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VIII—CLASSIFIED
PROCUREMENT METHODS AND PROCEDURES
90. (1) For the avoidance of doubt, the
provisions of this Act shall also apply to all state organs and public entities
including the national security organs as established under the Constitution
and any other legislation. Classified
procurements and disposals
(2)
National security organs and other procuring entities that deal with
procurements of classified nature shall manage their procurements and disposals
on the basis of a dual list maintained by the respective procuring entity as
prescribed.
(3)
Procuring entities other than national security organs referred to under
sub-section (1), that procure classified items shall request the Cabinet
Secretary for approval of the classified list of items annually.
(4)
The dual list shall distinguish items subject to open and to classified
procurement and disposal proceedings respectively.
(5)
Procuring entities that deal with classified items shall agree annually with
the Cabinet Secretary on the category of classified items to be included in the
classified
list
of procurements or disposals to be applied.
(6)
The Cabinet Secretary shall submit the list of classified items to Cabinet for
approval.
(7)
Any person carrying his or her duties or responsibilities under this section
shall maintain confidentiality and shall not disclose any information that may
otherwise compromise national security.
(8)
A person who in order to avoid open tendering, procures items that ought to be
subjected to open tendering as though they were included in the list of
classified items
commits
an offence.
PART IX—METHODS
OF PROCUREMENT OF GOODS, WORKS AND SERVICES
91. (1) Open
tendering shall be the preferred procurement method for procurement of goods,
works and services. Choice of procurement procedure.
(2)
The procuring entity may use an alternative procurement procedure only if that
procedure is allowed and satisfies the conditions under this Act for use of
that method.
(3)
Despite sub-sections (1) and (2) open tendering shall be adopted for
procurement of goods, works and services for the threshold prescribed in the
respective national and county Regulations
92. Subject to this Act and prescribed
provisions, an accounting officer of a procuring entity shall procure goods,
works or services by a method which may include
any
of the following — Methods
of procurement.
(a)
open tender;
(b)
two-stage tendering;
(c) design competition;
(d)
restricted tendering;
(e)
direct procurement;
(f)
request for quotations;
(g)
electronic reverse auction;
(h)
low value procurement;
(i)
force account;
(j)
competitive negotiations;
(k)
request for proposals;
(l)
framework agreements; and
(m)
any other procurement method and procedure as prescribed in regulations and
described in the tender documents.
93. (1) Subject to provisions of subsection (2),
an accounting officer of a procuring entity where applicable, may conduct a
pre-qualification procedure as a basic procedure prior to adopting an
alternative procurement method other than open tender for the purpose of identifying
the best few qualified firms for the subject procurement.
Pre-qualification.
(2)
Pre-qualification shall be for complex and specialized goods, works and
services.
(3)
In conducting a pre-qualification procedure an accounting officer of a
procuring entity shall publish an invitation notice to candidates to submit
applications to be pre-qualified.
(4)
The invitation referred to in paragraph (2) shall include—
(a)
the name, address and contact details of the procuring
entity;
(b)
outline of the procurement requirement,
including the nature and quantity of goods, works or services and the location
and timetable for delivery or performance of the contract;
(c)
statement of the key requirements and
criteria to pre-qualify;
(d)
instructions on obtaining the
pre-qualification documents, including any price payable and the language of
the documents; and
(e)
instructions on the location and deadline for
submission of applications to pre-qualify;
(f)
applicable preferences and reservations or
any conditions arising from the related policy;
(g)
declaration that it is open to bidders who
meet the eligibility criteria; and
(h)
requirement that only bidders with capacity
to perform can apply.
94. (1) An accounting officer of a procuring entity
shall promptly issue pre-qualification documents to all candidates who request
them and shall maintain a record of
all
candidates to whom documents are issued. Prequalification
documents.
(2)
The pre-qualification document shall contain all
the
information specified in section 93 and any other
information
necessary for the potential candidates to
prepare
and submit applications to be pre-qualified.
(3)
Without prejudice to the generality of paragraph
(2),
such information shall include—
(a)
the name, address and contact details of the
procuring
entity;
(b)
details of the procurement requirements,
including
the
nature and quantity of goods, works or services
and
the location and timetable for delivery or
performance
of the contract;
(c)
instructions on the preparation of
applications to
pre-qualify,
including any standard forms to be
submitted
and the documentary evidence and
information
required from candidates;
(d)
instructions on the sealing, labelling and
submission
of
applications to pre-qualify, including the location
and
deadline for submission; and
(e)
information on how applications will be
evaluated.
(4)
The accounting officer of a procuring entity shall
allow
the candidates at least fourteen days to prepare and
submit
their applications to be pre-qualified.
(5)
The accounting officer of a procuring entity shall
promptly
respond to all requests for any clarification
relating
to the pre-qualification document where such
requests are
received before the deadline for submission.
Details of Procurement Methods
A - Open Tender
96. (1) The accounting officer of a procuring
entity shall take such steps as are reasonable to bring the invitation to
tender to the attention of those who may wish
to
submit tenders. Advertisement.
(2)
Despite the provisions of subsection (1), if the estimated value of the goods,
works or services being procured is equal to, or more than the prescribed
threshold
for
county, national and international advertising, the procuring entity shall
advertise in the dedicated Government tenders’ portals or in its own website,
or a notice in at least two daily newspapers of nationwide circulation.
(3)
In addition to subsection (2) a procuring entity shall—
(a)
use Kenya’s dedicated tenders portal or any other electronic advertisements as
prescribed; and
(b)
post advertisements at any conspicuous place reserved for this purpose in the
premises of the procuring entity.
(4)
In regard to county-specific procurements pursuant to section 33, the procuring
entity shall advertise the notice inviting expressions of interest in the
dedicated
Government
tenders portal; in its own website, or in at least one daily newspaper of
county-wide circulation.
(5)
Where the estimated value of the goods, works or services being procured is
below the prescribed threshold for national advertising, the procuring entity
shall advertise
using
the options available in subsection (3)(a) and (b).
97. (1) The time allowed for the preparation of
tenders shall not be less than the minimum period of time prescribed for the
purpose of this subsection. Time
for preparing
tenders.
(2)
For the purpose of this section, the time allowed for the preparation of
tenders shall be exclusive of the day of the tender notice.
98. (1) Upon advertisement, the accounting
officer of a procuring entity shall immediately provide copies of the tender
documents and in accordance with the invitation to tender and the accounting
officer shall upload the tender
document
on the website. Provision of tender documents.
(2)
The accounting officer of a procuring entity may
charge
such fees as may be prescribed for copies of the
tender
documents.
B— Two-Stage
Tendering
99. (1) A procuring entity may engage in
procurement by means of two-stage tendering when, due to complexity and
inadequate knowledge on its part or advancements in
technology,
it is not feasible for the procuring entity to formulate detailed
specifications for the goods or works or non-consultancy services in order to
obtain the most satisfactory solution to its procurement needs. Two-Stage Tendering.
(2)
The provisions of this section shall apply to twostage tendering proceedings
except to the extent those provisions are excluded from in this section and the
tendering procument shall call upon tenderers to submit, in the first stage of
the two-stage tendering proceedings,initial tenders containing their proposals
without a tender
price.
(3)
In the second stage, the procuring entity shall invite tenderers
3)
In the second stage, the procuring entity shall invite tenderers whose tenders
were retained to submit final tenders with prices with respect to a single set
of specifications and in formulating those specifications, the procuring entity
may modify any aspect, originally set forth in the tendering document.
(4)
Any such modification or addition shall be communicated to tenderers in the
invitation to submit final tenders and a tenderer not wishing to submit a final
tender
may
withdraw from the tendering proceedings without forfeiting any tender security
that they may have been required to provide.
(5)
The final tenders shall be evaluated and compared in order to ascertain the
successful tenderer.
(6)
The specifications developed under subsection (3) shall meet the requirements
specified in this Act.
(7)
When developing the specifications, the procuring entity may engage experts.
C–
Design Competition
100. An accounting officer of a procuring entity
may use a design competition procedure for the purpose of determining the best
architectural, physical planning and
any
other design scheme, engineering, graphic or any other design
scheme for its use.
Condition
for use of Design Competitions.
101. (1) In design competitions, a procuring
entity shall— Procedure for design competition.
(a)
invite design proposals through a public advertisement;
(b)
ensure the preparation of an invitation sets out the following—
(i)
the name and address of the procuring entity;
(ii)
the tender number assigned to the procurement proceedings by the procuring
entity;
(iii)
description of technical and functional needs;
(iv)
an explanation of where and when tenders shall be submitted and where and when
the tenders will be opened;
(v)
a statement that those submitting tenders or their representatives may attend
the opening of the design proposals;
(vi)
a statement that a copyright or other intellectual property of the top three
shall vest in the State.
(2)
The evaluation of design proposals shall be undertaken by an evaluation
committee established under this Act.
(3)
The design process shall be as prescribed in the Regulations.
(4)
Prior to publishing an invitation notice, an accounting officer of a procuring
entity shall prepare tender documents and appoint at as part of ad hoc evaluation
committee
instituted pursuant to this Act at least one independent lay assessor, and
technical assessors recommended by the professional regulatory body governing
the design competition.
(5)
The best three assessed design schemes shall receive as a prize an honorarium
as provided for in the internal policies of the procuring entity subject to the
guidelines set out in the applicable county or national level or the
Regulations to this Act.
(6)
In participating in design competitions, all bidders shall undertake to
transfer all copyrights, intellectual property rights and patents relating to
their designs to the procuring entity.
(7)
Upon completion of the design competition, all the submitted design schemes
shall become property of the procuring entity.
D–
Restricted Tendering
102. (1) An accounting officer of a procuring
entity may use restricted tendering if any of the following conditions are
satisfied— Restricted tendering.
(a)
competition for contract, because of the complex or specialised nature of the
goods, works or services is restricted to prequalified tenderers resulting from
the procedure under section 94;
(b)
the time and cost required to examine and evaluate a large number of tenders
would be disproportionate to the value of the goods, worksor services to be
procured; or
(c)
if there is evidence to the effect that there are only a few known suppliers of
the whole market of the
(d)
an advertisement is placed , where applicable, on the procuring entity website
regarding the intention to procure through limited tender.
(2)
An accounting officer of a procuring entity may engage in procurement by means
of restricted tendering in such manner as may be prescribed.
E–
Direct Procurement
103. (1) A procuring entity may use direct procurement
as allowed under sub-section (2) as long as the purpose is not to avoid
competition. When direct procurement may be used.
(2)
A procuring entity may use direct procurement if any of the following are
satisfied —
(a)
the goods, works or services are available only from a particular supplier or
contractor, or a particular supplier or contractor has exclusive rights in
respect of the goods, works or services, and no reasonable alternative or
substitute exists;
(b)
due to war, invasion, disorder, natural disaster or there is an urgent need for
the goods, works or services, and engaging in tendering proceedings or any other
method of procurement would therefore be impractical, provided that the circumstances
giving rise to the urgency were neither foreseeable by the procuring entity nor
the result of dilatory conduct on its part;
(c)
owing to a catastrophic event, there is an urgent need for the goods, works or
services, making it impractical to use other methods of procurement because of
the time involved in using those methods;
(d)
the procuring entity, having procured goods, equipment, technology or services
from a supplier or contractor, determines that additional supplies shall be
procured from that supplier or contractor for reasons of standardization or because
of the need for compatibility with existing goods, equipment, technology or services,
taking into account the effectiveness of the original procurement in meeting
the needs of the procuring entity, the limited size of the proposed procurement
in relation to the original procurement, the reasonableness of the price and the
unsuitability of alternatives to the goods or services in question;
(e)
for the acquiring of goods, works or services provided by a public entity
provided that the acquisition price is fair and reasonable and compares well with known prices of
goods, works or services in the circumstances.
(3)
A public officer who contravenes the provisions of subsection (2) commits and
offence.
104. An accounting officer of a procuring entity
shall adhere to the following procedures with respect to direct procurement — Procedure for direct procurement.
(a)
issue a tender document which shall be the basis of tender preparation by
tenderer and subsequent negotiations.
(b)
appoint an ad hoc evaluation
committee pursuant to section 46 to negotiate with a person for the supply of
goods, works or non-consultancy services being provided;
(c)
ensure appropriate approvals under this Act have been granted ;
(d)
ensure the resulting contract is in writing and signed by both parties.
F –Request for Quotations
105. A procuring entity may use a request for quotations
from the register of suppliers for a procurement if— When request for quotations may be used.
(a)
the estimated value of the goods, works or non consultancy services being
procured is less than or equal to the prescribed maximum value for using
requests for quotations as prescribed in
Regulations;
(b)
the procurement is for goods, works or nonconsultancy
services
that are readily available in the market; and
(c)
the procurement is for goods, works or services
for
which there is an established market.
106. (1) A procuring entity shall prepare a
request for quotations that sets out the following — Procedure for request for quotations.
(a)
the name and address of the procuring entity;
(b)
the specific requirements prepared under section 67 relating to the goods,
works or services being procured;
(c)
an explanation of where and when quotations shall be submitted; and (d)
anything else required under this Act or the Regulations to be set out in the
request for quotations.
(2)
An accounting officer of a procuring entity shall deal with the request for
quotations in accordance with the following —
(a)
the accounting officer of a procuring entity shall give the request to such
persons as are registered by the procuring entity;
(b)
the request shall be given to as many persons as necessary to ensure effective
competition and shall be given to at least three persons, unless that is not
possible;
(c)
the accounting officer of a procuring entity shall give the request to each
person early enough so that the person has adequate time to prepare a quotation;
(d)
at least three persons shall submit their quotations prior to evaluation.
(3)
The successful quotation shall be the quotation with the lowest price that
meets the requirements set out in the request for quotations.
(4)
Where the lowest price is above the prevailing market rates, the request for
quotations shall be cancelled or terminated in accordance with the cancellation
and
termination
procedures set out in this Act.
(5)
The following shall apply with respect to the contract resulting from a
procurement by a request for quotations —
(a)
the procuring entity shall place a purchase order with the person submitting
the successful quotation;
(b)
the person submitting the successful quotation shall confirm the purchase order
in writing; and
(c)
an accounting officer shall consider recommendations for award arising from a
contract
under procurement by a request for quotations for approval or rejection.
G–
Low - Value Procurement
107. A procuring entity may use a low-value procurement
procedure if—
When low-value procurement may be used.
(a)
the entity is procuring low value items which are not procured on a regular or
frequent basis and are not covered in framework agreement;
(b)
the estimated value of the goods, works or nonconsultancy services being
procured are less than or equal to the maximum value per financial year for
that low-value procurement procedure as may be prescribed.
108. The procedure and conditions for the use of
lowvalue procurement method by different classes of public entities or
different classes of goods, works or services
being
procured shall be as prescribed in
the regulations. Procedure
for lowvalue procurement.
H –
Force Account
109. (1) A procuring entity may use force account
by making recourse to the state or public officers and using public assets,
equipment and labour. Force Account.
(2)
A procuring entity may use force account by making recourse to the state or
public officers and using public assets, equipment and labour which are
competitive and where—
(a)
quantities of work involved are small and scattered or in remote locations for
which
qualified
construction firms are unlikely to tender at reasonable price and the
quantities of works cannot be defined in advance;
(b)
unforeseen and urgent work is required to be carried out without disrupting
on-going
operations;
(c)
the procuring entity is to complete works delayed by the contractor after the
written warnings did not yield any tangible results.
(3)
This method shall only be applied—
(a)
with the prior approval of the accounting officer;
(b)
within the limit prescribed in Regulations;
(c)
where the total cost of procuring the goods, works and non-consultancy services
are, at most, set at the prevailing market rate.
(4)
The procedure to use force account shall be as prescribed in the Regulations.
I –
Electronic Reverse Auction
110. The Authority may in exceptional
circumstances approve a system of electronic reverse auction method of procurement
for goods, works or non-consultancy services
by
a procuring entity. Reverse Auction.
111. For an accounting officer of a procuring
entity to be qualified to use the reverse auction method it shall possess— Conditions for use of Reverse Auctions.
(a)
a procurement portal;
(b)
an appropriate secure software with electronic procurement capabilities and
functionalities approved by the Authority;
112. In the reverse auction method of procurement—
Procedure for Reverse Auction.
(a)
a procuring entity shall—
(i)
invite all registered suppliers in the specific category to compete;
(ii)
advertise its requirements on its website including the period of time and
goods
specifications;
(b)
the prices of bidders within the prescribed time shall be visible to other
bidders without revealing the bidder’s identity; and
(c)
a pre-qualified supplier shall not revise its bid upwards within the prescribed
time.
113. Subject to the reserve price set by the
procuring entity, the successful bid shall be the bid with lowest price at the
bid submission deadline. Successful reverse auctioneering bid.
J—Framework
Agreement
114. (1) A procuring entity may enter into a framework
agreement through open tender if— Framework
agreement.
(a)
the procurement value is within the thresholds prescribed under Regulations to
this Act;
(b)
the required quantity of goods, works or nonconsultancy services cannot be
determined at the time of entering into the agreement; and
(c)
a minimum of seven alternative vendors are included for each category
(2)
The maximum term for the framework agreement shall be three years and, for
agreements exceeding one year, a value for money assessment undertaken annually
to
determine
whether the terms designated in the framework agreement remain competitive.
(3)
When implementing a framework agreement, a procuring entity may—
(a)
procure through call-offs order when necessary; or
(b)
invite mini-competition among persons that have entered into the framework
agreement in the respective category.
(4)
For the purposes of subsection (3)(a), “call-offs order” means an order made
using a framework agreement with one or more contractors, suppliers or
consultants for a defined quantity of works, goods, consultancy covering terms
and conditions including price that users require to meet the immediate
requirements.
(5)
Evaluation of bids under category specified by subsection (3)(b) shall be
undertaken by an evaluation committee as provided for under this Act.
(6)
A procurement management unit shall prepare and submit to the accounting
officer with a copy to the internal auditor quarterly reports detailing an
analysis of items procured through framework agreements and these reports shall
include, an analysis of pattern of usage, procurement costs in relation to the
prevailing market rates and any
recommendations.
(7)
For greater certainty procurements undertaken through framework agreements may
be subject to preferences and reservations as provided for in this Act.
PART X— PROCUREMENT OF CONSULTANCY SERVICES
115. This Part applies to procurement of
professional services which are predominately intellectual or advisory in nature.
Application of this Part.
116. (1) An accounting officer of a procuring
entity may use a request for proposals for a procurement if — When request for proposals may be used
(a)
the procurement is of services or a combination of goods and services; and
(b)
the services to be procured are advisory or otherwise of a predominately
intellectual nature.
(2)
Subject to any prescribed restrictions, a procuring entity may use a request
for proposals in combination with other methods of procurement under this Act.
117. Initiation of the procurement shall— Terms of reference and invitation of tenders from shortlisted
firms.
(a)
be subject to section 74 of the Act.
(b)
include in the terms of reference the expected milestones or performance
benchmarks to be realized throughout the consultancy period and the related
timelines.
118. (1) The accounting officer of a procuring
entity may — Request for proposal inviting expression
of interest.
(a)
request for proposal through advertisement; or
(b)
invite expression of interests or utilize the register provided for under
section 57 of this Act.
(2)
The accounting officer of a procuring entity shall invite proposals from only
the persons who have been shortlisted as qualified to submit their tenders
within a
period
as prescribed.
119. (1) An accounting officer of a procuring
entity may prepare a notice inviting interested persons to submit Notice inviting expressions of interest. expressions of interest as prescribed.
(2)
The notice inviting expressions of interest shall setnout the following —
(a)
the name and address of the procuring entity;
(b)
a brief description of the consultancy services being procured and, if
applicable, the goods being procured;
(c)
eligibility and the qualifications necessary to be invited to submit a
proposal; and
(d)
an explanation of where and when expressions of interest shall be submitted.
(3)
An accounting officer of a procuring entity shall advertise the notice inviting
expressions of interest in the dedicated government’s advertising tenders’
portal and in
its
own website, or in at least one daily newspaper of nation-wide circulation.
(4)
In regard to county-specific procurements pursuant
to
section 33 of this Act, an accounting officer of a procuring entity shall advertise
the notice inviting expressions of interest in the dedicated government’s advertising
tenders portal, its own website, or in at least one daily newspaper of
county-wide circulation as
prescribed.
120. The provisions of section 78 of this Act with
respect to the opening of proposals shall apply with modifications. Opening of proposals.
121. (1) The accounting officer of a procuring
entity shall, in writing, record the results of its evaluation of applications
for expression of interest using the evaluation criteria in the expression of
interest notice and documents and shall state which candidates were found to be
qualified and the reasons why any candidates were not qualified.
Evaluation
and shortlisting.
(2)
The evaluation and comparison shall be done using the procedures and criteria
set out in the expression of interest documents and shall, in the case of
expression of interest for professional services, 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)
Subject to total proposals received, a minimum of six proposals shall be
shortlisted, but where less than six
proposals
have been received, a minimum of three
proposals
shall be shortlisted.
(4)
The record of results prepared under subsection (1)
shall
be submitted to the accounting officer for review and
approval.
122. (1) After the deadline for submitting
expressions
of
interest the accounting officer of a procuring entity shall
examine
each expression of interest to determine if the
person
submitting it is qualified to be invited to submit a
proposal
in accordance with the notice inviting expressions
of
interest.
Determination
of
qualified
persons.
(2)
The accounting officer of a procuring entity shall
simultaneously
notify in writing each of the tenderers of the
results
of the expression of interest.
123. (1) The accounting officers of a procuring
entity
shall
issue every person shortlisted who is qualified to be
invited
to submit a request for proposals and a copy of the
terms
of reference.
Request
for
proposals
to
qualified
persons.
(2)
The request for proposals shall set out the
following
—
(a)
the name and address of the accounting officer of
the
procuring entity;
(b)
the general and specific conditions to which the
contract
will be subject,
(c)
instructions for the preparation and submission of
proposals
which may require that a proposal
include
a technical proposal and a financial
proposal
as prescribed;
(d)
an explanation of where and when proposals shall
be
submitted;
(e)
the procedures and criteria to be used to evaluate
and
compare the proposals including —
(i)
the procedures and criteria for evaluating the
technical
proposals which shall include a
determination
of whether the proposal is
responsive;
(ii)
the procedures and criteria for evaluating the
financial
proposals; and
(iii)
any other additional method of evaluation,
which
may include interviews or
presentations,
and the procedures and
criteria
for that additional method;
(f)
a statement giving notice of the restriction, in
section
130, on entering into other contracts; and
(g)
anything else required, under this Act or the
Regulations
to be set out in the request for
proposals.
124. (1) The Procuring Entity shall select Quality
and
Cost
Based Selection (QCBS) method as the preferred
method
to be used to evaluate proposals and shall state the
selection
procedure in the Request for Proposals.
Selection
methods
for
requests for
proposals.
(2)
For the purposes of subsection (1), “Quality and
Cost
Based Selection” method is a method that uses a
competitive
process that takes into account the quality of
the
proposal and the cost of the services in the selection of
the
successful firm.
(3)
The request for proposal shall request submission
of
both technical and financial proposals at the same time,
but
in separate envelopes.
(4)
Subject to the foregoing provisions of this section,
in
the evaluation of tenders by public entities, the criteria
for
assessing the technical and financial capability of the
tenderers
shall be as may be prescribed by the accounting
officer
in the tender documents.
(5)
The request for proposal under subsection (3) shall
provide
either the estimated budget or the estimated time of
key
experts, specifying that this information is given as an
indication
only and that consultants shall be free to propose
their
own estimates.
(6)
Subject to prescribed restrictions, a procuring
entity
may use any of the following alternatives in the
selection
methods to evaluate proposals and shall state the
selection method
in the Request for Proposals—
(a)
Quality Based Selection (QBS), which focuses on
quality
and selects the highest quality proposal;
(b)
Least Cost Selection (LCS), which selects the
lowest
priced proposal, which meets the entity’s
technical
requirements;
(c)
Consultants Qualifications Selection (CQS);
(d)
Individual Consultants Selection (ICS);
(e)
Fixed Budget Selection; or
(f)
Single Source Selection
(7)
Quality Based Selection method shall be
appropriate
for—
(a)
complex or highly specialized assignments for
which
it is difficult to define precise terms of
reference
and the required input from the
consultants;
(b)
assignments that have a high downstream impact
and
in which the objective is to have the best
experts;
(c)
assignments that can be carried out in
substantially
different ways;
(d)
assignments and professional services
which are
regulated
by Acts of Parliament which stipulate
fees
and charges applicable for such assignments.
(8)
Least-Cost Selection method under subsection
(6)(b)
shall be generally appropriate for selecting
consultants
for assignments of a standard or routine nature
where
well-established practices and standards exist.
(9)
Fixed Budget Selection as a request form for
proposal
under subsection (6)(e) shall indicate the available
budget
and request the consultants to provide their best
technical
and financial proposals in separate envelopes,
within
the budget.
(10)
Fixed budget selection method is appropriate only
when
the assignment is simple and can be precisely defined
and
when the budget is fixed.
(11)
Proposals under Fixed Budget selection method
that
exceed the indicated budget shall be rejected and the
consultant who has
submitted the highest ranked technical
proposal
among the rest shall be selected and invited to
negotiate
a contract.
(12)
Single Source Selection may be appropriate in the
following
cases, and only if it presents a clear advantage
over
competition—
(a)
where it can be evidenced that goods, works or
services
are available only from a particular
supplier,
or a particular supplier has exclusive
rights
in respect of the consultancy services, and
no
reasonable alternative or substitute exists; or
(b)
for tasks that represent a natural continuation of
previous
work carried out by the firm;
(c)
in exceptional cases, such as, but not limited to,
in
response to natural disasters and for a declared
national
emergency situations.
(13)
The accounting officer shall issue a written
justification
for single-source selection in the context of the
overall
interests of the procuring entity.
(14)
Single Source Selection shall require a placement
of
advertisement of the intention to single source and invite
anyone
who wishes to bid and in the event that there is a
response
to the advert then all interested suppliers shall be
invited
to submit proposals.
(15)
Where alternative methods are selected a report
shall
be prepared and submitted to the Authority for
approval.
125. Time for preparation of proposals shall be in
accordance
with section 97 of this Act.
Time
for preparing
proposals.
126. (1) An evaluation committee of a procuring
entity
shall
examine the proposals received in accordance with
the
request for proposals.
Evaluation
of
proposals.
(2)
The procedures for evaluation of the request for
proposal
shall be by using each selection method set out in
section 124 and as
may be prescribed.
(3)
The evaluation shall be carried out within a
maximum
of twenty-one days, but shorter periods may be
prescribed
in the Regulations for particular types of
procurement.
(4)
When a person submitting the successful bid shall
be
notified, the accounting officer of the procuring entity
shall
at the same time notify in writing all other persons
who
had submitted bids that their bids were not successful
and
give reasons thereof.
(5)
The notice of intention to enter into contract in
subsection
87(2) shall, as applicable, be publicised on the
procuring
entity’s website and other public notice boards
that
do not attract a cost.
127. The successful proposal shall be the
responsive
proposal
with the highest score determined by an
accounting
officer in accordance with procedure and
criteria
set out under section 86 of this Act.
Successful
proposal.
128. (1) The accounting officer may negotiate with
the
person
who submitted the successful proposal and may
request
and permit changes, subject to section 106(2).
Negotiations
with
successful
request
for
proposal
tenderer.
(2)
If the negotiations with the person who submitted
the
successful proposal do not result in a contract, the
accounting
officer may negotiate with the second person
who
submitted the proposal that would have been
successful
had the successful proposal not been submitted.
(3)
Despite subsection (1) and (2) of this section, an
offer
made to any other person shall not have
any price
advantages
over the earlier one.
129. (1) The contract may not vary from the
requirements
of the terms of reference, the request for
proposals
or the terms of the successful proposal except in
accordance
with the following —
Contract
requirements.
(a)
the contract may provide for a different price but
only
if there is a proportional increase or
reduction
in what is to be provided under the
contract;
and
(b)
the variations shall be such that if the proposal,
with those
variations, was evaluated again
section
104, the proposal would still be the
successful
proposal.
(2)
The contract, which shall be in writing, shall set
out
either —
(a)
the maximum amount of money that can be paid
under
the contract; or
(b)
the maximum amount of time that can be paid for
under
the contract.
130. A person who enters into a contract resulting
from
procurement by a request for proposals shall not enter
into
any other subsequent contract for the procurement of
goods,
services or works related to that original contract.
Restriction
on
entering
into related
contracts.
131. An accounting officer of a procuring entity
may
conduct
competitive negotiations as prescribed where—
Competitive
Negotiations.
(a)
there is a tie in the lowest evaluated price by two
or
more tenderers;
(b)
there is a tie in highest combined score points;
(c)
the lowest evaluated price is in excess of
available
budget; or
(d)
there is an urgent need that can be met by several
known
suppliers.
132. In the procedure for competitive
negotiations, an
accounting
officer of a procuring entity shall—
Procedure
for
Competitive
Negotiations.
(a)
identify the tenderers affected by tie;
(b)
identify the tenderers that quoted prices above
available
budget; or
(c)
identify the known suppliers as prescribed.
(2)
In the case of tenderers that quoted above the
available
budget, an accounting officer of a procuring
entity
shall—
(a)
reveal its available budget to tenderers; and
(b)
limit its invitation to tenderers whose
evaluated
prices
are not more than twenty five percent
above the
available budget.
(3)
An accounting officer of a procuring entity shall
request
the identified tenderers to revise their tenders by
submitting
their best and final offer within a period not
exceeding
seven days.
(4)
The revised prices shall not compromise the
quality
specifications of the original tender.
(5)
Tenders shall be evaluated by the evaluation
committee
appointed in the initial process.
133. (1) The successful best and final offer shall
be the
best
rated tender using evaluation criteria set forth in the
tender
documents.
Successful
best and
final
offer.
(2)
Cabinet Secretary may develop further guidelines
on
the powers and thresholds for tender awards.
PART XI—PROCUREMENT
CONTRACTS
134. (1) The accounting officer shall be
responsible for preparation of contracts in line with the award decision. Preparation ofcontra cts.
(2)
An accounting officer of a procuring entity shallensure that all contracts of a
value exceeding Kenya shillings five billion are cleared by the
Attorney-General before they are signed.
(3)
Each Cabinet Secretary shall regularly inform the Cabinet and national treasury
of all government contracts exceeding Kenya shillings five billion.
(4)
Notwithstanding the provision of subsection (3)
above,
any Cabinet Secretary may brief Cabinet on any
other
project of national importance irrespective of its
value.
(5)
This section shall not apply to contracts by
Parliament
and the Judiciary.
135. (1) The existence of a contract shall be
confirmed
through
the signature of a contract document incorporating
all
agreements between the parties and such contract shall
be
signed by the accounting officer or an officer authorized
in
writing by the accounting officer of the procuring entity
and
the successful tenderer.
Creation
of
procurement
contracts.
(2)
An accounting officer of a procuring entity shall
enter
into a written contract with the person submitting the
successful tender
based on the tender documents and any
clarifications
that emanate from the procurement
proceedings.
(3)
The written contract shall be entered into within
the
period specified in the notification but not before
fourteen
days have elapsed following the giving of that
notification
provided that a contract shall be signed within
the
tender validity period.
(4)
No contract is formed between the person
submitting
the successful tender and the accounting officer
of
a procuring entity until the written contract is signed by
the
parties.
(5)
An accounting officer of a procuring entity shall
not
enter into a contract with any person or firm unless an
award
has been made and where a contract has been signed
without
the authority of the accounting officer, such a
contract
shall be invalid.
(6)
The tender documents shall be the basis of all
procurement
contracts and shall, constitute at a minimum—
(a)
Contract Agreement Form;
(b)
Tender Form;
(c)
price schedule or bills of quantities
submitted
by the tenderer;
(d)
Schedule of Requirements;
(e)
Technical Specifications;
(f)
General Conditions of Contract;
(g)
Special Conditions of Contract;
(h)
Notification of Award.
(7)
A person who contravenes the provisions of this
section
commits an offence.
136. (1) If the person submitting the successful
tender
refuses
to enter into a written contract in writing as
required
under section 135 and section 61 of this Act, he
or
she
shall forfeit his or her tender security and the
procurement
process shall proceed with the next lowest
evaluated
tenderer.
Refusal
to sign
contract.
(2)
This section does not apply if the period during
which tenders
shall remain valid has already expired.
137. The accounting officer of a procuring entity
shall
not
request or require, as a condition of awarding a
contract,
that a person who submitted a tender undertake
responsibilities
not set out in the tender documents.
Changes
to contract
responsibilities.
138. (1) The accounting officer of a procuring
entity
shall
publish and publicise all contract awards on their
notice
boards at conspicuous places, and website if
available
within a period as prescribed.
Publication
of
procurement
contracts.
(2)
An accounting officer of a procuring entity shall
report
all contract awards to the Authority as prescribed.
(3)
The Authority shall publish on its website notices
of
the reports on contract awards from procuring entities.
(4)
The Authority shall issue written directions and
guidelines
governing the reporting requirements of contract
awards
by the accounting officer of procuring entities as
may
be prescribed in regulations.
(5)
This section shall not apply to procurement
contracts
awarded by the national security organs.
139. (1) An amendment or a variation to a contract
resulting
from a procurement proceeding is effective only
if
—
Amendments
or
variations
to
contracts.
(a)
the variation or amendment has been approved
in
writing by the respective tender awarding
authority
within a procuring entity; and
(b)
any contract variations or amendments for
goods,
works and services shall be as
prescribed.
(2)
An accounting officer of a procuring entity,
on
the
recommendation of an evaluation committee, may
approve
the request for the following, which request shall
be
accompanied by a certificate from the tenderer making a
justifications
for such cost—
(a)
extension of contract period;
(b)
use of prime costs;
(c)
use of contingencies;
(d)
reimbursable costs; and
(e)
use of provisional sums.
(3)
No contract price shall be varied upwards within
twelve
months from the date of the signing of the contract.
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