The printing of ballot papers for the 2027 General Election has been thrown into uncertainty after the High Court stopped further action on a tender whose qualification rules have been challenged by a local company.
The case pits the need for firms with a proven record in large-scale security printing against demands for greater involvement of Kenyan companies. Oilmax Ventures Ltd has gone to the High Court after the Public Procurement Administrative Review Board (PPARB) dismissed its complaint over the conditions set by the Independent Electoral and Boundaries Commission (IEBC).
The commission advertised the tender on August 11 for the supply and delivery of ballot papers, tactile folders, the Register of Voters and statutory election result declaration forms for the 2027 election.
Among the contested conditions is a requirement that bidders must have completed at least two previous security-ballot printing contracts within the past five years, with at least one involving 150 million ballot papers.
IEBC also required bidders to show an average annual turnover of Sh6 billion over the previous three years and access to Sh10 billion to meet supply cash-flow needs through working capital.
Oilmax challenged the conditions, arguing that they are restrictive, discriminatory and out of proportion to the procurement.
However, PPARB rejected the complaint on September 3, saying the company had failed to prove its claims. The board accepted IEBC’s position that the 2027 election will require about 168 million ballot papers in total.
It found that the 150 million ballot requirement represented about 89.3 per cent of the estimated need and was linked to the size of the contract. The board acknowledged that the conditions were “demanding” and that “some suppliers” would not be able to meet them, but still upheld the experience requirement.
It also upheld the Sh6 billion annual turnover condition and the Sh10 billion cash-flow requirement.
Oilmax has now raised another concern before the High Court, focusing on the requirement that 40 per cent of the contract be sourced from, or sub-contracted to, local Kenyan manufacturers or citizen contractors.
The company argues that the experience and local content conditions may be difficult to satisfy at the same time. According to Oilmax, international companies with the required record in printing large quantities of ballots may not meet the local content condition, while Kenyan companies that could meet the local content requirement may lack the required history of printing ballots on such a scale.
Company director Mohammed Ali says the tender’s 40 per cent local content condition creates a conflict with the experience requirement.
He identifies Al Ghurair Printing & Publishing LLC and Inform Lykos as international suppliers he says are capable of meeting the 150 million-ballot experience threshold.
“The internal contradiction renders Requirement No.2, read together with the local content requirement, irrational in that no reasonable procuring entity, properly directing itself to the object of Article 227(1) of the Constitution (a procurement system that is fair, equitable, transparent, competitive and cost-effective), would prescribe qualification criteria that are, on their face, incapable of simultaneous fulfilment by any single tenderer,” he argues.
Oilmax says the local content question was not fully presented before the procurement board and that PPARB did not determine how the two conditions should work together.
The company has also referred to another IEBC procurement dispute handled by a differently constituted PPARB panel on September 3. It says that case, involving the integrated elections management system tender, treated the 40 per cent local content requirement as mandatory for foreign bidders.
Oilmax wants the High Court to overturn the board’s decision to the extent that it upheld the requirements on previous experience, financial capacity and financial capability.
It is also seeking orders stopping IEBC from receiving, opening, evaluating or awarding the ballot printing tender using the disputed conditions.
The company wants the electoral commission to align the qualification requirements with the local content condition. It is further asking the court to declare the experience requirement, when read alongside the local content rule, incapable of being lawfully and practically met by one tenderer.
Justice William Musyoka has granted Oilmax leave to pursue the judicial review case and suspended further steps in the procurement process.
The judge directed the parties to proceed through written submissions, with a compliance mention scheduled for October 7 and judgment set for October 16.
The High Court suspension came after PPARB had earlier extended the deadline for submission and opening of tenders by at least seven days from September 3.
The procurement board also identified a separate problem in the tender document relating to tender security. One section allowed security issued by a reputable financial institution or insurance company, or a banker’s cheque, while another mandatory evaluation provision referred specifically to a bank guarantee.
The court case therefore leaves the IEBC ballot printing procurement on hold as the parties contest whether the qualification conditions can meet the constitutional requirement for a fair, equitable, transparent, competitive and cost-effective procurement process.