder must achieve “hundred percent” compliance with the mandatory technical requirements.
The dispute has also brought the treatment of foreign bidders under scrutiny, particularly on taxation.
IEBC’s position is that international companies should demonstrate tax compliance through the documentation recognised in their respective jurisdictions rather than being expected to produce a Kenyan tax certificate simply because they are foreign bidders.
The commission has also highlighted a local participation requirement under which the successful bidder will be expected to meet a 40 % local-content threshold.
IEBC says the provision is intended to ensure that the multi-million-shilling procurement creates opportunities for Kenyan businesses and supports the transfer of skills and expertise.
But Galadriel has questioned the overall structure of the tender, arguing that prospective bidders were not given sufficient information to prepare bids on a common and transparent basis.
In its application, the company points to the absence of a stated tender value despite the Ksh30 million security requirement.
“There is no value of the Tender provided despite the Respondent issuing a tender security value of Kenya Shillings Thirty Million,” the company argues.
Through lawyer Julius Miiri, the applicant further contends that the tender contains “material omissions, contradictions, undefined requirements and incomplete provisions”.
Galadriel says these shortcomings could affect how bidders compete and how their proposals are ultimately assessed, arguing that they undermine equal treatment and the comparability of bids.
The company has therefore asked the procurement tribunal to intervene, while IEBC wants the challenge dismissed and the suspension currently affecting the procurement lifted.
The Review Board is expected to issue its decision within 21 days, determining whether the commission can proceed with the tender or will have to make further changes beyond the correction it has already acknowledged.
