PUBLIC PROCUREMENT AND DISPOSAL ACT 2015
helo lets learn of the recently enacted ppda2015,
Application of the Act.
(a)
procurement planning;
(b)
procurement processing;
(c)
inventory and asset management;
(d)
disposal of assets; and
(e)
contract management.
(2)
For avoidance of doubt, the following are not procurements or asset disposals
with respect to which this Act applies —
(a)
the retaining of the services of an
individual for a limited term if, in providing those services, the individual
works primarily as though he or she were an employee, but this shall not apply
to persons who are under a contract of service;
(b)
the transfer of assets being disposed off by
one state organ or public entity to another state organ or public entity
without financial consideration;
(c)
acquiring of services provided by government
or government department;
(d)
acquisition and sale of shares or securities,
fiscal agency by a public entity, investments such as shares purchased by
cooperative societies, state corporations or other public entities;
(e)
procurement and disposal of assets under
Public Private Partnership Act, 2013; and
(f) procurement and disposal of assets under bilateral
or multilateral agreements between the Government of Kenya and any other
foreign government, agency, entity or multilateral agency unless as otherwise
prescribed in the Regulations.
(3)
For greater certainty, all public procurement are procurements with respect to
the application of this Act.
Superiority of the PPDA 2015
5. (1) This Act shall prevail in case of any inconsistency
between this Act and any other legislation or government notices or circulars,
in matters relating to procurement and asset disposal except in cases where procurement of
professional services is governed by an Act of Parliament applicable for such
services.Conflicts with other Acts.
(2)
A provision of an Act that provides for a person or body to approve any work or
expenditure shall not be construed as giving that person or body any power with
respect to the entire procurement proceedings.
6. (1) Subject to the Constitution, where any
provision of this Act conflicts with any obligations of the Republic of Kenya
arising from a treaty, agreement or other convention ratified by Kenya and to
which Kenya is party, the terms of the treaty or agreement shall prevail.Conflict with international
agreements.
(2)
Where the Republic of Kenya is required under the terms of any treaty or
convention to which she is party, to contribute from her resources, in any
form, to any procurement activities within Kenya, either in part or wholly,
jointly or separately, procurement through such contributions shall be—
(a)
in discrete activities where possible; and
(b)
subject to the applicable provisions of this Act.
(3)
The disposal of any or all of the goods or public assets accruing to Kenya as a
result of procurement activities to which subsections (1) apply shall be
subject to the provisions of this Act.
(4)
Where a procurement to which subsection (1) applies favours an external
beneficiary—
(a)
the procurement through contributions made by Kenya, shall be undertaken in
Kenya through contractors registered in Kenya; and
(b)
all relevant insurances shall be placed with companies registered in Kenya and
goods shall be transported in carriages registered in Kenya.
PART II― BODIES
INVOLVED IN THE REGULATION OF PUBLIC PROCUREMENT AND ASSET DISPOSAL
A. Role of the National Treasury in public
procurement and assets disposal
7. (1) The National Treasury established under
section 11 of the Public Finance Management Act, 2012, shall be responsible for
public procurement and asset disposal policy formulation.
Role
National Treasury on public procurement and assets disposal. No. 18 of 2012.
(2)
In the performance of its role under subsection (1), the National Treasury
shall—
(a)
formulate, evaluate, promote and research on national
and county public procurement and asset disposal policy and standards;
(b)
develop policy guidelines for the efficient procurement
management and disposal system for national executive;
(c)
design and prescribe an efficient procurement
management system for the national and county governments to ensure transparent
procurement and asset disposal as contemplated by Article 227 of the
Constitution:
Provided
that the National Treasury shall prescribe through Regulations a system under this
paragraph which operates, respects and promotes the distinctiveness of the
national and county levels of government;
(d)
provide technical assistance on procurement
and assist in the implementation and operation of the public procurement and
asset disposal system;
(e)
manage and administer the scheme of service
of the procurement and supply chain management services cadre for the national
government;
(f)
carry out general research, develop and
promote electronic procurement strategies and policies in both the national and
county governments including state corporations and other government agencies;
(g)
carry out review of procurement and supply
chain management system to assist procuring entities;
(h)
develop and review policy on procurement of common
user items in the public sector both at national and county government levels;
(i)
develop policy on the administration of
preference and reservations scheme and registration of target groups under
preference and reservations scheme as prescribed;
(j)
facilitate affirmative action for
disadvantaged groups in accordance with the Constitution and advance their
participation in the procurement process
(k)
develop and review policies and guidelines on
the management of assets;
(l)
issue guidelines to public entities with
respect to procurement matters; and
(m)
perform such other functions as prescribed by
this Act or any other legislation.
(3)
The National Treasury may prescribe an institutional
framework to provide for the procurement, administration and management of
common user items for the national government.
B—Public Procurement Regulatory
Authority
8. (1) There is established an authority to be
known as the Public Procurement Regulatory Authority which shall be a body
corporate with perpetual succession and a common seal and shall in its
corporate name, be capable of—
The Public Procurement Regulatory Authority.
(a)
suing and being sued;
(b)
acquiring, safeguarding, holding, charging and disposing of moveable and immoveable
property; and
(c)
doing or performing all such other things or acts for the proper discharge of
its functions under his Act, which may be lawfully done by a body corporate.
(3)
The Authority may for the purposes of ensuring access to its services in
accordance with Article 6 of the Constitution establish such offices in
regional locations as it may deem necessary for its operations.
9. (1) The functions of the Authority shall be to— Functions of Authority.
(a)
monitor, assess and review the public procurement
and asset disposal system to ensure that they respect the national values and
other provisions of the Constitution, including Article 227 and make
recommendations for improvements;
(b)
monitor the public procurement system and report
on the overall functioning of it and present to the Cabinet Secretary and the county executive member for
finance in each county, such other reports and recommendations for
improvements;
(c)
enforce any standards developed under this
Act;
(d)
monitor classified procurement information, including
that of specific items of security organs and make recommendations to the Cabinet Secretary;
(e)
monitor the implementation of the preference and reservation schemes by
procuring entities;
(f)
prepare, issue and publicise standard public procurement
and asset disposal documents and formats to be used by public entities and
other stakeholders;
(g)
provide advice and technical support upon request;
(h)
to investigate and act on complaints received
on procurement and asset disposal proceedings from procuring entities,
tenderers, contractors or the general public that are not subject of administrative
review;
(i)
research on the public procurement and asset disposal
system and any developments arising from the same;
(j)
advise the Cabinet Secretary on the setting
of standards including international public procurement and asset disposal
standards;
(k)
develop and manage the State portal on procurement
and asset disposal and ensure that it is available and easily accessible;
(l)
monitor and evaluate the preference and reservations provided for under this
Act and provide quarterly public reports;
(m)
create a central repository or database that includes—
(i)
complaints made on procuring entities;
(ii)
a record of those prohibited from participating
in tenders or those debarred;
(iii)
market prices of goods, services and works;
(iv)
benchmarked prices;
(v)
State organs and public entities that are non-compliant
with procurement laws;
(vi)
statistics related to public procurement and asset
disposal;
(vii)
price comparisons for goods, services and works; and
(viii)
any information related to procurement that may
be necessary for the public;
(n)
inform, as applicable, the Cabinet Secretary,
Parliament, the relevant County Executive member for finance, the relevant
County Assembly or Auditor-General on issues of noncompliance with procurement
laws once the relevant State organ or public entity ignores the written
directives of the Authority, including material breaches of the measures
established under this Act;
(o)
generally report to Parliament and the
relevant county assembly;
(p)
develop a code of ethics to guide procuring entities
and winning bidders when undertaking public procurement and disposal with State
organs and public entities;
(q)
in undertaking its functions, cooperate with
state and non-state actors with a view to obtaining recommendations on how
public procurement and disposal can be improved;
(r)
ensure the procurement entities implement the preference and reservations and
provide data to the Authority disaggregated to indicate the number of
disadvantaged groups that have benefitted;
(s)
perform such other functions and duties as
are provided for under this Act and any other relevant law.
(2) If in
the course of monitoring in accordance with section 9(1)(a), the Authority is
of the opinion that civil or criminal proceedings ought to be preferred against
a State Organ, public entity, state officer or public officer, the Authority
shall refer the matter to the relevant authorities.
Comments