KENYAN COURTS SAY SNO SELECTION TO GO AHEAD - LIKELY WINNER IS TELENOR

Telecoms

In a dramatic turnaround in the Courts last week, Kenya's SNO selection process was given the green light and a Ministerial statement gave a strong clue that the eventual winner would be Telenor who also operate in Ghana (see Internet News below).

Kenya's The Nation believes it has established that Telenor Communications of Norway was on the brink of being declared the winner of the licence for the second operator of fixed line telephone services, when the Government abruptly intervened to cancel the tender.

All indications are that the Norwegian company will this week move to the High Court to seek a judicial review of the decision by Information and Communications minister Raphael Tuju to cancel the tender.

If the matter ends up in court, the Government could face a great deal of embarrassment, because the matter has been handled in a manifestly irregular manner. And, depending on how events evolve, the saga may carry ramifications for the relations between Norway and Kenya. The largest telecommunications company in Norway, Telenor is a major player internationally, with a presence in 16 countries.

A statement made in Parliament last week by Mr Tuju only served to raise more questions than answers. How the minister managed to access the minutes of the Communications Commission of Kenya's technical evaluation committee is one of the most intriguing aspects of the saga. Politicians have no veto powers over tender evaluation committees. The minister disclosed that two of the three bidders had failed the technical evaluations.

"Out of these three finalists, two have been disqualified therefore leaving only one bidder to go to the next stage of opening of the financial bid," he said.It was a loaded statement indeed, because it amounted to an admission that Telenor had indeed emerged as a winner at this stage. As things stand, Tuju's decision has left him open to the charge that he intervened merely to frustrate the Norwegian company.

He argued that since only one company had passed the technical evaluation stage, it was not possible to get competition at the financial stage. "No competition is now possible with respect to the funds that the licensee will pay," he said, declaring the whole tender as an "unresponsive bidding process".

It is not a very convincing argument, considering the fact that the Government had imposed a reserve price of Sh2 billion for the licence How can one declare a financial bid "unresponsive" before opening the envelopes for the bid? What if it turns out later that Telenor had offered much more than the Sh2 billion reserve price? If the matter ends up in the High Court, the Government will be hard-placed to defend its decision. What if the courts direct that the envelope for the financial bid be opened?

It is noteworthy that in his statement to Parliament, Mr Tuju declared that his own examination of the tender process had confirmed that there was no wrongdoing. "Our examination of the process so far has not revealed that there was any deliberate attempt to rig the process," said the minister.

The Nation