The Sh6.5 billion procurement of election technology for the 2027 General Election has run into a fresh dispute after a local company moved to block the process, alleging that some of the conditions set by the electoral commission could give an advantage to a South Korean firm.
Galadirel Investment Limited has filed a case before the Public Procurement Administrative Review Board (PPARB), asking it to stop the Independent Electoral and Boundaries Commission (IEBC) from proceeding with the purchase of an Integrated Elections Management System (IEMS) and related equipment.
The company says the tender contains requirements that closely resemble the previous experience and achievements of Miru Systems, a South Korean technology company. Galadirel argues that the conditions could limit competition by making it difficult for other firms with the required capacity to qualify.
Represented by lawyers David Musyoka and Julius Miiri, the company raised the concerns before the board chaired by Alice Oeri.
One of the requirements under challenge requires a bidder to have at least five years' experience providing election technology, devices, hardware and accessories.
Galadirel is also opposed to a condition requiring bidders to prove that they have handled at least one election technology contract valued at $50 million, equivalent to about Sh6.5 billion, or more between 2021 and 2025.
The tender further requires firms to show that they supplied at least 50,000 devices to a single client within the same period.
Miiri told the board that the combination of the requirements appeared to fit the track record of Miru Systems.
"It is the applicant's case that the specifications mirror the achievements Miru Systems has attained in previous tenders," he said.
The local company has also questioned the South Korean firm's suitability for the contract, pointing to reports concerning its involvement in the 2024 elections in the Democratic Republic of Congo.
Galadirel claimed that the elections in which Miru Systems participated faced challenges, a matter it says should be considered when assessing the firm's suitability.
IEBC has rejected the accusations, maintaining that the tender conditions were set based on the demands of running a national election and the need for dependable technology.
"The respondents deny the allegation that the specifications contained in the tender document were tailored, directly or indirectly, in favour of Miru Systems Limited," the commission said.
The electoral body has also challenged the manner in which Galadirel has brought up Miru Systems in the case.
IEBC told the board that Miru Systems is not a party to the proceedings and therefore has not been given a chance to answer the allegations being made about it.
Apart from the dispute over the experience requirements, Galadirel has raised questions about other parts of the tender, saying some of the technical provisions are not clear enough.
The company has taken issue with a demand that bidders provide Sh30 million as tender security.
According to Galadirel, IEBC did not provide the estimated value of the procurement, making it difficult to establish why the Sh30 million figure was set.
The company relied on Section 61 of the Public Procurement and Asset Disposal Act, arguing that bidders should be given adequate information to support the amount required as tender security.
Galadirel has also raised concerns over bids that may be submitted in foreign currencies.
It says IEBC has not clearly indicated the exchange rate that will be used, the date on which the rate will apply or the process that will be followed when converting the bids for financial evaluation.
The company argues that leaving those details open could produce different calculations and affect how competing bids are assessed.
Another issue concerns how the proposed technology will work alongside the election systems already in place.
Galadirel says the tender does not provide enough detail on compatibility, interoperability and integration between existing election technology and the systems that will be supplied under the new contract.
IEBC, however, has asked the procurement board to reject the case, describing the application as premature, speculative and incompetent.
Through lawyers Edwin Mukele and Moses Kipkogei, the commission argued that Galadirel should have first approached IEBC for clarification on the disputed provisions instead of immediately taking the matter to the procurement board.
Mukele told the board that procurement rules give bidders an opportunity to seek written clarification on tender requirements at least eight days before the deadline for submitting bids.
"The applicant has not placed any evidence before this board to demonstrate that prior to filing the request for review it requested clarification from the respondent" he said.
He further argued that the application would effectively require the board to alter or rewrite the tender document, which he said falls outside its mandate.
IEBC also rejected the company's attempt to raise questions about Miru Systems' possible participation in the procurement.
Kipkogei said the commission could not respond to claims about whether the South Korean firm planned to submit a bid or whether it had encountered problems while taking part in another country's election.
"Whether they will even participate in the tender, we do not know," he said.
The commission maintained that its focus was to obtain technology capable of supporting the country's election process and that the strict requirements were based on the scale and sensitivity of the exercise.
"Elections in the country are emotive, hence the reason we demand the best," Mr Kipkogei said.
At the same time, IEBC said the procurement would not shut out Kenyan participation.
The commission said the successful bidder would be required to prepare and implement a 40 per cent local-content plan.
The requirement includes the use of Kenyan suppliers and technology transfer as part of the project.
IEBC said it arrived at the decision after conducting market research, which showed that no local company currently has the capacity to develop and deliver election technology of the scale and sophistication needed for the national polls.
The dispute comes as the commission prepares to procure the technology and equipment required for the 2027 election.
Bidders have until September 1 to submit their proposals.
The procurement board is expected to determine whether IEBC followed the law in preparing the tender and whether the conditions complained of by Galadirel create unfair barriers for potential bidders.
The board's decision will determine whether the disputed procurement proceeds in its current form or whether changes will be required before the tender moves to the next stage.