Independent Electoral and Boundaries Commission (IEBC) has been ordered to review its tender for the procurement of technology to be used in the 2027 General Election after the Public Procurement Administrative Review Board (PPARB) found deficiencies in the document’s evaluation criteria and technical requirements.
The board said the tender, as drafted, did not sufficiently explain how compliance with technical parameters would operate alongside the weighted scoring system, creating uncertainty that could allow evaluators to award different scores to materially similar proposals.
“The tender document ought to clearly state whether compliance with every individual parameter is mandatory or whether alternative means of demonstrating compliance are permissible,” the board said.
Where a specification contains several requirements, the board said, the tender document should also make clear whether all the requirements must be met or whether compliance with a specified number or combination would be sufficient for a tender to be considered responsive.
The board further directed IEBC to seek advice and technical support from the Public Procurement Regulatory Authority (PPRA) before proceeding with the procurement.
The review should ensure that the requirements are stated with sufficient certainty, the evidence needed to demonstrate compliance is clearly identified, and the evaluation criteria and allocation of scores are objectively ascertainable.
The board directed IEBC to make the necessary corrections, clarifications and amendments to the tender document and subsequently publish a new version, giving prospective bidders the period prescribed by law, but not less than seven days, to consider the amendments and submit their tenders.
The decision followed a challenge by Galadirel Investment Limited, which had sought to halt the procurement, alleging that the tender was discriminatory and contained requirements tailored to favour Miru Systems, a South Korean election technology company.
The tender covers the Integrated Elections Management System (IEMS) and related hardware that will support the Kenya Integrated Elections Management System (KIEMS) kits used for biometric voter identification and transmission of election results.
It is one of two major international procurements floated by IEBC in preparation for the 2027 General Election. The other covers the printing of ballot papers, tactile ballot folders for visually impaired voters, the Register of Voters and statutory election forms.
Galadirel challenged the tender arguing that the tender document contained restrictive requirements that could lock out potential competitors.
The company challenged, among other things, the requirement that bidders demonstrate at least five years’ experience in supplying election technology, devices, hardware and accessories.
Bidders are also required to demonstrate that they have undertaken at least one election technology contract worth at least $50 million between 2021 and 2025 and supplied at least 50,000 devices to a single client during the same period.
The firm argued that the requirements appeared to mirror the experience and achievements of Miru Systems.
“It is the applicant’s case that the specifications mirror the achievements Miru Systems has attained in previous tenders,” the firm submitted.
The board, however, rejected the claim that the mere fact that the requirements were specific to the procurement amounted to unlawful tailoring.
It said a procuring entity is entitled to prescribe the level of experience, technical capacity and professional competence reasonably necessary for the successful performance of a particular contract.
The board said the procurement involves specialised information technology, biometric systems, infrastructure, integration, implementation and ongoing support, the board noted.
“In such circumstances, it cannot be said merely because the respondents have prescribed specific experience and qualification requirements, that they were precluded from requiring a tenderer to demonstrate previous experience of a comparable nature and scale,” the board said.
The applicant, it added, had not identified a specific requirement that only Miru Systems could satisfy, nor demonstrated that the combination of experience, qualification and technical requirements had deliberately been formulated around Miru Systems’ corporate profile.
However, the board found problems with the methodology for awarding technical scores.
It said the issue was not simply that criteria were assigned scores within ranges, but that the tender document did not sufficiently disclose the methodology or objective benchmarks evaluators would use to determine the particular score awarded within those ranges.
For example, the board said, one tenderer could demonstrate relevant experience in the Kenyan administrative system but lack working-level fluency in a local language, while another could demonstrate language proficiency but have limited knowledge of the Kenyan administrative system. A third tenderer, the board said, could demonstrate both.
The tender document did not explain how these different attributes would translate into particular scores or provide objective benchmarks for distinguishing between, for example, two, seven or 10 points.
“The tender document must disclose sufficient parameters to enable tenderers to understand how a particular level of compliance, quality, experience or competence will translate into the score awarded,” the board said.
The board said uncertainty was material because the technical evaluation carries 100 points and bidders must attain a minimum technical score to proceed.
A bidder’s success or failure could therefore turn on points awarded under criteria for which the tender document had not provided a sufficiently definite scoring methodology.
The board also found deficiencies in the way some mandatory requirements were framed and said the tender document should clearly identify the precise documents or standards that prospective bidders were required to provide to demonstrate compliance.
On technology ownership and manufacturer authorisation, the board said IEBC was entitled to require evidence of ownership or manufacturer authorisation.
The problem, it said, was the failure to clearly establish the relationship between ownership and dealership and the evidence required to demonstrate compliance.
“Where a qualification is intended to operate as a mandatory requirement, the tender document ought to make clear both the requirement itself and the objective evidence upon which a tenderer will be found compliant or non-compliant,” the board said.
The board said it was not questioning IEBC’s discretion to require a master’s or bachelor’s degree for a project manager. Rather, the issue was whether the tender document gave bidders sufficient information on the evidence they were required to submit and provided evaluators with a uniform basis for determining compliance.
The board cited Section 70(6)(a) of the Public Procurement and Asset Disposal Act, which requires evaluation criteria to be disclosed and, to the extent possible, to be objective and quantifiable.
“Having specifically drawn them to the attention of the parties and afforded them an opportunity to be heard thereon, we consider it appropriate to direct that the respondents address and clarify the identified deficiencies before proceeding further with the procurement,” the board said.
