(2)
The members of the Review Board shall serve on a part time basis.
PART III— COUNTY
GOVERNMENT RESPONSIBILITIES WITH RESPECT TO PUBLIC PROCUREMENT AND ASSET
DISPOSAL
33. (1) A County Treasury shall be the organ responsible
for the implementation of public procurement and asset disposal policy in the
county.
Roles and Responsibilities of the County Government.
(2)
Without prejudice to the general provisions of subsection (1), the County
Treasury shall establish a procurement function which
shall —
(a)
implement public procurement and asset disposal procedures;
(b)
coordinate administration of procurement and asset disposal contracts;
(c)
coordinate consultations with county stakeholders of the public procurement and
asset disposal system in liaison with the National Treasury and the Authority;
(d)
advise the accounting officers of county government entities on public
procurement and asset disposal matters;
(e)
co-ordinate county government monitoring and evaluation of the supply chain
function of county government entities including ensuring compliance;
(f)
promote preference and reservations schemes for small and micro enterprises and
other disadvantaged groups, citizen
contractors, women, youth, persons with disabilities, minorities and
marginalized groups in public procurement at the county;
(g)
promote preference and reservation
schemes for residents of the county to ensure a minimum of twenty percent in
public procurement at the county;
(h)
administer the scheme of service for county government procurement and supply
chain management officers and capacity building;
(3)
The County Treasury may prescribe an institutional framework to provide for the
procurement, administration and management of common user items for the county
government.
PART IV—POWERS TO ENSURE COMPLIANCE
34. A public entity shall provide the National
Treasury or the Authority with such information relating to procurement and
asset disposal as may be required in writing.
Powers
to ensure compliance.
35. (1) The Authority, may undertake
investigations, at any reasonable time, by among other things examining the
records and accounts of the procuring entity and contractor, supplier or
consultant relating to the procurement or disposal proceeding or contract with respect
to a procurement or disposal with respect to a State organ or public entity for
the purpose of determining whether there has been a breach of this Act or the
Regulations
made thereunder. Investigations.
(2)
An investigation under sub-section (1) may be initiated by the Authority or on
request in writing by a public institution or any other person.
(3)
Investigation shall be conducted by an investigator appointed for the purpose
by the Authority.
36. (1) For the purpose of carrying out an investigation
of procurement or asset disposal proceedings an investigator has the following
powers —Powers of investigators.
(a)
with prior notification to the procuring entity, the investigator shall have
access to all relevant premises, books, records, returns, reports and other
documents of the procuring entity or a person who participated in the
procurement or asset disposal proceedings, including electronic documents;
(b)
the investigator may remove or make copies of any documents the investigator
has access to under paragraph (a);
(c)
where an investigator removes a document from the premises, the investigator
shall certify a copy of the document to be left with the procuring entity; and
(d)
the investigator may require any of the following to provide explanations,
information and assistance—
(i)
an employee or officer of the procuring entity; or
(ii)
an employee or officer of a person who participated in the procurement or asset
disposal proceedings.
(2)
In addition to the powers under subsection (1), an investigator shall have such
other powers as may be prescribed by Regulations.
(3)
The powers of an investigator are subject to such conditions and limitations as
may be prescribed by regulations.
37. After completing his or her investigation, an
investigator shall prepare and submit a report to the Authority. Report of investigation.
38. (1) If, after considering the report of an investigator,
the Director-General is satisfied that there has been a breach of this Act, the
Regulations or any directions of the Authority, the Director-General may, by
order, do any one or more of the following —
Order
by the Director-
(a)
direct the procuring entity to take such actions as are necessary to rectify
the contravention;
(b)
terminate the procurement or asset disposal proceedings;
(c)
prepare and submit a summary of the investigator’s findings and recommendations
to the relevant authorities for action; or
(d)
require the procuring entity to transfer procuring responsibilities of the
subject procurement to another procuring entity.
(2)
Before making an order under subsection (1), the Director-General shall give
the following persons an opportunity to make representations —
(a)
the procuring entity; and
(b)
any other person whose legal rights the Director- General believes may be
adversely affected by the order.
39. The procuring entity and any other person who
was entitled to be given an opportunity to make representations under section
38 (2) may request for
Judicial
Review against an order of the Board to the High Court within fourteen days after the order is
made. Request for a Judicial review.
40. (1) No investigation shall be commenced or continued
under this Part, and no order shall be made under this Part, in relation to an
issue that the Review Board is reviewing or has reviewed under the relevant
provisions of this Act. No investigation if issue
before Review Board.
(2)
Subsection (1) ceases to apply if, after the Review Board has completed its
review, information comes to the attention of the Board that was not brought
before the
Review
Board in the course of its review.
41. (1) The Board shall debar a person from participating
in procurement or asset disposal proceedings on the ground that the person — Debarment.
(a)
has committed an offence under this Act;
(b)
has committed an offence relating to procurement under any other Act or Law of Kenya or any other jurisdiction;
(c)
has breached a contract for a procurement by a public entity including poor
performance;
(d)
has, in procurement or asset disposal proceedings, given false information
about his or her qualifications;
(e)
has refused to enter into a written contract as required under section 135 of this
Act;
(f)
has breached a code of ethics issued by the Authority pursuant to section 181
of this Act or the code of ethics of the relevant
profession regulated by an Act of Parliament;
(g)
has defaulted on his or her tax obligations;
(h)
is guilty of corrupt or fraudulent practices; or
(i)
is guilty of a serious violation of fair employment laws and practices.
(2)
Without limiting the generality of subsection (1) the Board may debar a person
from participating in any procurement process if that person—
(a)
has breached the requirements of the tender securing declaration form in the
tender
documents;
or
(b)
has not performed according to professionally regulated procedures.
(3)
The Authority, may also debar a person from participating in procurement or asset
disposal proceedings—
(a)
on the recommendation of a law enforcement organ with an investigative mandate;
(b)
on grounds prescribed by the Authority in Regulations.
(4)
A debarment under this section shall be for a specified period of time of not
less than three years.
(5)
The procedure for debarment shall be prescribed by Regulations.
42. A party to the debarment may seek Judicial Review
from the decision of the Authority to the High Court within fourteen days after
the decision is made. Judicial Review
43. (1) The Authority, or anyone authorised by
the Authority, may inspect, assess, review or audit at any reasonable time, the
records and accounts of the procuring entity and contractor relating to the
procurement or disposal proceeding or contract and the procuring entity and
contractor or tenderer shall co-operate with and assist whoever does such an
inspection. Inspections, Assessments and Reviews
relating to contracts, procurement and asset disposal proceedings.
(2)
The Authority shall conduct procurement audits during the tender preparation,
contract audit in the course of execution of an awarded tender; and performance
audit
after
the completion of the contract in respect of any procurement or asset disposal
as may be required.
(3)
The inspector shall have access to all relevantbooks, records, returns, reports
and other documents of the procuring entity or a person who participated in the
procurement or asset disposal proceedings, including electronic documents.
(4)
The inspector may remove or make copies of any documents he or she has access
to.
(5)
Where an inspector removes a document from the promises, the inspector shall
certify a copy of the document to be left with the procuring entity;
(6)
The inspector may require any of the following to provide explanations,
information and assistance—
(a)
an employee or officer of the procuring entity; or
(b)
an employee or a person who participated in the procurement or asset disposal
proceedings.
(7)
Subject to prescribed conditions and limitations, an inspector shall have
additional powers as may be prescribed.
(8)
Where contraventions are discovered in the course of an inspection, the
Authority may direct the procuring entity to take such actions as are necessary
to rectify the
contravention.
PART V—INTERNAL
ORGANISATION OF PROCURING ENTITIES
44. (1) An accounting officer of a public entity
shall
be
primarily responsible for ensuring that the public entity
complies
with the Act.
Responsibilities
of the accounting
details
on its website—
(a)
Name and address of the agent;
(b)
value of the contract;
(c)
items and value of items to be procured or disposed by the agent;
(d)
duration of the contract; and
(e)
method of procuring the agent.
(5)
A state organ or public entity shall not appoint more than one agent for the
same transaction.
(6)
A state organ or public entity shall give preferential treatment to the local
agents before seeking the services of an international procurement agent.
(7)
For the preference for local agents, all the work shall be handled by agents of
same region in question, and where an international agent has been procured,
all functions that will be sublet and can be performed by citizens shall be
sublet to persons who are citizens.
(8)
A Procuring or disposal agent shall comply with the provisions of this Act.
52. (1) The Authority shall have power to
transfer the procuring responsibility of a procuring entity to another procuring
entity or procuring agent in the event of delay or
in
such other circumstances as may be prescribed. Transfer
of procuring responsibility to another public entity or procuring agent.
(2)
Subject to the approval of the governing body of the organ or entity, where
applicable or upon recommendation of the Authority, an accounting officer shall
make arrangements to enable another procuring entity to carry out the
procurement or part of the procurement, on behalf of a procuring entity, in
accordance with this Act.
(3)
A procuring entity may use the register list of another State organ or public
entity whenever the procuring entity’s list does not suffice.
(4)
The procuring entity shall obtain the whole list of relevant category from the
State organ or entity, and together with its own relevant list, subject the
list to this Act.
PART VI —GENERAL
PROCUREMENT AND ASSET DISPOSAL PRINCIPLES
53. (1) All procurement by State organs and
public entities are subject to the rules and principles of this Act. Procurement and asset disposal planning.
(2)
An accounting officer shall prepare an annual procurement plan which is
realistic in a format set out in the Regulations within the approved budget
prior to commencement of each financial year as part of the annual budget
preparation process.
(3)
Any public officer who knowingly recommends to the accounting officer excessive
procurement of items beyond a reasonable consumption of the procuring entity commits
an offence under this Act.
(4)
All asset disposals shall be planned by the accounting officer concerned
through annual asset disposal plan in a format set out in the Regulations.
(5)
A procurement and asset disposal planning shall be based on indicative or
approved budgets which shall be integrated with applicable budget processes and
in the case of a State Department or County Department, such plans shall be
approved by the Cabinet Secretary or the County Executive Committee member
responsible for that entity.
(6)
All procurement and asset disposal planning shall reserve a minimum of thirty
per cent of the budgetary allocations for enterprises owned by women, youth, persons
with disabilities and other disadvantaged groups.
(7)
Multi-year procurement plans may be prepared in a format set out in the
Regulations and shall be consistent with the medium term budgetary expenditure
framework for projects or contracts that go beyond one year.
(8)
Accounting officer shall not commence any procurement proceeding until
satisfied that sufficient funds to meet the obligations of the resulting
contract are reflected in its approved budget estimates.
(9)
An accounting officer who knowingly commences any procurement process without
ascertaining whether the good, work or service is budgeted for, commits an
offence
under
this Act.
(10)
For greater certainty, the procurement and disposal plans approved under
subsection (5) shall include choice of procurement and disposal methods and
certain percentages referred to under subsection (6).
(11)
Any state or public officer who fails to prepare procurement and disposal plans
shall be subject to internal disciplinary action.
54. (1) No procuring entity may structure
procurement as two or more procurements for the purpose of avoiding the use of
a procurement procedure except where prescribed.
Procurement
pricing and requirement not to split of contracts.
(2)
Standard goods, services and works with known market prices shall be procured
at the prevailing market price.
(3)
The Authority shall issue a quarterly market price index as reference guide to
assist accounting officers make informed price decisions.
(4)
Public officers involved in transactions in which standard goods, services and
works are procured at unreasonably inflated prices shall, in addition to any
other sanctions prescribed in this Act or the Regulations made thereunder, be
required to pay the procuring entity for the loss resulting from their actions.
55. (1) A person is eligible to bid for a
contract in procurement or an asset being disposed, only if the person satisfies
the following criteria —Eligibility to bid.
(a)
the person has the legal capacity to enter into a contract for procurement or
asset disposal;
(b)
the person is not insolvent, in receivership, bankrupt or in the process of
being wound up;
(c)
the person, if a member of a regulated profession, has satisfied all the
professional requirements;
(d)
the procuring entity is not precluded from entering into the contract with the
person under section 38 of this Act;
(e)
the person and his or her sub-contractor, if any, is not debarred from
participating in procurement proceedings under Part XI of this Act;
(f)
the person has fulfilled tax obligations;
(g)
the person has not been convicted of corrupt or fraudulent practices; and
(h)
is not guilty of any serious violation of fair employment laws and practices.
(2)
A person or consortium shall be considered ineligible to bid, where in case of
a corporation, private company, partnership or other body, the person or consortium,
their spouse, child or sub-contractor has substantial or controlling interest
and is found to be in contravention of the provisions of subsection (1) (e),
(f), (g) and (h).
(3)
Despite the provisions of subsection (2), a person or other body having a
substantial or controlling interest shall be eligible to bid where—
(a)
such person has declared any conflict
of interest; and
(b)
performance and price competition for
that good, work or service is not available or can only be sourced from that
person or consortium.
(4)
A State organ or public entity shall require a person to provide evidence or
information to establish that the criteria under subsection (1) are satisfied.
(5)
A State organ or public entity shall consider as ineligible a person for
submitting false, inaccurate or incomplete information about his or her
qualifications.
56. (1) To identify qualified persons, a State
organ or public entity may seek, in writing, to use another State organ’s, public entity’s or regulated
professional body’s registration list of all registered persons in the
category, provided that the list is valid and developed through a competitive
process in accordance with the relevant provisions of this Act or, in the case
of regulated professional bodies, developed through a process in accordance
with relevant provisions of the legislation regulating the particular
profession. Use
of list of another state organ or public entity.
(2)
The State organ or public entity shall then subject the list, together with its
own, where applicable, to the procedures in this Act.
works
or services being procured that are clear, that give a correct and complete
description of what is to be procured and that allow for fair and open
competition among those who may wish to participate in the procurement proceedings.
(2)
The specific requirements shall include all the procuring entity’s technical
requirements with respect to the goods, works or services being procured.
(3)
The technical requirements shall, where appropriate —
(a)
conform to design, specification,
functionality and performance;
(b)
be based on national or international standards whichever is superior;
(c)
factor in the life of the item;
(d)
factor in the socio-economic impact of the item;
(e)
be environment-friendly;
(f)
factor in the cost disposing the item; and
(g)
factor in the cost of servicing and maintaining the item.
(4)
The technical requirements shall not refer to a particular trademark, name,
patent, design, type, producer or service provider or to a specific origin
unless —
(a)
there is no other sufficiently precise or intelligible way of describing the
requirements; and
(b)
the requirements allow equivalents to what is referred to.
61. (1) An
accounting officer of a procuring entity may require that tender security
be provided with tenders, subject to such requirements or limits as may be
prescribed.
Tender
security.
(2)
The form of tender security in subsection (1) shall be—
(a)
as prescribed in the Regulations;
(b)
stated as an absolute value;
(c)
an amount of not more than two percent of the tender as valued by the procuring
entity.
(3)
Tender security shall be forfeited if the person submitting the tender —
(a)
withdraws the tender after the deadline for submitting tenders but before the
expiry of the period during which tenders shall remain valid; or
(b)
refuses to enter into a written contract as required under section 136 or fails
to furnish any required performance security.
(4)
A procuring entity may immediately release any tender security if—
(a)
the procurement proceedings are terminated;
(b)
the procuring entity determines that none of the submitted tenders is
responsive;
(c)
a contract for the procurement is entered into; or
(d)
a bidder declines to extend the tender validity.
(5)
Tender securities shall not be required in procurements reserved for small and
micro-enterprises or enterprises owned by women,
youth, persons with disabilities and other disadvantaged
groups participating in a procurement proceeding and the target group shall be required
to fill and sign the Tender Securing Declaration
Form as prescribed.
62. A tender, proposal or quotation submitted by
a person shall include a declaration that the person will not engage in any
corrupt or fraudulent practice and a declaration that the person or his or her
sub-contractors are not debarred from participating in procurement proceedings.
Declaration not to engage in corruption.
63. (1) An accounting officer of a procuring
entity, may, at any time, prior to notification of tender award, terminate or
cancel procurement or asset disposal proceedings without entering into a
contract where any of the following applies—
Termination or cancellation of procurement
and asset disposal proceedings.
(a)
the subject procurement have been overtaken by—
(i)
operation of law; or
(ii) substantial
technological change.
(b) inadequate
budgetary provision;
(c)
no tender was received;
(d)
there is evidence that prices of the bids are above market prices;
(e)
material governance issues have been detected;
(f)
all evaluated tenders are non-responsive;
(g)
force majeure;
(h)
civil commotion, hostilities or an act
of war; or
(i)
upon receiving subsequent evidence of engagement
in fraudulent or corrupt practices by the tenderer.
(2)
An accounting officer who terminates procurement or asset disposal proceedings
shall give the Authority a written report on the termination within fourteen
days.
(3)
A report under subsection (2) shall include the reasons for the termination.
(4)
An accounting officer shall notify all persons who submitted tenders of the
termination within fourteen days of termination and such notice shall contain
the reason formtermination.
64. (1) All communications and enquiries between parties
on procurement and asset disposal proceedings shall be in writing. Form of communications, electronic procurement
and asset disposal.
(2)
Information and Communication Technologies (ICT) may be used in procurement and
asset disposal proceedings as prescribed with respect to—
(a) publication of notices;
(b) submission and opening of tenders;
(c) tender evaluation;
(d) requesting for information on the tender
or disposal process;
(e) dissemination of laws, regulations and
directives;
(f) digital signatures; or
(g) as may be prescribed by regulations.
nderer
may communicate with the procuring entity on the
procurement
proceedings.
66. (1) A person to whom this Act applies shall
not be involved in any corrupt, coercive, obstructive, collusive or fraudulent
practice; or conflicts of interest in any procurement or asset disposal
proceeding. Corrupt, coercive, obstructive, collusive
or fraudulent practice, conflicts of interest.
68. (1) An accounting officer of a procuring
entity shall keep records for each procurement for at least six years after the
resulting contract has been completed or, if
no
contract resulted, after the procurement proceedings were terminated.
Procurement
records.
(2)
The records for a procurement shall include —
(a)
a brief description of the goods, works or services being procured;
(b)
if a procedure other than open tendering was used, the reasons for doing so;
(c)
if, as part of the procurement procedure, anything was advertised in a
newspaper or other publication, a copy of that advertisement as it appeared in
that newspaper or publication;
(d)
for each tender, proposal or quotation that was submitted —
(i)
the name and address of the person making the submission;
(ii)
the price, or basis of determining the price, and a summary of the other
principal terms and conditions of the tender, proposal or quotation; and
(iii)
a summary of the proceedings of the opening of tenders, evaluation and comparison
of the tenders, proposals or quotations, including the evaluation criteria used
as prescribed;
(e)
if the procurement proceedings were terminated without resulting in a contract,
an explanation of why they were terminated;
(f)
a copy of every document that this Act requires the procuring entity to
prepare; and
(g)
such other information or documents as are prescribed.
(3)
After a contract has been awarded to any person or the procurement proceedings
have been terminated, the procuring entity shall, on request, make the records
for the
procurement
available to a person who submitted a tender, proposal or quotation, or any interested member of the public
where such information held is aligned to the
principle
of public interest or, if direct procurement was used, a person
with whom the procuring entity was negotiating.
(4)
The accounting officer of a procuring entity may charge a fee for making the
records available but the fee shall not exceed the costs of making the records
available to any person.
(5)
No disclosure shall be made under subsection (3) that would be contrary to
section 67(1), but a disclosure, under subsection (3), of anything described in
paragraphs
(a)
to (f) of subsection (2) shall be deemed not to be contrary to paragraphs (b)
to (d) of section 67(1).
(6)
An accounting officer of a procuring entity shall maintain a proper filing
system with clear links between procurement and expenditure files that
facilitates an audit trail.
69. (1) All approvals relating to any procedures
in procurement shall be in writing and properly dated, documented and filed. Procurement approvals.
(2)
No procurement approval shall be made to operate retrospectively to any date
earlier than the date on which it is made except on procurements in response to
an urgent need. offence.
79. (1) A tender is responsive if it conforms to
all the eligibility and other mandatory requirements in the tender documents . Responsiveness of tenders.
(2)
A responsive tender shall not be affected by —
(a)
minor deviations that do not materially depart from the requirements set out in
the tender documents; or
(b)
errors or oversights that can be corrected without affecting the substance of
the tender.
(3)
A deviation described in subsection (2)(a) shall —
(a)
be quantified to the extent possible; and
(b)
be taken into account in the evaluation and comparison of tenders.
80. (1) The evaluation committee appointed by the
accounting officer pursuant to section 46 of this Act, shall evaluate and
compare the responsive tenders other than
tenders
rejected under section 82(3). Evaluation
of tenders.
(2)
The evaluation and comparison shall be done using the procedures and criteria
set out in the tender documents and, in the tender for professional services,
shall have
regard
to the provisions of this Act and statutory instruments issued by the relevant
professional associations regarding regulation of fees chargeable for services rendered.
(3)
The following requirements shall apply with respect to the procedures and
criteria referred to in subsection (2) —
(a)
the criteria shall, to the extent possible, be objective and quantifiable;
(b)
each criterion shall be expressed so that it is applied, in accordance with the
procedures, taking into consideration price, quality, time and service for the
purpose of evaluation; and
(4)
The evaluation committee shall prepare an evaluation report containing a
summary of the evaluation and comparison of tenders and shall submit the report
to the person responsible for procurement for his or her review and
recommendation.
(5)
The person responsible for procurement shall, upon receipt of the evaluation
report prepared under subsection (4), submit such report to the accounting
officer for approval as may be prescribed in regulations
(6)
The evaluation shall be carried out within a maximum period of thirty days.
(7)
The evaluation report shall be signed by each member of evaluation committee.
81. (1) A procuring entity may, in writing
request a clarification of a tender from tenderer to assist in the evaluation
and comparison of tenders. Clarifications.
(2)
A clarification shall not change the terms of the tender.
82. The tender sum as submitted and read
out during the tender opening shall be absolute and final and shall not be the
subject of correction, adjustment or amendment in any way by any person or
entity. No correction of errors.
83. (1) An evaluation committee may, after tender
evaluation, but prior to the award of the tender, conduct due diligence and
present the report in writing to confirm and verify the qualifications of the
tenderer who submitted the lowest evaluated responsive tender to be awarded the
contract in accordance with this Act. Post-qualification.
(2)
The conduct of due diligence under subsection (1) may include obtaining
confidential references from persons with whom the tenderer has had prior
engagement.
(3)
To acknowledge that the report is a true reflection of the
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