The much anticipated twin court verdicts in the Court of Appeal and the High Court on the controversial award of the Sh1.2billion tender for the automation of the Integrated Customs Management System (ICMS) by the Kenya Revenue Authority (KRA) is expected to set a major precedent affecting existing contracts worth billions of shillings that Trade Mark East Africa (TMEA), a procuring entity on behalf of KRA has signed with other government institutions.
The case before the Court of Appeal was filed by WebbFontaine over the award of the ICMS tender in favour Bull SAS Company.
Majorly, it emerged that TMEA is not pre-qualified by Public Procurement Oversight Authority (PPOA) to act as an agent as required under section 28 0f the PPOA Act on behalf of the state of a government institution.
“On issue (c): was Trade Mark prequalified by PPOA to act as a procuring agent under the provisions of section 28 of the Act: No” PPOA said in a letter dated November 13, 2015.
Further, a private citizen Elias Mugwe has filed a case before High Court Judge Justice Odunga by seeking to have the entire process cancelled citing alleged constitutional procurement flaws in the award of the contentious tender.
Among the key projects signed in the same manner as the challenged ICMS tender include the One Stop Border Post at Busia (Kenya/Uganda) worth over Sh500million (US Dollars 5,466,301), Mombasa port infrastructure work valued over Sh4billion ( US Dollars 45,509,504.19) and Sh2billion) Port Reitz Road in Mombasa.
“The tender subject of the impugned procurement process is valued at in excess of Sh1billion yet the Kenya Revenue Authority is on record as stating before the Public Procurement Administrative Review Board, that it is not the procuring entity in respect thereof and disowning both its Agent in the procurement M/s Trade Mark East Africa (TMEA)… And the fact that the funds to be expended in the matter are public funds, all of which amounts to a preponderous and unsustainable proposition and renders the procurement a nullity and an endeavor in vain.”Mugwe submitted in court.
The same prayer is before the Court of Appeal judges Alnasir Visram, Erastus Githinji and Jamilla Mohamed, and was lodged by Web Fountaine, which argues that Justice Odunga erred when he dismissed its claims last year December.
Although the Public Procurement Review Board (PPRB) struck out the application for review Webb Fontainne Group, the petitioner for filing the application out of time, the board observed that Trade Mark East Africa is a “stranger” in the process and can only serve as KRA agent and not as the lead procuring entity.
Further, board quashed submissions by KRA seeking to exonerate the process from public scrutiny through dismissed submissions that the process only involved grant financing and not public money. The board ruled grant falls under the realm of public money.
“The board wishes to observe that a private company acting independently of a public body cannot purport to carry out a public procurement on behalf of a public body and that if a private company purported to do so, such procurement would be a nullity.”
Towards the end of April last year, TMEA and a delegation from Bull SAS held a highly confidential “negotiation” meeting with top managers of the awarded firm.
The meeting took place on April 27 last year three days before TMEA sealed the lucrative deal.
Two rival firms, Webb Fountaine and Bull SAS were enlisted as potential providers of the crucial system set to replace Simba system, an old customs management system used by KRA.
Tmea boss linked to controversial firm, Bull Sas
Fresh details have now emerged linking TMEA boss to Bull SAS Company, a firm controversially awarded Bull Sas with TMEA as the lead procuring entity.
Investigations by The Informer have reliably established that Ken Jones currently the TMEA Chief Operating Officer worked as a consultant for four years to Atos, an entity which now owns Bull SAS Company.
Atos bought Bull SAS in late 2014. Further, we learnt that he joined TMEA in 2010.
Documents in our possession reveal that Bull SAS did not submit any recent reference letter with those forwarded to the procuring entity being from Malta is dated 07 March 2013 and the reference letter provided by Bull from Cyprus is dated 8th September 2005, over a decade ago.
The tender documents provide a mandatory requirement for direct client references.
Details emerged that in 2007, the Irish Revenue Authority contracted Accenture and Bull jointly to implement Automated Entry Processing (EAP2).The project was dubbed E-biscus.
According to the standard bidding document for supply, installation, testing and commissioning of an integrated customs management systems (ICMS) and related modernization services at KRA (PO/20130221) Trademark documents in our possession, its mandatory requirement for the lead bidder to give client References on:
“1. Bidders should provide at least two client references that are similar in size and complexity to this procurement and have utilized and implemented a customs system in a comparable environment.
2. All references will be contacted during the assessment process. KRA/TMEA will not work through a Bidder’s Reference Manager to complete a reference. Bidders should provide a direct client reference that was involved in a Bidder lead project. Bidders are required to complete and submit one copy of [Table 3.5.3 and 3.5.3 a] per client reference with their proposal.” The bid documents under Non-functional requirements section reads in part.
The direct client references are mandatory requirements in the bid documents to authenticate firms’ capacity, qualification and competence from the previous sites where they have installed a project of a similar scale as lead contractors.
According to documents in our possession, Bull never undertook any project as lead bidders in at least two sites both in Ireland and Morocco as required in the tender documents.
“I undersigned, Paul Duff, Accenture Senior Executive, hereby certify that Bull SAS Company has successfully completed its share of the Custom Ireland project named Automatic Entry Processing.” Part of the letter submitted by Bull as client reference dated July February 2011 reads in part.
According to the letter petition letter served to PPOA, Automatiseedes Douanes en Reseau, a Moroccan customs system that Bull claimed to have designed, was a local product designed and developed by the Moroccan Administration of Customs and Indirect Taxes.