A Kenyan citizen now wants the Public Procurement Regulatory Authority (PPRA) to investigate and ban Idemia (formerly Safran Identity & Security Limited) from doing business in Kenya.
In a letter to the Authority, the complainant identifying himself with the initials JNW accuses Idemia of engaging in fraudulent practices during the procurement of the Kenya Integrated Elections Management System (KIEMS) for the Independent Electoral and Boundaries Commission (IEBC) for the 2013 and 2017 general elections.
JNW also wants the company to be coerced to reimburse any monies paid to it towards goods and services provided in the tender, owing to its fraudulent nature.
Idemia has changed its identity over three times, metamorphosing from Morpho to the current identity, marred with a series of alleged irregularities.
Morpho was renamed Safran Identity and Security in June 2016. In May 2017 Morpho came together with Oberthur Technologies (OT) which gave rise to OT-Morpho. OT-Morpho was subsequently renamed Idemia in October 2017.
On December 16, 2016, IEBC issued a tender notice for supply, delivery, installation, testing, commissioning and support of KIEMS.
The tender was commenced through open tendering system and IEBC issued tender documents to prospective bidders which indicated that the deadline for submission of tenders as January 9, 2017.
Subsequently, an addendum was issued extending the deadline for tender submission from January 9, 2017 to February 2, 2017.
At the lapse of the deadline for tender submission ten firms submitted their respective bids including Safran Identity & Security Limited, Gemalto SA, Novus Holdings, Lithotec, Super Tech (STL) Limited, Compulynx, Smartmatic, Avante International Technology, Inc, BG Bigradar and Indra.
The companies were to go through preliminary mandatory evaluation, technical evaluation and financial evaluation. Upon subjecting all bids to the evaluation criteria, JNW says that only Gemalto SA met the mandatory preliminary requirements and therefore qualified for technical evaluation.
While the financial evaluation process was pending IEBC purported to terminate the tender through the notice dated February 28, 2017. The termination of the tender was challenged through administrative review proceedings lodged at the Public Procurement Administrative Review Board (PPARB) by Avante International Technology, Inc.
In its ruling, PPARB declared the termination as null and void. The board however gave IEBC liberty to proceed and conclude the procurement process by carrying out a financial evaluation on the successful bidder at the technical evaluation stage, Gemalto SA.
However, IEBC proceeded to terminate the tender by issuing another termination notice dated March 21, 2017.
“The purported termination was on alleged grounds of inadequate budgetary provision, operation of law and substantial technological change,” the complainant alleges.
On March 25, 2017, IEBC issued a letter of intent to engage Idemia for the supply, arguing that it had submitted a revised proposal. It was the same day Idemia (Safran) submitted a revised proposal and was notified of being awarded the tender.
“The Complainant further notes from the PAC Report that IDEMIA was issued an award letter on the same day, being 25th March 2017,” adds JNW.
The complainant accuses IEBC of mischievously creating a “crisis” to warrant use of direct tendering method for acquisition of KIEMS from Safran Identity & Security Limited.
He says that IEBC disobeyed the lawful and binding orders of the Review Board in purporting to procure Safran Identity & Security Limited through direct procurement.
Section 103 of the Public Procurement and Asset Disposal Act permits use of direct procurement “as long as the purpose is not to avoid competition”. In this scenario, there was an outright violation of the Act, since competition was avoided.
Also, the tender was issued to a company that failed to meet the mandatory preliminary evaluation criteria, pointing to influence by external forces.
“Conflicts of interest emerged in the process leading to direct procurement of Safran as proceedings evidenced by MINUTE 1215/03/2017 of the Special Plenary Meeting which shows that Commissioners of IEBC voted in favour of their preferred suppliers,” added the complainant.
Safran Identity & Security Limited signed the KIEMS contract with IEBC on March 31, 2017.
“Safran Identity & Security Limited could not qualify through the open and competitive tender process where it had already failed at the mandatory preliminary evaluation stage. Safran has no history of competitively winning a tender in Kenya for instance on a previous tender for supply of BVR kits to IEBC for the 2013 general elections Safran, under its former corporate name of Safran Morpho, only managed to secure the subject tender through a direct procurement method,” adds JNW.
This writer learns that no tender document was issued to Safran as the basis for preparing its tender. Instead a purported letter of intent received by Safran on March 21, 2017 was sent by IEBC signifying IEBC’s willingness to engage Safran.
Also, no member of staff was appointed for purposes of conducting any negotiations with Safran as stipulated under regulation 58(2) of the Public Procurement and Disposal Regulations.
“Since no tender document was issued to Safran Identity & Security Limited as a basis for submitting its tender there was no valid proposal which could competently form the basis for any negotiations with IEBC for a direct award,” he adds.
Also, under section 11A(a) of the Independent Electoral and Boundaries Commission Act, 2011 the Commissioners’ roles are restricted to formulation of policy and strategy of the Commission and oversight. On the other hand, the secretariat is obligated to perform the day-to-day administrative functions of the Commission and implement the policies and strategies formulated by the Commission.
However, the commissioners influenced the cancellation and award of the tender.
“Accordingly, the Commissioners had no role in procurement approval since it is a duty (pursuant to section 69 of the Public Procurement and Asset Disposal Act) vested upon the CEO and the head of procurement function (who are both employees of the Commission) and does not constitute an oversight role,” adds JNW.
“By descending into the role exclusively conferred upon the CEO and head of procurement function, the Commissioners engaged in manifest conflict of interest as records produced before PAC demonstrates that a vote was taken by the Commissioners on 31st March 2017 to select their respective preferred bidder who would be awarded the subject tender,” he adds.
On November 30, 2017 the World Bank announced debarment of Oberthur Technologies SA (part of Idemia) for a period of 2½ years in relation to “corrupt and collusive practices under the Identification System for Enhancing Access to Services Project (IDEA), a project designed to establish a secure, accurate and reliable national ID system in the People’s Republic of Bangladesh.
Oberthur Technologies SA conceded to having engaged in corrupt practice namely making improper payments to a subcontractor and engaging in collusive misconduct to obtain and modify bid specifications to narrow competition and secure the award of the contract.
Safran Identity & Security Limited merged with Oberthur Technologies SA in May 2017 and formed OT-Morpho.
“The Complainant submits that if the investigation process herein affirms the foregoing complaints of breach of the Public Procurement and Asset Disposal Act PPRA should exercise the statutory powers under section 38(1) of the Public Procurement and Asset Disposal Act to commence proceedings against IDEMIA pursuant to section 41 of the Public Procurement and Asset Disposal Act for debarment of IDEMIA from participating in any public procurement and asset disposal in Kenya for a period of not less than three years as stipulated under section 41(4) of the Act,” concludes JNW.