More than a year after the 2017 General Election, the High Court has ordered a fresh evaluation of the controversial media campaign tender by the Independent Electoral and Boundaries Commission (IEBC).
This follows a finding by High Court judge, Justice Pauline Nyamweya, on October 24 that the tender for strategic communication and media campaign was irregularly done and that IEBC and the Public
Procurement Administrative Review Board (PPARB) failed to observe the law when they awarded the Sh350 million tender to Scanad without paying regard to provisions of the law that gives local companies (with at least 51 per cent shareholding by Kenyan citizens) preference over foreign firms.
The judge also bashed PPARB for ignoring evidence that had been placed before it during the review hearing. Twice, PPARB had endorsed the award of the contract to Scanad while dismissing Transcend’s appeals.
“The applicant’s (Transcend Media) request for Review No. 63/2017 with regard to Request for Proposals for Provision of Strategic Communication and Integrated Media Campaign Consultancy Services be and is hereby remitted to the respondent (PPARB) for reconsideration and re-evaluation of the applicant (Transcend Media) and 2nd Interested Party (WPP Scangroup Ltd) proposals and evidence, including the application of margin of preference, in accordance with the applicable provisions of the constitution and the Public Procurement and Asset Disposal Act,” the judge ordered.
The judge also quashed PPARB’s July 24 ruling that seemed to have given Scanad the greenlight to proceed with the contract.
A contract was signed three days later on July 27 between IEBC and Scanad for strategic communication and media campaign just in time for the General Election.
A date has yet to be set for the court-ordered fresh evaluation and it remains to be seen how the fresh evaluation will be done given that the tasks under the contract could have been concluded by now.
It is the public, however, which could end up paying tens of millions of shillings if the review turns out in favour Transcend Media as the firm will likely claim damages for the wrongful denial of the tender and loss of business.
According to the judge, the failure by both IEBC and PPARB to “lift the veil and find out who the shareholders of WPP Scangroup Limited were”, was an error of the law.
“In the present case the respondent (PPARB) clearly took into account an irrelevant factor of the registration of WPP Scangroup Limited in determining its citizenship status for purposes of Public Procurement and Asset Disposal Act, as a result of errors of law made by the respondent as found in the foregoing,” the judge stated.
By Daily Nation