Public Procurement Rules in Kenya

Meaning of Procurement Rules

Procurement rules refer to the regulations and guidelines governing the process of acquiring goods, services, or works by an organization, typically a government agency, corporation, or nonprofit entity. These rules are designed to ensure transparency, fairness, efficiency, and accountability in the procurement process. They outline procedures for soliciting bids or proposals, evaluating offers, selecting suppliers or contractors, and awarding contracts. Procurement rules often address various aspects such as competition, ethics, financial management, risk mitigation, and legal compliance. Compliance with procurement rules helps organizations achieve value for money, mitigate risks, and maintain public trust.

General Procurement Rules

  • For each procurement, the procuring entity shall use open tendering or an alternative procurement procedures.
  • A procuring entity may use an alternative procurement procedure only if that procedure is allowed.
  • A procurement entity my use restricted tendering or direct procurement as alternative procurement procedure only if before using that procedure the procuring entity shall,
  • Obtained a written approved of its tender committee
  • Records in writing the reasons for using the alternative procurements procedure.

Procurement not to be split or inflated

  • No procuring entity may structure procurement as two or more procurements for purpose or use of avoiding the use of a procurement procedure.
  • Any person who contravenes this is spoilt f procurement one shall be guilty of an offence.
  • Standard goods services and works with as market prices shall be procured at the prevailing real market price.
  • Public officials involved in transactions (where you buy goods at inflated prices) in which standard goods, services a works are procured at unreasonably inflated prices shall in addition to any other sanctions prescribed in the PPDA be required to pay the procuring entity for the loss resulting in the transactions.

Qualifications to be awarded contract

  • A person is qualified to be awarded a contract for procurement if;
  • The person has necessity qualifications, capability, experience, resources, equipment and facilities to provide what is being procured.
  • Has the legal capacity to enter into a contract for the procurement.
  • The person is not insolvent, in receivership, bankrupt or in the process of being wound up and is not subject of the legal proceedings relating to the above.
  • If you have not been debarred from participating in procurement proceedings.
  • The procuring entity is not precluded from entering into the contract with the person

Identification of Qualified Persons

  • To identify qualified persons a procuring entity may require that a person provide evidence or information that all the above (qualification to be awarded the contract) have been fulfilled.
  • The entire requirement (for qualification) shall be set out in the tender documents or request for proposal or quotations or if a procedure is used to prequalify persons, in the documents used in that procedure.

The procuring entity may disqualify a person for submitting false, inaccurate or incomplete information about his qualification.

A procuring entity shall not enter into a procurement contract with;

  • An employee, member of the board, or committee the procuring entity.
  • A minister, public servant or member of the board or committee of the government or any department of the government.

Prequalification procedures

Where the procuring entity conducts pre-qualification procedures, it shall publish an invitation to candidates to submit applications to be pre-qualified and shall include: – the name, address contact details of the procuring entity

  • An outline of the procurement requirement including the nature and quality of goods works or services and the location and timetable for delivery for the performance contract.
  • Statements of the key requirements and the criteria to qualify.
  • Instructions on obtaining the pre-qualification documents, including any price payable and language of the document.
  • Instructions on the location and deadline for submission of the tender documents.

Specific Requirements

  • The procuring entity should prepare specific requirement relating to the goods, work or services being procured that are clear.
  • It should give a correct and complete description of what is to be procured and that it should allow for fair and open competition among those who may wish to participate in the procurement proceedings.
  • The specific requirements shall include all the procuring entity technical requirements with respect to the goods works or services being procured
  • Technical requirements shall where appropriate related to the performance rather than to design on descriptive characteristics and
  • Secondly be based on national or international standard.
  • The technical requirements shall not refer to a particular trade mark, name, patent, design, type, producer, or service provider or to specific origin.
  • The technical requirement shall not refer to a particular trade mark, name, patent, design, type, producer, or service provider or to specific origin unless;
  • There is no other sufficiently precise or intelligent way of describing the requirement.
  • The requirements allow equivalents to what is referred to.

Declaration

A tender, proposal or quotation submitted by a person shall include a statement verifying that the person is not debarred from participating in procurement proceeding and a declaration that the person shall not engage in any corrupt practices.

Contract Termination

A procuring entity may at any time terminate procurement proceedings without entering into a contract however;

  • The procuring entity shall give prompt notice of termination to each person who submitted a tender, proposal or quotation or if direct procurement was being used to each person with whom the procuring entity was negotiating.
  • On request by any of the above the procuring entity shall give its reasons for its termination within 14 days of the request.
  • In matters where tenders had been submitted, the procuring entity shall return the tenders un-opened i.e. if termination occurs before the contract.
  • The procuring entity is not liable to any person for the termination and the decisions shall not be reviewed by the review board or a court of law
  • The entity shall give the authority a written report of the termination.

Form of Communication

  • If a procurement procedure used is open or restricted tendering or a request for proposals, communications between the procuring entity and the person seeking the contract shall be in writing.
  • If where direct procurement or a request for quotation is used communication shall either be in writing or referred to and confirmed in writing.
  • Electronic communication is also allowed.

Inappropriate influence on evaluation

After the deadline of submission of tenders, proposals or quotations

  • No person who submitted a tender, proposal or quotation shall make any unsolicited communication to the procuring entity that might reasonably be constructed as to attempt to influence the evaluation and comparisons of the tenders, proposals, or quotations.
  • No person who is not officially involved in the evaluation and comparison of tenders, proposals or quotations shall attempts in any way to influence that evaluation or comparison.

Note: a person who contravenes the above (1 and 2) is guilty of an offence and liable for conviction.

  • If the person is an individual a fine not exceeding 4 million or imprisonment for a term not exceeding 3 years or to both.
  • If a corporation, a fine not exceeding 10 million

Candidates shall participate in procurement proceedings without discrimination except where participation is limited.

The minister shall in consideration of economic and social development factors prescribe preferences or restrictions in public procurement and disposal. The preferences and reservations shall be

  • Non-discriminatory in respect of the targeted groups.
  • Allow competition among the eligible candidates
  • Be monitored and evaluated.

The preferences reservations shall apply to:

  • Candidates such as disadvantaged groups, micro, small and medium enterprises.
  • Works, services and good or any combination
  • Identified regions

To qualify for a specific preferences or reservation a candidate shall provide evidence of legibility

Fraudulent activities

No person, agent or employee shall be involved in any corrupt practice in any procurement proceedings.

  • The person shall be disqualified from entering into a procurement contract.
  • If a contract has already been entered in to with a person, the contracted shall be avoidable at the option of the procuring entity.
  • The procuring entity may take any other legal remedy

Review questions

  • Define Declaration and Form of Communication
  • Describe the General Procurement Rules
  • Explain when the Contract Termination
  • Describe the procedure of identified qualified persons in procurement
  • Describe fraudulent activities that would lead to disqualification

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