You are here: HomeWallOpinionsArticles2011 08 23Article 216857

Biometric Voter Registration- A $150-Million Waste?

Comment: Chop Chop time in Ghana

Edward Ntim-Addae
2011-08-23 15:06:49
Comment to:
Let's hope for better days!

too much of your time but i think things must change and it must start now.
[11:02:16 AM] Moses Baiden: now we raet trying to get tyhem disqualified and brought this mattter up to court and got an injunctio making it illegal if we are seen to rock the boat EC will be our enemies and will award to some one elsen the PPA law says that only 6 shall be selected after an EOI STL was 7th and were added to the original 5
[11:02:29 AM] Moses Baiden: We are the solicitors for Intelligent Card Production Systems Limited (“ICPS”), and we write on its instructions, to submit the following arguments in support of its petition to you dated [] on the above entitled matter.
This petition shows that:
1. When the Government directed that a biometric register be put in place to replace the existing national voters register in Ghana, the Ghana Electoral Commission (“GEC”) issued a tender in the newspapers, for equipment for a pilot project to determine the feasibility of implementing such a voter registration system. (Appendix 1)
2. ICPS won that bid, and the GEC awarded it the contract for the pilot project study, the results of which study culminated in the formulation by the GEC of the technical guidelines to regulate the implementation of the substantive national biometric voter registration project. (Appendix 2)
3. Subsequently, the GEC advertised in the newspapers, and ICPS and over thirty-seven other entities submitted an Expression of Interest (“EOI”) in executing the substantive project.
4. The GEC engaged this procedure because it was mandatorily compelled to do so under section 66 of the Public Procurement Act, 2003 (Act 663).
5. The GEC then formed an evaluation committee which conducted an initial evaluation of all the thirty-eight EOI’s, after which the committee pre-qualified and short-listed ICPS and four other entities, out of the thirty-eight entities.
6. After its evaluation committee had evaluated the EOIs and submitted the five short-listed entities, the GEC in breach of the Law, increased the short-listed and prequalified entities to seven (7).
7. This is because section 67 of Act 663 provides in mandatory terms that the maximum number of entities at this stage is six (6). The section provides specifically as follows:
67. Shortlisted candidates
(1) The procurement entity is responsible for the preparation of a shortlist of consultants to be considered to participate in the selection process.
(2) The shortlist may comprise only national consultants but shall comprise at least three and not more than six consultants.
(3) The procurement entity shall provide the invitation for proposals to the shortlist of consultants selected on the basis of quality.
(4) The procurement entity shall provide the invitation for proposals to the most qualified or single sourced consultant selected on the basis of the consultant’s qualifications. [Emphasis added.]
8. It is important to refer to section 42 of the Interpretation Act, 2009 (Act 702), which provides as follows:
In an enactment the expression “may” shall be construed as permissive and empowering, and the expression “shall” as imperative and mandatory.
9. If section 67(2) of Act 633 is read in the context of section 42 of Act 702, it leads to the conclusion that although the GEC has a discretion whether or not to limit the shortlist to Ghanaian bidders, it is mandatorily required that the number of bidders shortlisted cannot be less than three (3) or exceed six (6).
10. In effect, a bidder in the place of ICPS has the right to be in competition with a maximum of 5 other bidders, and no more. It has a right to be protected against a procurement entity such as the GEC, increasing the number of shortlisted bidders to 7, in breach of the law. Thus the GEC’s action was in clear breach of the law, and ICPS has the right to be protected against the violation of this right.
11. Following the short-listing, the GEC, by the ITT, invited all the 7 entities to submit bids for evaluation, selection and eventual award of the contract to supply the equipments and technical system for the implementation of the substantive project, in further breach of the law.
12. The ITT contained the full requirements for a bid, including the minimum mandatory statutory requirements, as provided in Act 663, and in response to that and on 11th July 2011, ICPS submitted its bid, containing all the requirements specified in the ITT and the relevant provisions of Act 663.
13. After that there was a discernible, undue delay in receiving a scheduled invitation from the GEC to conduct a demonstration of its Technical Proposal, which is a component in the GEC’s technical evaluation of submitted bids, which led to ICPS having several discussions with the GEC to enquire about the delay.
14. It was only on Friday, 12th August 2011, that the GEC delivered a letter dated 11th August 2011 to ICPS, informing the latter that its bid did not conform to clauses 2, 9, 13 and 30 of the ITT, and section 22(b) of Act 663; as a result, the GED had rejected the bid.
15. It was only after ICPS had persisted and demanded to be given the particulars of the alleged omissions which made its bid non-conforming to the terms of The ITT and the referred section of Act 663, that the GEC informed ICPS that the real reason for the disqualification was ICPS not including its certificate of incorporation in its tender document.
16. This is, respectfully, strange, illegal and unconstitutional on the following grounds, to which we now turn.
17. First, although section 22(1)(b) of Act 663 provides that “a tenderer in public procurement shall… have the legal capacity to enter the contract,” the Act did not state the exact proof required to show “the legal capacity to… contract.” It therefore stands to reason that a procurement entity has to state, expressly which documentary or other evidence of a person’s “legal capacity to… contract” it would require for each tender. It is respectfully submitted that nowhere in the ITT, did the GEC specifically state that the proof of “legal capacity to… contract” required for this bid was a certificate of incorporation.
18. Indeed in the document from Voscon (ICPS’ auditors), which the GEC accepted, there is a clear statement that ICPS was duly incorporated on 6th April 2004 and was issued with a certificate to commence business on 7th April 2004. Thus if the GEC wanted any other or further proof of that information, which was available to it in the ICPS’ documentation, one would have expected the GEC to simply ask for it, having failed to specifically request for that in the ITT. (Appendix 3)
19. Second, Voscon had also made a specific representation in Appendix 3 that ICPS was financially healthy, and that there was no condition that suggested or required its liquidation in the foreseeable future. The GEC appeared to accept this without requiring further proof. It is therefore respectfully strange that when it comes to the issue of the corporate existence of ICPS, the GEC would now say, that notwithstanding the clear statement made by Voscon, no proof of existence was offered. Several letters to the same effect were made by several organizations and one government to that effect, commending ICPS as a company they had done business with. (Appendix 4)
20. Third, and with due respect to the GEC, under section 14(c) of the Companies Act, upon the registration of a company’s Regulations, the Registrar issues a certificate of incorporation authenticated under his official seal, not as proof of “legal capacity to… contract” but only to certify that the company is duly incorporated. Thus a certificate of incorporation is NOT “proof of legal capacity to enter [into a] contract.” It only shows that the company exists.
21. Indeed, proof of a company’s legal capacity to enter into a contract may encapsulate many other matters, for example, a resolution of, or power donated by, the board of directors to a director to enter into the contract, or a representation from the company’s auditors about its financial standing. There is in ICPS’s financial proposal a power of Attorney by the board to the Chief Executive empowering him to enter into a contract with the GEC In relation to the tender. Also in the tender document are signed certificates of participation from 4 renowned International companies, with a value exceeding $20 billion, who entered into a teaming agreement, to form a consortium after the requisite due diligence to establish the capacity of ICPS to enter into a contract with them as the leader(Appendix 5). Thus if the GEC required only a certificate of incorporation as the proof required under section 22(1)(b) of Act 663, it should have stated so clearly in the ITT; but it did not. It chose to ask for many other documents things.
22. Fourth, it is to ensure that procurement entities such as the GEC do not engage in arbitrary and capricious acts, that section 22(2) of Act 663 empowers persons in the position of the GEC to “require tenderers to provide appropriate documentary evidence or any other information that it considers useful to satisfy itself that the tenderers are qualified in accordance with the criteria referred to in subsection (1).” This section places on the GEC the obligation to expressly state, the exact documents it required from ICPS to meet the requirements of section 22(1). Thus if all that the GEC required from ICPS was its certificate of incorporation (having failed to specifically ask for same in the ITT), the GEC could and should simply have asked for it.
23. Fifth, section 22(3) of Act 663 further provides that tenderers such as ICPS are only bound by “requirements… stated in the tender document.” The section provides specifically as follows:
A requirement established pursuant to this section stated in the tender documents or any other documents for invitation of proposals shall apply equally to the tenderers. [Emphasis added.]

24. And under section 22(4) of Act 663, the evaluation of tenderers’ qualifications is limited to the “criteria and procedures” that should have been clearly stated in accordance with section 22(3), quoted above. Thus, once the ITT failed to specifically demand the submission of certificates of incorporation, the GEC did not have the right to regard its non-submission by ICPS as a ground for disqualification.
25. Sixth, according to section 22(5) and (6) of Act 663, disqualification of a tenderer can only be on the ground that it has submitted “a document containing false information for purposes of qualification” or that the information submitted was “materially inaccurate or materially incomplete.”
26. It is for good reason that the section uses the adjective “materially” to qualify the word “incomplete”. This is because the section anticipates situations where the information submitted would be incomplete or even deficient. Thus the mere fact that information submitted by a tenderer is incomplete is not a sufficient ground for disqualification; the alleged incompleteness must not be slight or trivial, but must be significant, substantial and immense, for it to lead to a disqualification. It is therefore strange that the GEC would out of the blue, elevate the importance of a document that it did not specifically ask for, and use that as the sole ground to disqualify ICPS.
27. As a matter of fact, it is not as if the GEC does not know of the legal existence of ICPS. As noted above, the GEC and ICPS have done business together recently, specifically when ICPS won the bid to conduct the pilot project in connection with this Contract. The GEC and ICPS entered into a written contract, in which ICPS represented that it had legal existence, to the satisfaction of the GEC, when it signed that contract. ICPS performed, and the GEC paid ICPS into its bank account with CAL Bank, Graphic Road Branch. Clearly, the GEC knew of ICPS’s corporate existence, which is the only thing a certificate of incorporation proves. (Appendix 6)
28. ICPS concedes that under section 24(5) and (6) of Act 663, the GEC is empowered to require ICPS, having been prequalified, to demonstrate its qualifications “again,” in accordance with the same criteria used at the prequalification stage, and that GEC may disqualify ICPS if the latter failed to demonstrate its qualification again, whether or not it had done so to GEC’s satisfaction, earlier. However, a close look at the EOI that was published in the newspapers shows that the GEC was clear on what evidence it required to show capacity. Nowhere in the EOI was ICPS required to submit the now ‘all-important’ certificate of incorporation. (Appendix 7)
29. In fact, ICPS re-submitted its EOI in the tender documents, as required by the GEC.
30. Thus the GEC was aware of ICPS’ existence. Thus, even if ICPS’ bid documents were “incomplete” (which is denied because the ITT did not ask for the certificate of incorporation) that was so minor that a reasonable procurement entity would simply ask for it, in compliance with its duty under Article 296 of the Constitution “to be fair and candid,” act “in accordance with due process of law,” and “not be arbitrary [or] capricious.”
31. It is in the face of these obvious breaches of the law and the Constitution that ICPS immediately wrote to the GEC on the 12th August 2011 to demonstrate the errors in the grounds provided by the GEC as basis for ICPS’ disqualification and to reject same.
32. In that letter ICPS also referred the GEC to Section 58 of Act 633 which mandates it to accept as qualifying, a bid that conforms to the requirements specified, in this case, in the ITT, whilst permitting such acceptance, where the bid is found, indeed, to contain “minor deviations”. Indeed ICPS has since furnished its certificate of incorporation to the GEC. (Appendix 8)
33. It is therefore respectfully submitted that the purported disqualification of ICPS, solely on the ground that it failed to submit its certificate of incorporation is not based on the law, and is unfair, arbitrary and capricious.
34. To end, we respectfully submit that our answer to the GEC’s claim not to know of ICPS’ corporate existence is cryptically contained in the following words of Lord Sumner in The Zamora (No. 2) [1921] 1 AC 801 at 812, as follows:
There are two senses in which a man is said not to know something because he does not want to know it. A thing may be troublesome to learn, and the knowledge of it, when acquired, may be uninteresting or distasteful. To refuse to know any more about the subject or anything at all is then a wilful but a real ignorance. On the other hand, a man is said not to know because he does not want to know, where the substance of the thing is borne in upon his mind with a conviction that full details or precise proofs may be dangerous, because they may embarrass his denials or compromise his protests. In such a case he flatters himself that where ignorance is safe, 'tis folly to be wise, but there he is wrong, for he has been put upon notice and his further ignorance, even though actual and complete, is a mere affectation and disguise.

35. It is in the light of the foregoing that ICPS instructed us, as its lawyers, to commence legal proceedings (including an application for interlocutory injunction) to restrain the GEC, whether by itself or by its Commissioners, employees, agents, assigns and successors-in-title whatsoever, from conducting the demonstration of the technical proposals by the selected tenderers for the supply of the equipment and technical systems for the compilation of a national biometric voters register (“Contract IFBNo GR/ECGH/GD/003/2011 for the REPLACEMENT OF THE EXISING VOTERS REGISTER”), and from awarding the contract to any tenderer/bidder, until the final determination of the matter.

36. However, and after filing and serving the action and application, ICPS referred us to a letter issued by the Public Procurement Agency, suspending the process for a period of seven (7) days.

37. As a law-abiding corporate citizen, ICPS would want to show utmost respect to the PPA and has therefore instructed us to discontinue the action and injunction application, to afford the PPA a free hand to look into this matter.

38. We have accordingly filed a Notice of Discontinuance of the action. (Appendix 9)

39. In the light of the foregoing, our instructions are to respectfully request the following reliefs from the PPA:

a. An administrative review of the bid process;
b. A declaration that the inclusion of a 7th bid is null and void;
c. A declaration that the disqualification of ICPS is wrong and illegal;
d. A order compelling the review of ICPS’ technical proposal with highest qualifying bid to ensure a uniform ‘marking scheme’;
e. An order compelling an additional review by independent consultant of the 2 bids;
f. An order compelling a demonstration of ICPS’ Technical Proposal; and
g. The introduction and enforcement of domestic preference rules in this instant tender.

The above constitutes our client’s position and petition on the matter. We are available to attend any hearings that you may hold, to further elaborate on and defend our position.

Yours faithfully,

Bentsi-Enchill, Letsa & Ankomah
[11:08:02 AM] Moses Baiden: • Intelligent Cards Production Systems Limited (ICPS) a subsidiary of Margins ID Group. Margins, has been providing the Electoral card solution since 1992 and has delivered over 95% of all major identification projects in Ghana for over 21 years. ICPS (a subsidiary of the Margins ID Group) is the only majority Ghanaian held prime contractor in the current tender, teaming up with 3 Multinational foreign sub-contractors, the other 5 competing companies have Ghanaian companies involved only as agents.

1. ICPS won and was awarded the first ever Ghana Electoral Commission (GEC) pilot biometric voters register and voter card tender project in 2009, in an openly advertised international competitive tender.
2. In the National ID tender, ICPS initiated and formed the Ghana Identification Company limited (GIDC) consortium to win the tender with a foreign company as Prime contractor. Ghanaian local experts are currently engaged and already have the experience of registering over 12.5 million people in a biometric register under the consortium company (GIDC), initiated by Margins ID Group, the parent company of ICPS.
3. ICPS has existing local capacity Systems and facilities for training, implementation, maintenance and support of biometric registration. There are active ICPS personnel assisting the NIA presently, all Ghanaian.
4. ICPS also manufacturers the E-switch biometric cards in Ghana for all banks.
5. ICPS is a specialised subsidiary of Margins ID Group (MIDG) nominated by its parent group to undertake this project. ICPS is a majority Ghanaian owned company, whose key investors are Margins Group, IFU Denmark, IDFG Denmark, Blom Holdings Denmark, Sage Research Management Systems (American & Ghanaian) the Ghana government, through the EDIF fund and the Danish government through the B2B program, It has been adjudged one of the best Danish assisted companies in Africa. The Danish government has just approved a Mixed Credit facility of USD3.2 million, to ICPS Ghana, and USD 2 million for Margins ID Group in Tanzania and Uganda. (The company is present in 7 African countries) to further assist the company expand its operation in Africa.
6. This year the Margins ID Group with its fully owned subsidiaries Margins ID Systems and ICPS have won the Liberian National Biometric Identification System after an international selection process.
7. The company has the largest Identification and card production facility in the West, Central and East African corridor, and aims to be a Ghanaian multinational in the area of identification, and a leader of the African market.

8. ICPS’ partners for the GEC Biometric register and cards tender, are carefully selected, and are the best combination of companies globally; Olivetti, Dermalog and Gemalto.

• Olivetti is a house hold name with indisputable credentials synonymous with quality manufacturing of machines, computers and equipment, globally for over 50 years. Olivetti is supplying expertise in manufacturing of computers and IT equipment. Olivetti is also ready to offer telecom expertise should this be needed through its parent company Telecom Italia, an 85 Billion Euro company. Olivetti supplied 16,000 kits for the Nigerian elections in record time and with no returns.

• Gemalto is to deliver a superior Digital Mobile Registration Kit solution. Gemalto is a world leader in digital security with pro forma 2009 annual revenues of €1,654billion, more than 77 offices in 40 countries. Participated in over 50 national biometric and electronic identity card projects worldwide. Including supplying the Benin Voters Biometric digital registration kit and biometric ID card.

• Dermalog Identification Systems GmbH a German company and the world’s foremost biometric company is the choice of ICPS as the de-duplication partner, to provide services and equipment for conducting biometric duplicate analysis (AFIS) of the Voters Database, and to produce a clean register free of all duplicates. This choice is informed by the company’s comprehensive coverage and completion of renowned biometric projects across the world, and its superior algorithm in civil and forensic biometric searches, as certified by the FBI and NIST. Dermalog is a winner of international certifications in identification technology, with an extensive list of biometric and software references. Over 60 international references, spanning over 40 countries. Their track record of completing all their projects on schedule and efficiently is unrivalled in the biometric world.
• No one company can therefore compromise the system; the system will be modular, transparent and vendor independent.

This article is closed for comments.

08-23 04:35
Chop Chop time in Ghana
Edward Ntim-Addae
08-23 15:06