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Also sought is an order quashing a decision requiring the Independent Electoral and Boundaries Commission to retender Kiems in 30 days.
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The company has sued the review board and listed IEBC and Risk Africa Innovates Limited as interested parties.
Image: FILE
An international company seeks to stop retendering for supply and maintenance of the Kenya Integrated Elections Management System for 2022 polls.
Also sought is an order quashing a decision requiring the Independent Electoral and Boundaries Commission to retender Kiems in 30 days.
In a suit filed in court under a certificate of urgency, Smartmatic International Holding BV, which is one of the bidders, is challenging the decision by the Public Administrative Review Board requiring retendering for Kiems supply and installation.
The company has sued the review board and listed IEBC and Risk Africa Innovates Limited as interested parties.
According to suit papers, on September 1, the board, in disregard for the principles of natural justice, nullified the tender and directed the IEBC to prepare a fresh tender within 30 days from the date of its decision.
The effect of the decision is that the entire procurement process for the tender in question is halted to the disadvantage of Smartmatic International.
And as a result, Smartmatic will suffer substantial irreparable loss if the decision by the board is not quashed, the High Court has been told.
Smartmatic is apprehensive that Risk Africa Innovates Limited is likely to use the decision of the review board to demand disqualification of the former, as well as other bidders.
The tender was first advertised in April and its opening was conducted on June 18. Eight companies, excluding Risk Africa, bid.
As of August 13, the IEBC had yet to conclude the procurement process and it did not send notifications of the award to the bidders.
However, Risk Africa is said to have requested a review the same day on the basis that IEBC’s tender document failed to explicitly provide for preference margins and a transparent evaluation criterion that incorporates preference margins in favour of local contractors.
The case was heard and determined by the review board, which nullified the tender documents. But Smartmatic now says the review board acted without jurisdiction and misdirected itself.
“…the respondent (review board) clearly misinterpreted the date of occurrence of a breach within the meaning of Section 167 (1) of the Public Procurement and Asset Disposal Act by holding that it would be shrinking its responsibility if parties were to be turned away from the seat of justice merely because they discovered a breach of law after tender opening,” the court was told.