Public Procurementand Disposal Act Cap 412C - as Plain Text by MWakili
LAWS OF KENYA The Public ProcuremenT and disPosal acT Chapter 412C Revised Edition 2010 (2005) Published by the National Council for Law Reporting with the Authority of the Attorney General www.kenyalaw.org 2 CAP.
412C Public Procurement and Disposal [Rev.
2010 CHAPTER 412C THE PUBLIC PROCUREMENT AND DISPOSAL ACT ARRANGEMENT OF SECTIONS Section part IprelImInary 1Short title and commencement.
2Purpose of the Act.
3Denitions.
4Application of Act.
5Conicts with other Acts.
6Conicts with international agreements.
7Conict with conditions on donated funds.
part IIBodIes Involved In the regulatIon of puBlIC proCurement APublic Procurement Oversight Authority 8Establishment of Authority.
9Functions of Authority.
10Director-General of the Authority.
11Term of ofce of Director-General.
12Restrictions on activities of Director-General.
13Terms and conditions of service of Director-General.
14Resignation of Director-General.
15Removal of Director-General.
16Staff.
17Acting Director-General.
18Financial arrangements.
19Audit.
20Quarterly and annual reports.
BPublic Procurement Oversight Advisory Board 21Establishment of Advisory Board.
22Composition of Advisory Board.
23Functions of Advisory Board.
24Procedures of Advisory Board.
C - Public Procurement Administrative Review Board 25Review Board.
Rev.
2010] Public Procurement and Disposal CAP.
412C 3 Section part IIIInternal organIsatIon of puBlIC entItIes relatIng to proCurement 26Threshold matrix and segregation of responsibilities.
27Responsibility for complying with Act, etc.
28Procuring agents.
part Ivgeneral proCurement rules 29Choice of procurement procedure.
30Procurement not to be split or inated.
31Qualications to be awarded contract.
32Pre-qualication procedures.
33Limitation on contracts with employees, etc.
34Specic requirements.
35Verication that not debarred.
36Termination of procurement proceedings.
37Form of communications.
38Inappropriate inuence on evaluations, etc.
39Participation in procurement.
40Corrupt practice.
41Fraudulent practice.
42Collusion.
43Conicts of interest.
44Condentiality.
45Procurement records.
46Publication of procurement contracts.
47Amendments to contracts.
48Interest on overdue amounts.
49Inspections and audits relating to contracts.
part vopen tenderIng 50Part sets out requirements.
51Invitation to tender.
52Tender documents.
53Modications to tender documents.
54Advertisement.
55Time for preparing tenders.
56Provision of tender documents.
57Tender security.
58Submission and receipt of tenders.
59Changes to tenders.
60Opening of tenders.
61Extension of tender validity period.
62Clarications.
4 CAP.
412C Public Procurement and Disposal [Rev.
2010 Section 63Corrections of arithmetic errors.
64Responsiveness of tenders.
65Notication if no responsive tenders.
66Evaluation of tenders.
67Notication of award of contract.
68Creation of contract.
69Refusal to sign contract.
70Changes to contract responsibilities.
71International tendering.
part vIalternatIve proCurement proCedures 72Part sets out requirements.
ARestricted tendering 73When restricted tendering may be used.
BDirect procurement 74When direct procurement may be used.
75Procedure.
CRequest for proposals 76When request for proposals may be used.
77Procedure.
78Notice inviting expressions of interest.
79Terms of reference.
80Determination of qualied persons.
81Request for proposals to qualied persons.
82Evaluation of proposals.
83Notication of successful proposal.
84Negotiations with submitter of successful proposal.
85Contract requirements.
86International competition.
87Restriction on entering into certain related contracts.
DRequest for quotations 88When may be used.
89Procedure.
EProcedure for low-value procurements 90When may be used.
91Procedure.
Rev.
2010] Public Procurement and Disposal CAP.
412C 5 Section FSpecially permitted procurement procedure 92Authority may permit.
part vIIadmInIstratIve revIew of proCurement proCeedIngs 93Request for a review.
94Suspension of proceedings, etc.
95Dismissal of frivolous requests, etc.
96Parties to review.
97Completion of review.
98Powers of Review Board.
99Right to review is additional right.
100Right to judicial review to procurement.
part vIIIauthorIty powers to ensure ComplIanCe 101Information to Authority.
102Investigations.
103Powers of investigators.
104Report of investigation.
105Order by Director-General.
106Request for a review.
107Dismissal of frivolous requests, etc.
108Convening of review.
109Parties to review.
110Completion of review.
111Powers of Review Board.
112Appeals.
113Right to review is additional right.
114No investigation if issue before Review Board.
part IXdeBarment from partICIpatIng In proCurement proCeedIngs 115Debarment.
116Opportunity to make representations.
117Request for a review.
118Dismissal of frivolous requests, etc.
119Convening of review.
120Parties to review.
121Completion of review.
122Powers of Review Board.
123Appeals.
124Right to review is additional right.
125List of debarred persons.
6 CAP.
412C Public Procurement and Disposal [Rev.
2010 Section part XdIsposal of stores and equIpment 126Application of Part.
127Responsibility for complying with Act, etc.
128Disposal committee.
129Disposal procedure.
130Directions.
131Restriction on disposal to employees, etc.
132Application of Part VIII to disposals.
part XImIsCellaneous 133Certain procurements and disposals by armed forces, police, etc.
134Consultation meetings.
135Offence-obstruction, etc.
136Offence contravention of orders.
137General Penalty.
138Protection from personal liability.
139Ethics applicable.
140Regulations.
141Availability of Act, etc.
142Transitional provisions.
143Amendment of Cap.
412.
144Other consequential amendments.
First Schedule Provisions Relating to Members of the Advisory Board.
Second Schedule Provisions Relating to the Conduct of Business and Affairs of the Advisory Board.
Third Schedule Transitional Provisions.
Fourth Schedule Consequential Amendments.
Rev.
2010] Public Procurement and Disposal CAP.
412C 7 CHAPTER 412C THE PUBLIC PROCUREMENT AND DISPOSAL ACT L.N.
171/2006, 9 of 2007, Date of Assent: 26th October, 2005 10 of 2010.
Commencement: 1st January, 2007 AN ACT of Parliament to establish procedures for efcient public procurement and for the disposal of unserviceable, obsolete or surplus stores, assets and equipment by public entities and to provide for other related matters ENACTED by the Parliament of Kenya as follows:- part I prelImInary 1.
This Act may be cited as the Public Procurement and Disposal Short title and Act, 2005 and shall come into operation on 1st January, 2007.
commencement.
L.N.
171/2006.
2.
The purpose of this Act is to establish procedures for Purpose of the Act.
procurement and the disposal of unserviceable, obsolete or surplus stores and equipment by public entities to achieve the following objectives (a) to maximise economy and efciency; (b) to promote competition and ensure that competitors are treated fairly; (c) to promote the integrity and fairness of those procedures; (d) to increase transparency and accountability in those procedures; and (e) to increase public condence in those procedures; (f) to facilitate the promotion of local industry and economic development.
3.
(1) In this Act, unless the context otherwise requires Denitions.
accounting ofcer means (a) for a public entity other than a local authority, the person appointed by the Permanent Secretary to the Treasury as the 8 CAP.
412C Public Procurement and Disposal [Rev.
2010 accounting ofcer or, if there is no such person, the chief executive of the public entity; or (b) for a local authority, the town or county clerk of the local authority; Advisory Board means the Public Procurement Oversight Advisory Board established under section 21; Authority means the Public Procurement Oversight Authority established under section 8; candidate means a person who has submitted a tender to a procuring entity; citizen contractor means a natural person or an incorporated company wholly owned and controlled by persons who are citizens of Kenya; contractor means a person who enters into a procurement contract with a procuring entity; corruption has the meaning assigned to it in the Anti Corruption No.
3 of 2003.
and Economic Crimes Act, 2003 and includes the offering, giving, receiving or soliciting of anything of value to inuence the action of a public ofcial in the procurement or disposal process or in contract execution.
Director-General means the Director-General of the Authority provided for under section 10; disposal means the divestiture of public assets, including intellectual and proprietary rights and goodwill and other rights of a procuring entity by any means including sale, rental, lease, franchise, auction or any combination however classied, other than those regulated by any other written law; fraudulent practice includes a misrepresentation of fact in order to inuence a procurement or disposal process or the exercise of a contract to the detriment of the procuring entity, and includes collusive practices amongst bidders prior to or after bid submission designed to establish bid prices at articial non competitive levels and to deprive the procuring entity of the benets of free and open competition; goods includes raw materials, things in liquid or gas form, electricity and services that are incidental to the supply of the goods; Rev.
2010] Public Procurement and Disposal CAP.
412C 9 local contractor means a contractor who is registered in Kenya Cap.
486.
under the Companies Act and whose operation is based in Kenya; Minister means the Minister responsible for matters relating to nance; prescribed means prescribed by regulation under this Act; procurement means the acquisition by purchase, rental, lease, hire purchase, license, tenancy, franchise, or by any other contractual means of any type of works, assets, services or goods including livestock or any combination; procuring entity means a public entity making a procurement to which this Act applies; public entity means (a) the Government or any department of the Government; (b) the courts; (c) the commissions established under the Constitution; (d) a local authority under the Local Government Act; Cap.
265.
(e) a state corporation within the meaning of the State Cap.
446.
Corporations Act; (f) the Central Bank of Kenya established under the Central Cap.
491.
Bank of Kenya Act; (g) a co-operative society established under the Co-operative No.
12 of 1997.
Societies Act; (h) a public school within the meaning of the Education Act; Cap.
211.
(i) a public university within the meaning of the Universities Cap.
210B.
Act; (j) a college or other educational institution maintained or assisted out of public funds; or (k) an entity prescribed as a public entity for the purpose of this paragraph; public funds has the meaning assigned to it in the Exchequer and Cap.
412.
10 CAP.
412C Public Procurement and Disposal [Rev.
2010 Audit Act and includes monetary resources appropriated to procuring entities through the budgetary process, as well as extra budgetary funds, including aid grants and credits, put at the disposal of procuring entities by foreign donors, and revenues of procuring entities; Review Board means the Public Procurement Administrative Review Board established under section 25; services means any objects of procurement or disposal other than works and goods and includes professional, non professional and commercial types of services as well as goods and works which are incidental to but not exceeding the value of those services; the regulations means regulations made under this Act; urgent need means the need for goods, works or services in circumstances where there is an imminent or actual threat to public health, welfare, safety, or of damage to property, such that engaging in tendering proceedings or other procurement methods would not be practicable; works means the construction, repair, renovation or demolition of buildings, roads or other structures and includes (a) the installation of equipment and materials; (b) site preparation; and (c) other incidental services.
(2) A regulation prescribing a public entity for the purpose of paragraph (k) of the denition of public entity in subsection (1) may prescribe a class of public entities or may specify particular public entities.
Application of 4.
(1) This Act applies with respect to Act.
(a) procurement by a public entity; (b) contract management; (c) supply chain management, including inventory and distribution; and (d) disposal by a public entity of stores and equipment that are unserviceable, obsolete or surplus.
Rev.
2010] Public Procurement and Disposal CAP.
412C 11 (2) For greater certainty, the following are not procurements 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 were an employee; (b) the acquiring of stores or equipment if the stores or equipment are being disposed of by a public entity in accordance with the procedure described in section 129 (3) (a); (c) the acquiring of services provided by the Government or a department of the Government.
(3) For greater certainty, the following are procurements with respect to which this Act applies (a) the renting of premises, except as described under subsection (2) (c); (b) the appointing, other than under the authority of an Act, of an individual to a committee, task force or other body if the individual will be paid an amount other than for expenses; (c) the acquiring of real property.
5.
(1) If there is a conict between this Act or the regulations made Conicts with other under this Act and any other Act or regulations, in matters relating to Acts.
procurement and disposal, this Act or the regulations made under this Act shall prevail.
(2) For greater certainty, 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 procurement proceedings.
6.
(1) Where any provision of this Act conicts with any obligations of the Republic of Kenya arising from a treaty or other Conict with international agreement to which Kenya is a party, this Act shall prevail except in agreements.
instances of negotiated grants or loans.
(2) Where a treaty or agreement referred to in subsection (1) contains provisions favourable to citizens and local contractors, full advantage shall be taken of these in the interest of promoting domestic capacity development.
(3) Where the Republic of Kenya is required under the terms of 12 CAP.
412C Public Procurement and Disposal [Rev.
2010 any treaty or agreement to which she is a 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.
(4) 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) and (2) apply shall be subject to the provisions of this Act.
(5) Where a procurement to which subsection (1) applies favours an external beneciary (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.
7.
(1) If there is a conict between this Act, the regulations or Conict with any directions of the Authority and a condition imposed by the donor conditions of funds, the condition shall prevail with respect to a procurement that on donated funds.
uses those funds and no others.
(2) This section does not apply if the donor of funds is a public entity.
part IIBodIes Involved In the regulatIon of puBlIC proCurement APublic Procurement Oversight Authority Establishment of 8.
(1) The Public Procurement Oversight Authority is hereby Authority.
established as a body corporate.
(2) The Authority shall have all the powers necessary or expedient for the performance of its functions.
(3) Without limiting the generality of subsection (2), the Authority shall have perpetual succession and a common seal and shall be capable of Rev.
2010] Public Procurement and Disposal CAP.
412C 13 (a) suing and being sued in its corporate name; and (b) holding and alienating moveable and immovable property.
9.
The Authority shall have the following functions Functions of (a) to ensure that the procurement procedures established under Authority.
this Act are complied with; (b) to monitor the public procurement system and report on the overall functioning of it in accordance with section 20 (3) (b) and present to the Minister such other reports and recommendations for improvements as the Director-General considers advisable; (c) to assist in the implementation and operation of the public procurement system and in doing so- (i) to prepare and distribute manuals and standard docu- ments to be used in connection with procurement by public entities; (ii) to provide advice and assistance to procuring entities; (iii) to develop, promote and support the training and profes- sional development of persons involved in procurement; and (iv) to issue written directions to public entities with respect to procurement including the conduct of procurement proceedings and the dissemination of information on procurements; and (v) to ensure that procuring entities engage procurement professionals in their procurement units.
(d) to initiate public procurement policy and propose amendments to this Act or to the regulations; and (e) to perform such other functions and duties as are provided for under this Act.
10.
(1) The Authority shall have a Director-General who shall be Director-General of the chief executive ofcer of the Authority and who shall be responsible the Authority.
for its direction and management.
14 CAP.
412C Public Procurement and Disposal [Rev.
2010 (2) The Director-General shall be appointed by the Advisory Board with the approval of Parliament.
(3) To be appointed as the Director-General, a person must (a) have a university degree in commerce, business administration, economics, engineering or a related eld of study from a recognized university; (b) have a professional qualication in supply management from a reputable organization; (c) have experience in management; and (d) be of outstanding honesty and integrity.
11.
(1) The term of ofce of the Director-General shall be ve Term of ofce years.
of Director- General.
(2) A person who has held ofce as Director-General may be reappointed for one further term of ve years.
Restrictions on 12.
During the period of his or her appointment, the Director- activities of Director- General shall not General.
(a) be employed in any other work or business; or (b) hold any other public ofce.
Terms and conditions 13.
The terms and conditions of service of the Director-General of service of shall be determined by the Advisory Board in accordance with the State Director-General.
Corporations Act.
Cap.
446.
Resignation of 14.
(1) The Director-General may resign by a written resignation Director-General addressed to the Advisory Board.
(2) A resignation is effective upon being received by the Advisory Board.
Removal of Director- 15.
(1) The appointment of the Director-General may be General.
terminated only in accordance with this section.
(2) The Advisory Board may terminate a persons appointment as the Director-General if the person (a) is incompetent; Rev.
2010] Public Procurement and Disposal CAP.
412C 15 (b) is unable to perform the functions of his ofce by reason of a mental or physical inrmity; (c) is convicted of an offence under the Penal Code or this Act Cap.
63.
or an offence involving dishonesty; (d) was involved in a corrupt transaction; (e) contravenes section 12; or (f) is adjudged bankrupt.
16.
The Authority may, upon such terms and conditions of service Staff.
as the Authority may determine, employ such staff or hire the services of such consultants, experts or independent investigators as may be necessary for the proper performance of its functions.
17.
The Advisory Board may designate a member of the staff of Acting Director- the Authority to act as the Director-General during the illness or absence General.
of the Director-General or during a vacancy in the ofce.
18.
(1) The nancial year of the Authority shall be the period of Financial twelve months ending on 30th June in each year.
arrangements.
(2) At least three months before the commencement of each nancial year, the Director-General shall cause estimates of the revenue and expenditures of the Authority for that year to be prepared and submitted to the Advisory Board for approval.
(3) The estimates shall make provision for all the estimated expenditures of the Authority for the nancial year and, in particular, shall provide for expenditures for (a) the payment of salaries, allowances and other charges in respect of the staff of the Authority; (b) the payment of pensions, gratuities and other charges in respect of former staff of the Authority; (c) the proper maintenance of buildings and grounds of the Authority; (d) the maintenance, repair and replacement of the equipment and other property of the Authority; and (e) the payment of allowances and expenses of the Advisory Board.
16 CAP.
412C Public Procurement and Disposal [Rev.
2010 (4) The Authority shall make provision for the renewal of depreciating assets and the payment of pensions and other retirement benets by the establishment of sinking funds and for contributions to such reserve and stabilization funds as may be required.
(5) The funds of the Authority shall consist of (a) money appropriated by Parliament for the purpose of running the Authority; (b) loans or grants received by the Authority for its activities; (c) revenue or fees collected for services rendered by the Authority; and (d) capacity building levy of such amount of the contract price as may be prescribed.
Audit.
19.
The Authority shall be audited in accordance with the Public No.
12 of 2003.
Audit Act, 2003.
Quarterly and annual 20.
(1) For each nancial year, the Director-General shall cause reports.
four quarterly reports and one annual report to be prepared.
(2) The Director-General shall submit each report to the Advisory Board and to the Minister (a) in the case of a quarterly report, within one month after the end of the quarter to which the report relates; or (b) in the case of an annual report, within four months after the end of the year to which the report relates.
(3) Each report shall contain, in respect of the period to which it relates (a) a description of the activities of the Authority; (b) a report on the overall functioning of the public procurement system; (c) a list of each procurement for which a procurement procedure was specially permitted under section 92; (d) a report on the extent of positive bias to local participation.
Rev.
2010] Public Procurement and Disposal CAP.
412C 17 (4) In addition to what is required under subsection (3), each annual report shall include the nancial statements of the Authority for the year to which the report relates.
(5) The Minister shall, within thirty days after receiving a report, transmit it to the National Assembly.
BPublic Procurement Oversight Advisory Board 21.
The Public, Procurement Oversight Advisory Board is hereby Establishment established as an unincorporated body.
of Advisory Board.
22.
(1) The Public Procurement Oversight Advisory Board shall Composition of consist of Advisory Board.
9 of 2007, s.
77.
(a) nine members appointed by the Minister and approved by Parliament from persons nominated by the prescribed organizations; (b) the Permanent Secretary to the Treasury, or his represtentative; (c) the Attorney-General or his representative; (d) the Director-General.
(2) The First Schedule shall apply in respect of the members of the Advisory Board.
23.
The functions of the Advisory Board are Functions of (a) to advise the Authority generally on the exercise of its Advisory Board.
powers and the performance of its functions; (b) to approve the estimates of the revenue and expenditures of the Authority; (c) to recommend the appointment or termination of the Director-General in accordance with this Act; (d) to perform such other functions and duties as are provided for under this Act.
24.
(1) The business and affairs of the Advisory Board shall be Procedures of conducted in accordance with the Second Schedule.
Advisory Board.
18 CAP.
412C Public Procurement and Disposal [Rev.
2010 (2) Except as provided in the Second Schedule, the Advisory Board may regulate its own procedure.
(3) Five nominated members of the Advisory Board shall constitute a quorum for the transaction of any business of the Board.
(4) The Advisory Board may invite any person to attend any of its meetings and to participate in its deliberations, but such an invitee shall not have a vote in any decision of the Board.
CPublic Procurement Administrative Review Board Review Board.
25.
(l) The Public Procurement Complaints, Review and Appeal L.N.
51/2001.
Board established under the Exchequer and Audit (Public Procurement) Regulations, 2001 is continued under this Act as the Public Procurement Administrative Review Board.
(2) The composition and membership of the Review Board shall be in accordance with the regulations.
(3) The Authority shall provide administrative services to the Review Board.
part IIIInternal organIsatIon of puBlIC entItIes relatIng to proCurement Threshold matrix 26.
(1) For the purpose of ensuring that its decisions are made in a and segregation of systematic and structured way, a public entity shall establish procedures responsibilities.
to provide for the making of decisions, on behalf of the public entity, relating to procurement.
(2) The procedures required under subsection (1) shall be consistent with this Act and the regulations.
(3) All procurement shall be (a) within the approved budget of the procuring entity and shall be planned by the procuring entity concerned through an annual procurement plan; (b) undertaken by a procuring entity as per the threshold matrix as set out in the regulations; (c) handled by different ofces in respect of procurement initiation, processing and receipt of goods, works and services.
Rev.
2010] Public Procurement and Disposal CAP.
412C 19 (4) A public entity shall establish a tender committee, procurement unit and such other bodies as are required under the regulations for the purpose of making such decisions on behalf of the public entity as are specied in this Act and the regulations.
(5) A tender committee or body established under subsection (4) shall be established in accordance with the regulations and shall (a) consist of not less than ve members; (b) have as its secretary, the procurement professional in charge of the procurement unit.
(6) A procuring entity shall not commence any procurement procedure until it is satised that sufcient funds have been set aside in its budget to meet the obligations of the resulting contract.
(7) A procurement unit established under subsection (4) shall be staffed with procurement professionals whose qualications have been recognised by the Authority.
(8) For the purpose of this section, a procurement professional means a person who (a) has professional qualications in procurement and supply management from a recognised institution; (b) is engaged in a calling or occupation in which recourse to procurement is directly or indirectly involved and has experience in the practise of procurement; and (c) is a member of a recognised institute of purchasing and supply.
(9) The level of qualication and experience required of procurement professionals under subsection (8) shall be as prescribed.
(10) The Authority shall facilitate the establishment of an examination body for procurement professionals and shall ensure support for their professional association.
27.
(1) A public entity shall ensure that this Act, the regulations Responsibility for and any directions of the Authority are complied with respect to each complying with Act, of its procurements.
etc.
(2) The accounting ofcer of a public entity shall be primarily responsible for ensuring that the public entity fulls its obligations under subsection (1).
20 CAP.
412C Public Procurement and Disposal [Rev.
2010 (3) Each employee of a public entity and each member of a board or committee of the public entity shall ensure, within the areas of responsibility of the employee or member, that this Act, the regulations and any directions of the Authority are complied with.
(4) Contractors, suppliers and consultants shall comply with all the provisions of this Act and the regulations.
(5) The accounting ofcer may use the procurement unit and tender committee of another procuring entity which shall carry out the procurement in accordance with this Act and the regulations.
(6) 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 instances as may be prescribed.
Procuring agents.
28.
(1) A procuring entity may appoint a procurement agent, on competitive basis, to carry out such procurement proceedings on its behalf as may be prescribed.
(2) The Authority shall pre-qualify procuring agents to be engaged by a procuring entity pursuant to subsection (1).
(3) A procuring agent shall be registered with the Authority and where the procuring agent is undertaking procurement on behalf of a procurement entity, the procuring agent shall comply with the provisions of this Act and the regulations.
part Ivgeneral proCurement rules Choice of 29.
(1) For each procurement, the procuring entity shall use open procurement tendering under Part V or an alternative procurement procedure under procedure.
Part VI.
(2) A procuring entity may use an alternative procurement procedure only if that procedure is allowed under Part VI.
(3) A procuring entity may use restricted tendering or direct procurement as an alternative procurement procedure only if, before using that procedure, the procuring entity (a) obtains the written approval of its tender committee; and (b) records in writing the reasons for using the alternative procurement procedure.
Rev.
2010] Public Procurement and Disposal CAP.
412C 21 (4) A procuring entity shall use such standard tender documents as may be prescribed.
30.
(1) No procuring entity may structure procurement as two or Procurement not to more procurements for the purpose of avoiding the use of a procurement be split or inated.
procedure.
(2) Any person who contravenes the provisions of this section shall be guilty of an offence.
(3) Standard goods, services and works with known market prices shall be procured at the prevailing real market price.
(4) Public ofcials involved in transactions in which standard goods, services and works are procured at unreasonably inated prices shall, in addition to any other sanctions prescribed in this Act or the regulations, be required to pay the procuring entity for the loss resulting from their actions.
31.
(1) A person is qualied to be awarded a contract for a Qualications procurement only if the person satises the following criteria to be awarded (a) the person has the necessary qualications, capability, contract.
experience, resources, equipment and facilities to provide what is being procured; (b) the person has the legal capacity to enter into a contract for the procurement; (c) the person is not insolvent, in receivership, bankrupt or in the process of being wound up and is not the subject of legal proceedings relating to the foregoing; (d) the procuring entity is not precluded from entering into the contract with the person under section 33; (e) the person is not debarred from participating in procurement proceedings under Part IX.
(2) The procuring entity may require a person to provide evidence or information to establish that the criteria under subsection (1) are satised.
(3) The criteria under subsection (1) and any requirements under subsection (2) shall be set out in the tender documents or the request for proposals or quotations or, if a procedure is used to pre-qualify persons, in the documents used in that procedure.
22 CAP.
412C Public Procurement and Disposal [Rev.
2010 (4) The procuring entity shall determine whether a person is qualied and that determination shall be done using the criteria and requirements set out in the documents or requests described in subsection (3).
(5) The procuring entity may disqualify a person for submitting false, inaccurate or incomplete information about his qualications.
(6) No person shall be excluded from submitting a tender, proposal or quotation in procurement proceedings except under this section and under section 39.
(7) Procuring entities shall use creative approaches, such as design and build in order to enhance efciency of the procurement process and project implementation.
32.
To identify qualied persons a procuring entity may use a Pre-qualication procedures.
pre-qualication procedure or may use the results of a pre-qualication procedure used by another public entity.
Limitation on 33.
(1) Except as expressly allowed under the regulations, a contracts with procuring entity shall not enter into a contract for a procurement with employees, etc.
(a) an employee of the procuring entity or a member of a board or committee of the procuring entity; (b) a Minister, public servant or a member of a board or committee of the Government or any department of the Government or a person appointed to any position by the President or a Minister; or (c) a person, including a corporation, who is related to a person described in paragraph (a) or (b).
(2) Whether a person is related to another person for the purpose of subsection (1)(c) shall be determined in accordance with the regulations.
34.
(1) The procuring entity shall prepare specic requirements Specic relating to the goods, works or services being procured that are clear, requirements.
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 specic requirements shall include all the procuring entitys technical requirements with respect to the goods, works or services being procured.
Rev.
2010] Public Procurement and Disposal CAP.
412C 23 (3) The technical requirements shall, where appropriate (a) relate to performance rather than to design or descriptive characteristics; and (b) be based on national or international standards.
(4) The technical requirements shall not refer to a particular trademark, name, patent, design, type, producer or service provider or to a specic origin unless (a) there is no other sufciently precise or intelligible way of describing the requirements; and (b) the requirements allow equivalents to what is referred to.
35.
A tender, proposal or quotation submitted by a person shall Verication that not include a statement verifying that the person is not debarred from debarred.
participating in procurement proceedings under Part IX and a declaration that the person will not engage in any corrupt practice.
36.
(1) A procuring entity may, at any time, terminate procurement Termination of proceedings without entering into a contract.
procurement proceedings.
(2) The procuring entity shall give prompt notice of a 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.
(3) On the request of a person described in subsection (2), the procuring entity shall give its reasons for terminating the procurement proceedings within fourteen days of the request.
(4) If the procurement proceedings involved tenders and the proceedings are terminated before the tenders are opened, the procuring entity shall return the tenders unopened.
(5) The procuring entity shall not be liable to any person for a termination under this section.
(6) A termination under this section shall not be reviewed by the Review Board or a court.
(7) A public entity that terminates procurement proceedings shall give the Authority a written report on the termination.
24 CAP.
412C Public Procurement and Disposal [Rev.
2010 (8) A report under subsection (7) shall include the reasons for the termination and shall be made in accordance with any directions of the Authority with respect to the contents of the report and when it is due.
Form of 37.
(1) If the procurement procedure used is open or restricted communications.
tendering or a request for proposals, communications between the procuring entity and a person seeking a contract for the procurement shall be in writing.
(2) If the procurement procedure used is direct procurement or a request for quotations, communications between the procuring entity and a person seeking a contract for the procurement shall either be (a) in writing; or (b) referred to and conrmed in writing.
(3) To the extent allowed under written directions of the Authority, electronic communications may be used instead of written communications.
Inappropriate 38.
(1) After the deadline for the submission of tenders, proposals or quotations inuence on evaluations, (a) no person who submitted a tender, proposal or quotation etc.
shall make any unsolicited communications to the procuring entity or any person involved in the procurement proceedings that might reasonably be construed as an attempt to inuence the evaluation and comparison of tenders, proposals or quotations; and (b) no person who is not ofcially involved in the evaluation and comparison of tenders, proposals or quotations shall attempt, in any way, to inuence that evaluation and comparison.
(2) A person who contravenes subsection (1) is guilty of an offence and is liable on conviction (a) if the person is an individual, to a ne not exceeding four million shillings or to imprisonment for a term not exceeding three years or to both; or (b) if the person is a corporation, to a ne not exceeding ten million shillings.
Rev.
2010] Public Procurement and Disposal CAP.
412C 25 39.
(1) Candidates shall participate in procurement proceedings Participation in without discrimination except where participation is limited in procurement.
accordance with this Act and the regulations.
10 of 2010, s.
80.
(2) Subject to subsection (8), the Minister shall, in consideration of economic and social development factors, prescribe preferences and or reservations in public procurement and disposal.
(3) The preferences and reservations referred to in subsection (2) shall (a) be non-discriminatory in respect of the targeted groups; (b) allow competition amongst the eligible; (c) be monitored and evaluated by the Authority.
(4) The preferences and reservations shall apply to (a) candidates such as disadvantaged groups, micro, small and medium enterprises; (b) works, services and goods, or any combination thereof; (c) identied regions; and (d) such other categories as may be prescribed.
(5) A procuring entity shall, when processing procurement, comply with the provisions of this Act and the regulations in respect of preferences and reservations.
(6) To qualify for a specic preference or reservation, a candidate shall provide evidence of eligibility.
(7) The Authority shall maintain an up-to-date register of contractors in works, goods and services, or any combination thereof, in order to be cognizant at all times of the workload and performance record.
(8) In applying the preferences and reservations under this section (a) exclusive preference shall be given to citizens of Kenya where 26 CAP.
412C Public Procurement and Disposal [Rev.
2010 (i) the funding is 100% from the Government of Kenya or a Kenyan body; and (ii) the amounts are below the prescribed threshold.
(b) a prescribed margin of preference shall be given (i) in the evaluation of bids to candidates offering goods manufactured, mined, extracted and grown in Kenya; or (ii) works, goods and services where a preference shall be applied depending on the percentage of shareholding of the locals on a graduating scale as prescribed.
Corrupt 40.
(1) No person, agent or employee shall be involved in any practice.
corrupt practice in any procurement proceeding.
(2) If a person or an employee or agent of a person contravenes subsection (1) the following shall apply (a) the person shall be disqualied from entering into a contract for the procurement; or (b) if a contract has already been entered into with the person, the contract shall be voidable at the option of the procuring entity.
(3) The voiding of a contract by the procuring entity under subsection (2) (b) does not limit any other legal remedy the procuring entity may have.
(4) A person, employee or agent who contravenes subsection (1) shall be guilty of an offence.
Fraudulent 41.
(1) No person shall be involved in a fraudulent practice in practice.
any procurement proceeding.
(2) If a person contravenes subsection (1) the following shall apply (a) the person shall be disqualied from entering into a contract for the procurement; or (b) if a contract has already been entered into with the person, the contract shall be voidable at the option of the procuring entity.
Rev.
2010] Public Procurement and Disposal CAP.
412C 27 (3) The voiding of a contract by the procuring entity under subsection (2) (b) does not limit any other legal remedy the procuring entity may have.
(4) A person who contravenes subsection (1) shall be guilty of an offence.
42.
(1) No person shall collude or attempt to collude with any Collusion.
other person (a) to make any proposed price higher than would otherwise have been the case; (b) to have that other person refrain from submitting a tender, proposal or quotation or withdraw or change a tender, proposal or quotation; or (c) to submit a tender, proposal or quotation with a specied price or with any specied inclusions or exclusions.
(2) If a person contravenes subsection (1) the following shall apply (a) both persons referred to in subsection (1) shall be disqualied from entering into a contract for the procurement; or (b) if a contract has already been entered into with either person referred to in subsection (1), the contract shall be voidable at the option of the procuring entity.
(3) The voiding of a contract by the procuring entity under subsection (2) (b) does not limit any other legal remedy the procuring entity may have.
(4) A person who contravenes subsection (1) shall be guilty of an offence.
43.
(1) An employee or agent of the procuring entity or a member Conicts of interest.
of a board or committee of the procuring entity who has a conict of interest with respect to a procurement (a) shall not take part in the procurement proceedings; and (b) shall not, after a procurement contract has been entered into, take part in any decision relating to the procurement or contract.
28 CAP.
412C Public Procurement and Disposal [Rev.
2010 (2) An employee, agent or member described in subsection (1) who refrains from doing anything prohibited under that subsection that, but for that subsection, would have been within his duties shall disclose the conict of interest to the procuring entity.
(3) If a person contravenes subsection (1) with respect to a conict of interest described in subsection (5) (a) and the contract is awarded to the person or his relative or to another person in whom one of them had a direct or indirect pecuniary interest, the contract shall be voidable at the option of the procuring entity.
(4) The voiding of a contract by the procuring entity under subsection (3) does not limit any other legal remedy the procuring entity may have.
(5) For the purpose of this section, a person has a conict of interest with respect to a procurement if the person or a relative of the person (a) seeks, or has a direct or indirect pecuniary interest in another person who seeks, a contract for the procurement; or (b) owns or has a right in any property or has a direct or indirect pecuniary interest that results in the private interest of the person conicting with his duties with respect to the procurement.
(6) In this section, relative means (a) a spouse, child, parent, brother or sister; (b) a child, parent, brother or sister of a spouse; or (c) any other prescribed relative.
(7) For the purpose of subsection (5), the following are persons seeking a contract for a procurement (a) a person submitting a tender, proposal or quotation; or (b) if direct procurement is being used, a person with whom the procuring entity is negotiating.
(8) Any person who contravenes the provisions of this section shall be guilty of an offence.
Rev.
2010] Public Procurement and Disposal CAP.
412C 29 44.
(1) During or after procurement proceedings, no procuring Condentiality.
entity and no employee or agent of the procuring entity or member of a board or committee of the procuring entity shall disclose the following (a) information relating to a procurement whose disclosure would impede law enforcement or whose disclosure would not be in the public interest; (b) information relating to a procurement whose disclosure would prejudice legitimate commercial interests or inhibit fair competition; (c) information relating to the evaluation, comparison or clarication of tenders, proposals or quotations; or (d) the contents of tenders, proposals or quotations.
(2) This section does not prevent the disclosure of information if any of the following apply (a) the disclosure is to an employee or agent of the procuring entity or a member of a board or committee of the procuring entity involved in the procurement proceedings; (b) the disclosure is for the purpose of law enforcement; (c) the disclosure is for the purpose of a review under Part VII or an investigation under Part VIII or as required under section 105; (d) the disclosure is pursuant to a court order; or (e) the disclosure is allowed under the regulations.
(3) Notwithstanding the provisions of subsection (2), the disclosure to an applicant seeking a review under Part VII shall constitute only the summary referred to in section 45 (2) (e).
(4) Any person who contravenes the provisions of this section shall be guilty of an offence.
45.
(1) A procuring entity shall keep records for each procurement Procurement records.
for at least six years after the resulting contract was entered into or, if no contract resulted, after the procurement proceedings were terminated.
(2) The records for a procurement must include 30 CAP.
412C Public Procurement and Disposal [Rev.
2010 (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 submis- sion; and (ii) the price, or basis of determining the price, and a sum- mary of the other principal terms and conditions of the tender, proposal or quotation; (e) a summary of the evaluation and comparison of the tenders, proposals or quotations, including the evaluation criteria used; (f) if the procurement proceedings were terminated without resulting in a contract, an explanation of why they were terminated; (g) a copy of every document that this Act requires the procuring entity to prepare; and (h) such other information or documents as are prescribed.
(3) After a contract has been awarded 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, if direct procurement was used, a person with whom the procuring entity was negotiating.
(4) The procuring entity may charge a fee for making the records available but the fee shall not exceed the costs of making the records available.
(5) No disclosure shall be made under subsection (3) that would be contrary to section 44 (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 44 (l).
Rev.
2010] Public Procurement and Disposal CAP.
412C 31 (6) A procuring entity shall maintain a proper ling system with clear links between procurement and expenditure les.
46.
(1) The Authority shall publish notices of the contracts Publication of awarded by procuring entities together with such other information as procurement may be prescribed.
contracts.
(2) The Authority shall issue directions governing the publication of notices under this section, including directions specifying what must be included in a notice and how it must be published.
47.
An amendment to a contract resulting from the use of open Amendments to tendering or an alternative procurement procedure under Part VI is contracts.
effective only if (a) the amendment has been approved in writing by the tender committee of the procuring entity; and (b) any contract variations are based on the prescribed price or quantity variations for goods, works and services.
48.
The following shall apply with respect to overdue amounts Interest on overdue owed by a procuring entity under a contract for a procurement amounts.
(a) unless the contract provides otherwise, the procuring entity shall pay interest on the overdue amounts; and (b) the interest to be paid under paragraph (a) shall be in accordance with prevailing commercial bank rates.
49.
(1) The following shall apply in relation to a contract for a Inspections and procurement audits relating to (a) the Director-General, or anyone authorized by the Director- contracts.
General, may inspect, at any reasonable time, the records and accounts of the procuring entity and contractor relating to the contract and the procuring entity and contractor shall co-operate with and assist whoever does such an inspection; and (b) the Controller and Auditor-General, or an auditor authorized by the Controller and Auditor-General, may audit the accounts of the procuring entity and contractor relating to the contract and the procuring entity and contractor shall co-operate with and assist whoever does such an audit.
32 CAP.
412C Public Procurement and Disposal [Rev.
2010 (2) The costs of an audit under subsection (1) (b) shall be borne by the Authority if the audit was conducted at the request of the Director- General.
part vopen tenderIng Part sets out 50.
This Part sets out the requirements for open tendering.
requirements.
Invitation to tender.
51.
The procuring entity shall prepare an invitation to tender that sets out the following (a) the name and address of the procuring entity; (b) the tender number assigned to the procurement proceedings by the procuring entity; (c) a brief description of the goods, works or services being procured including the time limit for delivery or completion; (d) an explanation of how to obtain the tender documents, including the amount of any fee; (e) an explanation of where and when tenders must be submitted and where and when the tenders will be opened; and (f) a statement that those submitting tenders or their representatives may attend the opening of tenders.
Tender documents.
52.
(1) The procuring entity shall prepare tender documents in accordance with this section and the regulations.
(2) The tender documents shall contain enough information to allow fair competition among those who may wish to submit tenders.
(3) The tender documents shall set out the following (a) the specic requirements prepared under section 34 relating to the goods, works or services being procured and the time limit for delivery or completion; (b) if works are being procured, relevant drawings and bills of quantities; (c) the general and specic conditions to which the contract will be subject, including any requirement that performance security be provided before the contract is entered into; Rev.
2010] Public Procurement and Disposal CAP.
412C 33 (d) the tender number assigned to the procurement proceedings by the procuring entity; (e) instructions for the preparation and submission of tenders including (i) the forms for tenders; (ii) the number of copies to be submitted with the original tender; (iii) any requirement that tender security be provided and the form and amount of any such security; and (iv) any requirement that evidence provided of the qualica- tions of the person submitting the tender; (f) an explanation of where and when tenders must be submitted, a statement that the tenders will be opened immediately after the deadline for submitting them and an explanation of where the tenders will be opened; (g)a statement that those submitting tenders or their representatives may attend the opening of tenders; (h) a statement of the period during which tenders must remain valid; (i) the procedures and criteria to be used to evaluate and compare the tenders; (j)a statement that the procuring entity may, at any time, terminate the procurement proceedings without entering into a contract; and (k) anything else required, under this Act or the regulations, to be set out in the tender documents.
53.
(1) A procuring entity may amend the tender documents at any time before the deadline for submitting tenders by issuing an Modications to tender addendum.
documents.
(2) An amendment may be made on the procuring entitys own initiative or in response to an inquiry.
(3) The procuring entity shall promptly provide a copy of the addendum to each person to whom the procuring entity provided copies of the tender documents.
34 CAP.
412C Public Procurement and Disposal [Rev.
2010 (4) The addendum shall be deemed to be part of the tender documents.
Advertisement.
54.
(1) The 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.
(2) If the estimated value of the goods, works or services being procured is equal to, or more than the prescribed threshold for national advertising, the procuring entity shall advertise, at least twice in a newspaper of general nationwide circulation which has been regularly published for at least two years before the date of issue of the advertisement, and on its website in instances where the procuring entity has a website, and the advertisement shall also be posted at any conspicuous place reserved for this purpose in the premises of the procuring entity as certied by the head of the procurement unit.
Time for preparing 55.
(1) The time allowed for the preparation of tenders must not tenders.
be less than the minimum period of time prescribed for the purpose of this subsection.
(2) For the purpose of this section, the time allowed for the preparation of tenders is the period of time between whatever steps the procuring entity takes to bring the invitation to tender to the attention of those who may wish to submit tenders and the deadline for submitting tenders.
(3) If the tender documents are amended under section 53 when the time remaining before the deadline for submitting tenders is less than one third of the time allowed for the preparation of tenders, the procuring entity shall extend the deadline as necessary to allow the amendment of the tender documents to be taken into account in the preparation or amendment of tenders.
Provision of tender 56.
(1) The procuring entity shall provide copies of the tender documents.
documents expeditiously and in accordance with the invitation to tender.
(2) The procuring entity may charge such fees as may be prescribed for copies of the tender documents.
Tender security.
57.
(1) A procuring entity may require that tender security be provided with tenders.
(2) The procuring entity may determine the form and amount of the tender security, subject to such requirements or limits as may be prescribed.
Rev.
2010] Public Procurement and Disposal CAP.
412C 35 (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 must remain valid; (b) rejects a correction of an arithmetic error under section 63; or (c) refuses to enter into a written contract as required under section 68 or fails to furnish any required performance security.
(4) The procuring entity shall 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; or (c) a contract for the procurement is entered into.
58.
(1) A tender must be in writing, it must be signed and it must Submission be sealed in an envelope.
and receipt of tenders.
(2) A tender and the envelope it is sealed in must bear the tender number assigned to the procurement proceedings by the procuring entity.
(3) A tender must be submitted before the deadline for submitting tenders and any tender received after that deadline shall be returned unopened.
(4) The procuring entity shall ensure that the place where tenders must be submitted is open and accessible and shall provide, in that place, a tender box that complies with the prescribed requirements.
(5) Each tender that is delivered shall be placed unopened in the tender box (a) if the tender is delivered by post, by the staff of the procuring entity immediately upon receipt; or 36 CAP.
412C Public Procurement and Disposal [Rev.
2010 (b) if the tender is delivered otherwise than by post, by the person delivering the tender.
(6) If a tender that is delivered by post is inadvertently opened, the fact of that opening shall be recorded on the envelope by the person who opened the tender and then the tender shall be placed in the tender box.
(7) If a tender or part of a tender is too large to be placed in the tender box it shall be received in the manner set out in the tender documents or the invitation to tender or, if no such manner is set out, in the manner determined by the procuring entity.
Changes to tenders.
59.
(1) Before the deadline for submitting tenders, a person who submitted a tender may change or withdraw it in accordance with the following (a) the change or withdrawal must be in writing; and (b) the change or withdrawal must be submitted before the deadline for submitting tenders and in accordance with the procedures for submitting tenders.
(2) After the deadline for submitting tenders, a person who submitted a tender shall not change, or offer to change, the substance of the tender.
(3) The procuring entity shall not attempt to have the substance of a tender changed.
Opening of 60.
(1) The accounting ofcer shall appoint a tender opening tenders.
committee specically for the procurement in accordance with the following requirements and such other requirements as may be prescribed (a) the committee shall have at least three members; and (b) at least one of the members shall not be directly involved in the processing or evaluation of the tenders.
(2) Immediately after the deadline for submitting tenders, the tender opening committee shall open all tenders received before that deadline.
(3) Those submitting tenders or their representatives may attend the opening of tenders.
Rev.
2010] Public Procurement and Disposal CAP.
412C 37 (4) The tender opening committee shall assign an identication number to each tender.
(5) As each tender is opened, the following shall be read out loud and recorded in a document to be called the tender opening register (a) the name of the person submitting the tender; (b) the total price of the tender including any modications or discounts received before the deadline for submitting tenders except as may be prescribed; and (c) if applicable, what has been given as tender security.
(6) The procuring entity shall, on request, provide a copy of the tender opening register to a person submitting a tender.
(7) Each member of the tender opening committee shall (a) sign each tender on one or more pages as determined by the tender opening committee; and (b) initial, in each tender, against the quotation of the price and any modications or discounts.
(8) The tender opening committee shall prepare tender opening minutes which shall set out (a) a record of the procedure followed in opening the tenders; and (b) the particulars of those persons submitting tenders, or their representatives, who attended the opening of the tenders.
(9) Each member of the tender opening committee shall sign the tender opening minutes.
61.
(1) Before the expiry of the period during which tenders must Extension of tender remain valid the procuring entity may extend that period.
validity period.
(2) The procuring entity shall give notice of an extension under subsection (1) to each person who submitted a tender.
(3) An extension under subsection (1) is subject to such restrictions and requirements as may be prescribed.
(4) For greater certainty, tender security shall be forfeited if a tender is withdrawn during an extension under subsection (1).
38 CAP.
412C Public Procurement and Disposal [Rev.
2010 62.
(1) The procuring entity may request a clarication of a tender Clarications.
to assist in the evaluation and comparison of tenders.
(2) A clarication may not change the substance of the tender.
Corrections of 63.
(1) The procuring entity may correct an arithmetic error in arithmetic errors.
a tender.
(2) The procuring entity shall give prompt notice of the correction of an error to the person who submitted the tender.
(3) If the person who submitted the tender rejects the correction, the tender shall be rejected and the persons tender security shall be forfeited.
Responsiveness of 64.
(1) A tender is responsive if it conforms to all the mandatory tenders.
requirements in the tender documents.
(2) The following do not affect whether a tender is responsive (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 quantied to the extent possible; and (b) be taken into account in the evaluation and comparison of tenders.
65.
If the procuring entity determines that none of the submitted Notication if no tenders is responsive, the procuring entity shall notify each person who responsive tenders.
submitted a tender.
Evaluation of 66.
(1) The procuring entity shall evaluate and compare the tenders.
responsive tenders other than tenders rejected under section 63 (3).
(2) The evaluation and comparison shall be done using the procedures and criteria set out in the tender documents and no other criteria shall be used.
(3) The following requirements shall apply with respect to the procedures and criteria referred to in subsection (2) Rev.
2010] Public Procurement and Disposal CAP.
412C 39 (a) the criteria must, to the extent possible, be objective and quantiable; and (b) each criterion must be expressed so that it is applied, in accordance with the procedures, taking into consideration price, quality and service for the purpose of evaluation.
(4) The successful tender shall be the tender with the lowest evaluated price.
(5) The procuring entity shall prepare an evaluation report containing a summary of the evaluation and comparison of tenders.
(6) The evaluation shall be carried out within such period as may be prescribed.
67.
(1) Before the expiry of the period during which tenders must Notication of award remain valid, the procuring entity shall notify the person submitting the of contract.
successful tender that his tender has been accepted.
(2) At the same time as the person submitting the successful tender is notied, the procuring entity shall notify all other persons submitting tenders that their tenders were not successful.
(3) For greater certainty, a notication under subsection (2) does not reduce the validity period for a tender or tender security.
68.
(1) The person submitting the successful tender and the Creation of contract.
procuring entity shall enter into a written contract based on the tender documents, the successful tender, any clarications under section 62 and any corrections under section 63.
(2) The written contract shall be entered into within the period specied in the notication under section 67(1) but not until at least fourteen days have elapsed following the giving of that notication.
(3) No contract is formed between the person submitting the successful tender and the procuring entity until the written contract is entered into.
69.
(1) If the person submitting the successful tender refuses to Refusal to sign enter into a written contract as required under section 68, the procuring contract.
entity shall notify, under section 67 (1), the person who submitted the tender that, according to the evaluation under section 66, would have been successful had the successful tender not been submitted.
40 CAP.
412C Public Procurement and Disposal [Rev.
2010 (2) Section 67(2), section 68 and this section apply, with necessary modications, with respect to the tender of the person notied under subsection (1).
(3) This section does not apply if the period during which tenders must remain valid has already expired.
Changes to contract 70.
The procuring entity shall not request or require, as a condition responsibilities.
of awarding a contract that a person who submitted a tender undertake responsibilities not set out in the tender documents.
International 71.
If there will not be effective competition for a procurement tendering.
unless foreign persons participate, the following shall apply (a) the invitation to tender and the tender documents must be in English; (b) if the procuring entity is required to advertise the invitation to tender under section 54(2), the procuring entity shall also advertise the invitation to tender in one or more English- language newspapers or other publications that, together, have sufcient circulation outside Kenya to allow effective competition for the procurement; (c) the period of time between the advertisement under paragraph(b) and the deadline for submitting tenders must be not less than the minimum period of time prescribed for the purpose of this paragraph; (d) the technical requirements must, to the extent compatible with requirements under Kenyan law, be based on international standards or standards widely used in international trade; (e) a person submitting a tender may, in quoting prices or providing security, use a currency that is widely used in international trade and that the tender documents specically allow to be used; and (f) any general and specic conditions to which the contract will be subject must be of a kind generally used in international tendering.
part vIalternatIve proCurement proCedures Part sets out 72.
This Part sets out the requirements for the procurement requirements.
procedures that are alternatives to open tendering.
Rev.
2010] Public Procurement and Disposal CAP.
412C 41 ARestricted tendering 73.
(1) A procuring entity may engage in procurement by means When restricted of restricted tendering in such manner as may be prescribed.
tendering may be used.
(2) A procuring entity may use restricted tendering if the following conditions are satised (a) competition for contract, because of the complex or specialised nature of the goods, works or services is limited to prequalied contractors; (b) the time and cost required to examine and evaluate a large number of tenders would be disproportionate to the value of the goods, works or services to be procured; and (c) there is only a few known suppliers of the goods, works or services as may be prescribed in the regulations.
BDirect procurement 74.
(1) A procuring entity may use direct procurement as allowed When direct under subsection (2) or (3) as long as the purpose is not to avoid procurement may be competition.
used.
(2) A procuring entity may use direct procurement if the following are satised (a) there is only one person who can supply the goods, works or services being procured; and (b) there is no reasonable alternative or substitute for the goods, works or services.
(3) A procuring entity may use direct procurement if the following are satised (a) there is an urgent need for the goods, works or services being procured; (b) because of the urgency the other available methods of procurement are impractical; and (c) the circumstances that gave rise to the urgency were not foreseeable and were not the result of dilatory conduct on the part of the procuring entity.
42 CAP.
412C Public Procurement and Disposal [Rev.
2010 Procedure.
75.
The following shall apply with respect to direct procurement (a) the procuring entity may negotiate with a person for the supply of the goods, works or services being procured; (b) the procuring entity shall not use direct procurement in a discriminatory manner; and (c) the resulting contract must be in writing and signed by both parties.
CRequest for proposals When request for 76.
(1) A procuring entity may use a request for proposals for a proposals may be procurement if 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 for a procurement if the procuring entity would be allowed to use another alternative procurement procedure for that procurement under section 73, 74, 88 or 90.
Procedure.
77.
Sections 78 to 86 set out the procedure for a procurement using a request for proposals.
Notice inviting 78.
(1) The procuring entity shall prepare a notice inviting expressions of interested persons to submit expressions of interest.
interest.
(2) The notice inviting expressions of interest shall set out the following (a) the name and address of the procuring entity; (b) a brief description of the services being procured and, if applicable, the goods being procured; (c) the qualications necessary to be invited to submit a proposal; and (d) an explanation of where and when expressions of interest must be submitted.
Rev.
2010] Public Procurement and Disposal CAP.
412C 43 (3) The procuring entity shall advertise the notice inviting expressions of interest in at least two daily newspapers of nation-wide circulation.
79.
The procuring entity shall prepare terms of reference that set Terms of reference.
out the following (a) the specic requirements prepared under section 34 relating to the services and, if applicable, the goods being procured and the time limit for delivery or completion; and (b) anything else required under the regulations to be set out in the terms of reference.
80.
After the deadline for submitting expressions of interest the Determination of procuring entity shall examine each expression of interest to determine qualied persons.
if the person submitting it is qualied to be invited to submit a proposal in accordance with the notice inviting expressions of interest.
81.
(1) The procuring entity shall give each person who it Request for proposals determines is qualied to be invited to submit a proposal a request for proposals and a copy of the terms of reference.
to qualied persons.
(2) The request for proposals shall set out the following (a) the name and address of the procuring entity; (b) the general and specic conditions to which the contract will be subject; (c) instructions for the preparation and submission of proposals which shall require that a proposal include a technical proposal and a nancial proposal; (d) an explanation of where and when proposals must 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 nancial proposals; and 44 CAP.
412C Public Procurement and Disposal [Rev.
2010 (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 87, 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.
Evaluation of 82.
(1) The procuring entity shall examine the proposals received proposals.
in accordance with the request for proposals.
(2) For each proposal, the procuring entity shall evaluate the technical proposal to determine if it is responsive and, if it is, the procuring entity shall assign a score to the technical proposal, in accordance with the procedures and criteria set out in the request for proposals.
(3) For each proposal that is determined, under subsection (2), to be responsive, the procuring entity shall evaluate and assign a score to the nancial proposal, in accordance with the procedures and criteria set out in the request for proposals.
(4) If the request for proposals provides for additional methods of evaluation, the procuring entity shall conduct such methods in accordance with the procedures and criteria set out in the request for proposals.
(5) The successful proposal shall be the responsive proposal with the highest score determined by the procuring entity by combining, for each proposal, in accordance with the procedures and criteria set out in the request for proposals, the scores assigned to the technical and nancial proposals under subsections (2) and (3) and the results of any additional methods of evaluation under subsection (4).
83.
(1) The procuring entity shall notify the person who submitted Notication of the successful proposal that his proposal was successful.
successful proposal.
(2) At the same time as the person who submitted the successful proposal is notied, the procuring entity shall notify all other persons who submitted proposals that their proposals were not successful.
Negotiations 84.
(1) The procuring entity may negotiate with the person who with submitter of submitted the successful proposal and may request and permit changes, successful proposal.
subject to section 85 (2).
Rev.
2010] Public Procurement and Disposal CAP.
412C 45 (2) If the negotiations with the person who submitted the successful proposal do not result in a contract the procuring entity may negotiate with the person who submitted the proposal that would have been successful had the successful proposal not been submitted and subsection (1) and this subsection apply, with necessary modications, with respect to those negotiations.
85.
(1) This section shall apply with respect to the contract Contract resulting from a procurement by a request for proposals.
requirements.
(2) 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 (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 must be such that if the proposal, with those variations, was evaluated again under section 83, the proposal would still be the successful proposal.
(3) The contract must be in writing.
(4) The contract must 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.
86.
If there will not be effective competition unless foreign International persons participate, the following shall apply competition.
(a) the notice inviting expressions of interest and the request for proposals must be in English; (b) in addition to the advertisement required under section 54 (2), the procuring entity shall also advertise the notice inviting expressions of interest in one or more English- language newspapers or other publications that, together, have sufcient circulation outside Kenya to allow effective competition for the procurement; (c) the technical requirements must, to the extent compatible with 46 CAP.
412C Public Procurement and Disposal [Rev.
2010 requirements under Kenyan law, be based on international standards or standards widely used in international trade; (d) a person submitting a proposal may, in quoting prices or providing security, use a currency that is widely used in international trade and that the request for proposals specically allows to be used; and (e) any general and specic conditions to which the contract will be subject must be of a kind generally used in international trade.
Restriction on 87.
A person who enters into a contract resulting from a entering into certain procurement by a request for proposals shall not enter into any other related contracts.
contract for the procurement of goods or works that follows from or is related to that original contract.
DRequest for quotations When may be used.
88.
A procuring entity may use a request for quotations for a procurement if (a) the procurement is for goods that are readily available and for which there is an established market; and (b) the estimated value of the goods being procured is less than or equal to the prescribed maximum value for using requests for quotations.
Procedure.
89.
(1) This section sets out the procedure for a procurement using a request for quotations.
(2) The procuring entity shall prepare a request for quotations that sets out the following (a) the name and address of the procuring entity; (b) the specic requirements prepared under section 34 relating to the goods being procured; (c) an explanation of where and when quotations must be submitted; and (d) anything else required under this Act or the regulations to be set out in the request for quotations.
Rev.
2010] Public Procurement and Disposal CAP.
412C 47 (3) The procuring entity shall deal with the request for quotations in accordance with the following (a) the procuring entity shall give the request to such persons as the procuring entity determines; (b) the request must be given to as many persons as necessary to ensure effective competition and must be given to at least three persons, unless that is not possible; and (c) the procuring entity shall give the request to each person early enough so that the person has adequate time to prepare a quotation.
(4) The successful quotation shall be the quotation with the lowest price that meets the requirements set out in the request for quotations.
(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; and (b) the person submitting the successful quotation shall conrm the purchase order in writing.
(6) If there will not be effective competition unless foreign persons participate, the following shall apply (a) the request for quotations must be in English; (b) the technical requirements must, to the extent compatible with requirements under Kenyan law, be based on international standards or standards widely used in international trade; (c) a person submitting a quotation may, in quoting prices or providing security, use a currency that is widely used in international trade and that the request for quotations specically allows to be used; and (d) any general and specic conditions to which the contract will be subject must be of a kind generally used in international trade.
48 CAP.
412C Public Procurement and Disposal [Rev.
2010 EProcedure for low-value procurements When may be used.
90.
(1) A procuring entity may use a low-value procurement procedure if (a) the estimated value of the goods, works or services being procured are less than or equal to the prescribed maximum value for that low-value procurement procedure; and (b) any other prescribed conditions for the use of the low-value procurement procedure are satised.
(2) A regulation prescribing a maximum value for a low-value procurement procedure or prescribing conditions for the use of such a procedure may prescribe different values or conditions for different classes of public entities or different classes of goods, works or services being procured.
Procedure.
91.
(1) The procedure for a low-value procurement shall be as prescribed.
(2) A regulation prescribing a low-value procurement procedure may (a) prescribe different procedures for different classes of public entities or different classes of goods, works or services being procured; or (b) exempt the procedure from the application of a provision of Part IV or vary the application of such a provision to the procedure.
FSpecially permitted procurement procedure Authority may 92.
(1) A procuring entity may use a procurement procedure permit.
specially permitted by the Authority which may include concessioning and design competition.
(2) For the purpose of this section (a) concessioning means a procurement that encourages the mobilization of private sector resources for the purpose of public nancing, construction, operation and maintenance of development projects and may include build-own and operate, build-own-operate and transfer, build-operate and transfer or similar types of procurement procedures; Rev.
2010] Public Procurement and Disposal CAP.
412C 49 (b) design competition means a procurement procedure for obtaining competitive bids for services which are creative in nature and which require that part of the services be carried as part of the bid to facilitate evaluation of the bids and such services include architecture, landscaping, engineering, urban design projects, urban and regional planning and ne arts.
(3) The procedure for specially permitted procurement shall be as prescribed.
(4) In specially permitting a procedure under subsection (1), the Authority may exempt the procedure from the application of a provision of Part IV or vary the application of such a provision.
part vIIadmInIstratIve revIew of proCurement proCeedIngs 93.
(1) Subject to the provisions of this Part, any candidate who Request for a review.
claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity by this Act or the regulations, may seek administrative review as in such manner as may be prescribed.
(2) The following matters shall not be subject to the review under subsection (1) (a) the choice of a procurement procedure pursuant to Part IV; (b) a decision by the procuring entity under section 36 to reject all tenders, proposals or quotations; (c) where a contract is signed in accordance to section 68; and (d) where an appeal is frivolous.
94.
Upon receiving a request for a review under section 93, the Suspension of secretary to the Review Board shall notify the procuring entity of the proceedings, etc.
pending review and the suspension of the procurement proceedings in such manner as may be prescribed.
95.
The Review Board may dismiss a request for a review if the Dismissal of Review Board is of the opinion that the request is frivolous or vexatious frivolous requests, or was made solely for the purpose of delaying the procurement etc.
proceedings or the procurement.
50 CAP.
412C Public Procurement and Disposal [Rev.
2010 Parties to review.
96.
The parties to a review shall be (a) the person who requested the review; (b) the procuring entity; (c) if the procuring entity has notied a person that the persons tender, proposal or quotation was successful, that person; and (d) such other persons as the Review Board may determine.
Completion of 97.
(1) The Review Board shall complete its review within thirty review.
days after receiving the request for the review.
(2) In no case shall any appeal under this Act stay or delay the procurement process beyond the time stipulated in the Act or the regulations.
Powers of Review 98.
Upon completing a review the Review Board may do any one Board.
or more of the following (a) annul anything the procuring entity has done in the procurement proceedings, including annulling the procurement proceedings in their entirety; (b) give directions to the procuring entity with respect to anything to be done or redone in the procurement proceedings; (c) substitute the decision of the Review Board for any decision of the procuring entity in the procurement proceedings; and (d) order the payment of costs as between parties to the review.
Right to review is 99.
The right to request a review under this Part is in addition to additional right.
any other legal remedy a person may have.
Right to judicial 100.
(1) A decision made by the Review Board shall, be nal and review to binding on the parties unless judicial review thereof commences within procurement.
fourteen days from the date of the Review Boards decision.
(2) Any party to the review aggrieved by the decision of the Review Board may appeal to the High Court, and the decision of the High Court shall be nal.
(3) A party to the review which disobeys the decision of the Rev.
2010] Public Procurement and Disposal CAP.
412C 51 Review Board or the High Court shall be in breach of this Act and any action by such party contrary to the decision of the Review Board or the High Court shall be null and void.
(4) If judicial review is not declared by the High Court within thirty days from the date of ling, the decision of the Review Board shall take effect.
part vIIIauthorIty powers to ensure ComplIanCe 101.
A public entity shall provide the Authority with such Information to information relating to procurement as the Director-General may Authority.
require in writing.
102.(1) The Director-General may order an investigation of Investigations.
procurement proceedings for the purpose of determining whether there has been a breach of this Act, the regulations or any directions of the Authority.
(2) An investigation shall be conducted by an investigator appointed for the purpose by the Director-General.
103.(1) For the purpose of carrying out an investigation of Powers of procurement proceedings an investigator has the following powers investigators.
(a) the investigator shall have access to all books, records, returns, reports and other documents of the procuring entity or a person who participated in the procurement proceedings, including electronic documents; (b) the investigator may remove or make copies of any documents the investigator has access to under paragraph (a); and (c) the investigator may require any of the following to provide explanations, information and assistance (i) an employee or ofcial of the procuring entity; or (ii) an employee or ofcial of a person who participated in the procurement proceedings.
(2) In addition to the powers under subsection (1), an investigator shall have such powers as are prescribed.
(3) The powers of an investigator are subject to such conditions and limitations as are prescribed.
52 CAP.
412C Public Procurement and Disposal [Rev.
2010 Report of 104.
After completing his investigation, an investigator shall investigation.
prepare and submit a report thereon to the Director-General.
Order by Director- 105.
(1) If, after considering the report of an investigator, the General.
Director-General is satised 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 (a) direct the procuring entity to take such actions as are necessary to rectify the contravention; (b) cancel the procurement contract, if any; (c) terminate the procurement proceedings; or (d) prepare and submit a summary of the investigators ndings and recommendations to the procuring entity and to the No.
3 of 2003.
Kenya Anti-Corruption Commission established under the Anti-Corruption and Economic Crimes Act 2003.
(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.
Request for a review.
106.
(1) The procuring entity and any other person who was entitled to be given an opportunity to make representations under section 105 (2) may request the Review Board to review the order of the Director-General under section 109.
(2) A request for a review may only be made within twenty-one days after the order was made.
fee.
(3) A request for a review shall be accompanied by the prescribed Dismissal of 107.
The Review Board may dismiss a request for a review if frivolous requests, the Review Board is of the opinion that the request is frivolous or etc.
vexatious.
Convening of review.
108.
The Review Board shall meet to conduct a review within twenty-one days after receiving the request for the review.
Rev.
2010] Public Procurement and Disposal CAP.
412C 53 109.
The parties to a review are Parties to review.
(a) the person who requested the review; (b) the procuring entity; and (c) such other persons as the Review Board may determine.
110.
The Review Board shall complete its review within thirty Completion of days after receiving the request for the review.
review.
111.
Upon completing a review the Review Board may do any Powers of Review or both of the following Board.
(a) conrm, vary or overturn the Director-Generals order; and (b) order the payment of costs as between parties to the review.
112.
A party to the review may appeal against the decision of Appeals.
the Review Board to the High Court within fourteen days after the decision is made.
113.
The right to request a review under section 106 is in addition Right to review is to any other legal remedy a person may have.
additional right.
114.
(1) No investigation shall be commenced or continued under No investigation if this Part, and no order shall be made under this Part, in relation to an issue before Review issue that the Review Board is reviewing or has reviewed under Part Board.
VII.
(2) Subsection (1) ceases to apply if, after the Review Board has completed its review, information comes to the attention of the Director-General that was not brought before the Review Board in the course of its review.
part IXdeBarment from partICIpatIng In proCurement proCeedIngs 115.
(1) The Director-General, with the approval of the Advisory Debarment.
Board, may debar a person from participating in procurement 10 of 2010, s.
81.
proceedings on the ground that the person (a) has committed an offence under this Act; 54 CAP.
412C Public Procurement and Disposal [Rev.
2010 (b) has committed an offence relating to procurement under any Act; (c) has breached a contract for a procurement by a public entity; (d) has, in procurement proceedings, given false information about his qualications; or (e) has refused to enter into a written contract as required under section 68.
(2) The Director-General, with the approval of the Advisory Board, may also debar a person from participating in procurement proceedings on a prescribed ground.
(2A) Debarment under this section may be imposed by the Director-General on the recommendation of a law- enforcement agency with an investigative mandate.
(3) A debarment under this section shall be for a period of time of not less than ve years, as may be specied by the Director-General.
Opportunity to make 116.
Before debarring a person under section 115, the Director- representations.
General shall give that person an opportunity to make representations to the Director-General.
Request for a review.
117.
(1) A person who is debarred under section 115 may request the Review Board to review the debarment.
(2) A request for a review may only be made within twenty-one days after the person was debarred.
fee.
(3) A request for a review shall be accompanied by the prescribed Dismissal of 118.
The Review Board may dismiss a request for a review if frivolous requests, the Review Board is of the opinion that the request is frivolous or etc.
vexatious.
Convening of review.
119.
The Review Board shall meet to conduct a review within twenty-one days after receiving the request for the review.
Parties to review.
120.
The parties to a review are (a) the person who was debarred; and (b) the Director-General.
Rev.
2010] Public Procurement and Disposal CAP.
412C 55 121.
The Review Board shall complete its review within thirty Completion of days after receiving the request for the review.
review.
122.
Upon completing a review the Review Board may do any Powers of Review or both of the following Board.
(a) conrm, vary or overturn the Director-Generals debarment of the person; and (b) order the payment of costs as between parties to the review.
123.
A party to the review may appeal from the decision of the Appeals.
Review Board to the High Court within fourteen days after the decision is made.
124.
The right to request a review under section 117 is in addition Right to review is to any other legal remedy a person may have.
additional right.
125.
The Authority shall maintain and make available to public List of debarred entities a list of persons debarred from participating in procurement persons.
proceedings under this Part.
part XdIsposal of stores and equIpment 126.
This Part applies with respect to the disposal of stores Application of Part.
and equipment of a public entity that are unserviceable, obsolete or surplus.
127.
(1) A public entity shall ensure that this Act, the regulations Responsibility for and any directions of the Authority are complied with in respect of each complying with Act, of its disposals to which this Part applies.
etc.
(2) The accounting ofcer of a public entity shall be primarily responsible for ensuring that the public entity fulls its obligations under subsection (1).
(3) Each employee of a public entity and each member of a board or committee of the public entity shall ensure, within the areas of responsibility of the employee or member, that this Act, the regulations and any directions of the Authority are complied with.
128.
(1) A public entity shall establish a disposal committee in Disposal committee.
accordance with the regulations for the purpose of recommending the best method of disposing of unserviceable, obsolete or surplus stores or equipment.
56 CAP.
412C Public Procurement and Disposal [Rev.
2010 (2) The disposal committee shall meet within the prescribed period to report on the items and subject to a technical report, recommend the best method of disposal.
Disposal procedure.
129.
(1) The employee in charge of unserviceable, obsolete or surplus stores or equipment shall bring the matter to the attention of the disposal committee.
(2) An employee shall comply with subsection (1) within a reasonable time after the stores or equipment become unserviceable, obsolete or surplus.
(3) The disposal committee shall recommend to the accounting ofcer a method of disposing of the stores and equipment which may include any of the following (a) transfer to another public entity or part of a public entity, with or without nancial adjustment; (b) sale by public tender; (c) sale by public auction; or (d) destruction, dumping or burying; (e) trade-in.
(4) Within the prescribed time period after receiving the recommendations of the disposal committee the accounting ofcer shall give the committee a written notice as to whether the accounting ofcer accepts or rejects the recommendations of the committee.
(5) If the accounting ofcer accepts the recommendations of the disposal committee, the stores and equipment shall be disposed of in accordance with those recommendations.
(6) If the accounting ofcer rejects the recommendations of the disposal committee he shall, within the time period referred to in subsection (4) (a) include,with the notice given to the committee under subsection (4), written reasons for rejecting the recommendations of the committee; (b) give the Authority a copy of the notice under subsection (4) and the written reasons under paragraph (a); and Rev.
2010] Public Procurement and Disposal CAP.
412C 57 (c) refer the matter back to the committee for further consideration.
130.
The Authority may issue written directions to public entities Directions.
with respect to the disposal of unserviceable, obsolete or surplus stores and equipment.
131.
A public entity shall not dispose of unserviceable, obsolete Restriction or surplus stores and equipment to an employee of the public entity or a on disposal to member of a board or committee of the public entity except as expressly employees, etc.
allowed under the regulations.
132.
Part VIII applies, with necessary modications, with respect Application of Part to disposals of unserviceable, obsolete or surplus stores and equipment VIII to disposals.
in the same manner as that Part applies with respect to procurements.
part XImIsCellaneous 133.
(1) For the avoidance of doubt, defence and national security Certain procurements organs shall comply with this Act subject to sub-section (2) and (3).
and disposals by armed forces, police, (2) The defence and national security organs shall manage their etc.
procurement and disposal on the basis of a dual list, covering items subject to open and restricted procurement and disposal methods respectively.
(3) The defence and national security organs shall agree annually with the Authority on the category of restricted items to be included in the restricted list and on restricted procurement or disposal methods to be applied to each category of items on the restricted list.
(4) The restricted list of items shall be subjected to classied audit by the Controller and Auditor-General or his appointee.
(5) The defence and national security organs to which this section applies are the following (a) the Armed Forces; (b) the Kenya Police Force; (c) the National Security Intelligence Service; (d) the Kenya Prisons Service; (e) the Administration Police; 58 CAP.
412C Public Procurement and Disposal [Rev.
2010 (f) the Kenya Wildlife Service; and (g) such other institution as may be prescribed.
Consultation 134.
(1) The Director-General shall convene meetings at least meetings.
annually for the purpose of consulting with persons in the public and private sectors who have an interest in the proper functioning of the public procurement system.
(2) The Permanent Secretary of the ministry responsible for nance, or a member of the staff of the ministry selected by the Permanent Secretary, shall chair each meeting convened under this section.
(3) The Director-General, or a member of the staff of the Authority selected by the Director-General, shall act as the secretary to each meeting convened under this section.
(4) The procedure for conducting a consultative meeting referred to in subsection (1) shall be as prescribed.
Offence-obstruction, 135.
(1) No person shall etc.
(a) obstruct or hinder a person carrying out a duty or function under this Act or exercising a power under this Act; (b) knowingly lie to or mislead a person carrying out a duty or function under this Act or exercising a power under this Act; (c) delay without justiable cause the opening or evaluation of bids or the awarding of contract beyond the prescribed period; (d) unduly inuence or exert pressure on any member of a tender committee or on any employee or agent of a procuring entity to take a particular action which favours or tends to favour a particular bidder; or (e) open any sealed bid, including such bids as may be submitted through the electronic system and any document required to be sealed, or divulge their contents prior to the appointed time for the public opening of the bid or documents.
(2) Any person who contravenes the provisions of subsection (1) shall be guilty of an offence.
Rev.
2010] Public Procurement and Disposal CAP.
412C 59 136.
A person who contravenes an order of the Review Board Offence under Part VII or an order of the Director-General or the Review Board contravention of under Part VIII is guilty of an offence.
orders.
137.
(1) A person convicted of an offence under this Act for which General Penalty.
no penalty is provided shall be liable (a) if the person is an individual, to a ne not exceeding four million shillings or to imprisonment for a term not exceeding ten years or to both; (b) if the person is a body corporate, to a ne not exceeding ten million shillings.
(2) In addition to the penalty under sub section (1), the public ofcer involved shall suffer disqualication from public ofce while the private individual shall be debarred.
138.
No person shall, in his personal capacity, be liable in civil or Protection from criminal proceedings in respect of any act or omissions done in good personal liability.
faith in the performance of his duties under this Act.
139.
All procurement and disposal shall be carried out in Ethics applicable.
accordance with the codes of ethics that may from time to time be specied by the Authority.
140.
The Minister shall make regulations generally for the better Regulations.
carrying out of the provisions of this Act and, without limiting the generality of the foregoing, may make regulations (a) governing how decisions relating to procurement are to be made on behalf of public entities, including requiring the creation of specied committees and the assignment of responsibilities and functions within a public entity; (b) governing pre-qualication procedures; (c) providing for and governing the use of electronic communications and documents in relation to procurement; (d) governing the procedures to be followed in reviews by the Review Board, including the panels of the Review Board to conduct reviews; (e) governing how decisions relating to disposals of stores and equipment that are unserviceable, obsolete or surplus are to be made on behalf of public entities, including requiring 60 CAP.
412C Public Procurement and Disposal [Rev.
2010 the creation of specied committees and the assignment of responsibilities and functions within a public entity; (f) prescribing anything that this Act requires or allows to be prescribed.
Availability of Act, 141.
The Authority shall ensure that this Act, the regulations and etc.
any directions issued under this Act are accessible to the public.
Transitional 142.
The provisions of the Third Schedule shall apply.
provisions.
Amendment of Cap.
5A.
143.
The Exchequer and Audit Act is amended by deleting section 412.
Other consequential 144.
The Acts identied in the Fourth Schedule are amended in amendments.
the manner set out in that Schedule.
FIRST SCHEDULE s.
22 PROVISIONS RELATING TO MEMBERS OF THE ADVISORY BOARD Appointment of 1.
The nomination and appointment of the members of the Advisory nominated members.
Board under section 22 (1) (a) shall be in accordance with the prescribed procedures and requirements.
Term of members.
2.
(1) The term of ofce of each nominated member of the Advisory Board shall be three years.
(2) A person may not serve more than two terms as a nominated member of the Advisory Board.
Resignation.
3.
(1) A nominated member of the Advisory Board may resign by a written resignation addressed to the Minister.
(2) A resignation is effective upon being received by the Minister or by a person authorized by the Minister to receive it.
Termination of 4.
The Minister, on the recommendation of the Advisory Board, may appointment.
terminate a persons appointment as a member of the Advisory Board only if the person (a) is unable to perform the functions of his ofce by reason of a mental or physical inrmity; (b) is adjudged bankrupt; Cap.
63.
(c) is convicted of an offence under the Penal Code or this Act or an offence involving dishonesty; or Rev.
2010] Public Procurement and Disposal CAP.
412C 61 (d) is absent from three consecutive meetings of the Advisory Board without reasonable excuse.
5.
(1) A member of the Advisory Board who has a direct or indirect Disclosure of personal interest in a matter being considered or to be considered by the personal interest.
Advisory Board shall, as soon as reasonably practicable after the relevant facts concerning the matter have come to his knowledge, disclose the nature of his interest to the Advisory Board.
(2) A disclosure of interest in a matter shall be recorded in the minutes of the meeting of the Advisory Board and the member shall not be present while that matter is being dealt with by the Advisory Board and shall not take part in any deliberations or vote relating to the matter.
6.
The Authority shall pay the members of the Advisory Board such Allowances.
allowances and expenses as are determined by the Minister for nance.
SECOND SCHEDULE s.
24 PROVISIONS RELATING TO THE CONDUCT OF BUSINESS AND AFFAIRS OF THE ADVISORY BOARD 1.
(1) The Advisory Board shall have at least four meetings in every Meetings.
nancial year and not more than four months shall elapse between one meeting and the next meeting.
(2) Meetings shall be convened by the Chairman, or in his absence by the Vice-chairman.
(3) Unless three quarters of the members otherwise agree, at least fourteen days notice of a meeting shall be given to every member.
(4) A meeting shall be presided over by the Chairman, or in his absence by the Vice-chairman or in both their absences, by a person elected by the Advisory Board at the meeting for that purpose.
2.
A decision of the Advisory Board shall be by a majority of the members Voting.
present and voting and, in the case of an equality of votes, the person presiding at the meeting shall have a second or casting vote.
3.
(1) The Advisory Board shall elect one of its nominated members to Chairman and Vice- be the Chairman of the Advisory Board and another of its nominated members chairman.
to be its Vice-chairman.
(2) Subject to an earlier resignation or termination, the Chairman and Vice-chairman shall each hold ofce until his current term as a member of the Advisory Board expires.
4.
The Director-General shall be the secretary of the Advisory Board.
Secretary.
5.
Minutes of all meetings shall be kept and entered in books kept for Minutes.
that purpose.
62 CAP.
412C Public Procurement and Disposal [Rev.
2010 THIRD SCHEDULE s.
142 TRANSITIONAL PROVISIONS Interim Director- 1.
(1) The person who, immediately before this Act comes into operation, General.
was the Director of the Public Procurement Directorate shall become the interim Director-General of the Authority upon the establishment of the Authority.
(2) The interim Director-General shall cease to be the interim Director- General upon the appointment of a Director-General under section 10.
(3) For greater certainty, the interim Director-General shall have and may exercise and perform all the powers and functions of the Director-General until the Director-General is appointed, including being a member of the Advisory Board.
(4) For greater certainty, service as the interim Director-General shall not constitute service for a term for the purpose of section 11 (2).
Interim members of 2.
(1) Before members of the Advisory Board are nominated and Advisory Board.
appointed under section 22 (1) (a), the Minister shall appoint nine interim members.
(2) The Minister shall designate one of the interim members as the Chairman.
(3) The interim members shall cease to hold ofce upon sufcient members of the Advisory Board being appointed, under section 22 (1) (a), to constitute a quorum.
(4) While the interim members hold ofce the Advisory Board shall not recommend the appointment of the Director-General under section 23 (c).
(5) For greater certainty, service as an interim member shall not constitute service for a term for the purpose of paragraph 2 (2) of the First Schedule.
Existing procurement 3.
(1) Procurement proceedings commenced before this Act comes into proceedings operation shall be continued in accordance with the law applicable before this continued under old Act comes into operation.
law.
(2) A procurement proceeding commences for the purpose of subparagraph (1) when the rst advertisement relating to the procurement proceeding is published or, if there is no advertisement, when the rst documents are given to persons who wish to participate in the procurement proceeding.
Existing exemptions 4.
If, before this Act comes into operation, the Minister made a decision continued.
under Regulation 3 (2) of the Exchequer and Audit (Public Procurement) Regulations, 2001 with respect to the use of a different procedure for a procurement, that procurement shall be exempt from this Act.
Condentiality 5.
Section 44 shall apply with respect to procurement proceedings in relation to past completed before this Act comes into operation.
proceedings.
Rev.
2010] Public Procurement and Disposal CAP.
412C 63 6.
(1) Section 45 shall apply with respect to Records of past procurements.
(a) a procurement that took place before this Act comes into operation; or (b) a procurement, the procurement proceeding for which was terminated before this Act comes into operation.
(2) Section 45 (2), as it applies under subparagraph (1), does not require the record of a procurement to include anything that was not required before this Act comes into operation.
7.
Section 46 shall not apply with respect to a contract formed before Publication of this Act comes into operation.
existing contracts.
8.
Section 47 shall apply with respect to a contract formed before this Amendments to Act comes into operation but not to an amendment to such a contract made existing contracts.
before this Act comes into operation.
9.
Section 48 shall apply to contracts formed before this Act comes into Interest on overdue operation and to amounts under such contracts that became overdue before this amounts under Act comes into operation.
existing contracts.
10.
Section 49 shall apply to contracts formed before this Act comes Inspections and into operation including contracts that are no longer in force when this Act audits relating to comes into operation.
prior contracts.
Administrative 11.
Parts VII and VIII apply, with necessary modications, with respect review, etc.
for to procurement proceedings commenced before this Act comes into operation.
existing proceedings.
12.
Proceedings before the Public Procurement Review, Complaints and Continuation Appeal Board established under the Exchequer and Audit (Public Procurement) of existing Regulations, 2001 shall be continued before the Review Board under Part VII administrative review proceedings.
and the provisions of that Part shall apply, with necessary modications.
L.N.
51/2001.
13.
An investigation of procurement proceedings by the Public Continuation Procurement Directorate shall be continued under Part VIII and the provisions of existing investigations.
of that Part shall apply, with necessary modications.
14.
The grounds for debarring a person from participating in procurement Grounds for proceedings under section 115 extend to anything done before this Act comes debarment include into operation that would constitute a ground under that section.
previous actions.
15.
(1) Upon the establishment of the Authority each member of the staff Transfer of staff.
of the Public Procurement Directorate, including the Director, shall remain a member of the public service but shall be seconded to the Authority for a one year period.
64 CAP.
412C Public Procurement and Disposal [Rev.
2010 (2) If, within the rst year after the Authority is established, a person seconded to the Authority under subparagraph (1) enters into a written contract of service with the Authority the person shall cease to be a member of the public service without right to severance pay but without prejudice to any right to other remuneration or benets payable on termination or in respect of their public service.
(3) A person seconded to the Authority under subparagraph (1) shall cease to be so seconded and shall be re-deployed as a member of the public service if (a) the one year period of secondment under subparagraph (1) expires without the person having entered into a written contract under subparagraph (2); or (b) the person opts, within the one year period of secondment under subparagraph (1), to end his secondment.
(4) This paragraph does not apply with respect to staff whose duties are, in the opinion of the Director of the Public Procurement Directorate, primarily concerned with procurement operations rather than with the oversight of public procurement.
Transfer of 16.
Expenditures that were authorized for the 2005/2006 nancial year authorized to be used in relation to the Public Procurement Directorate and that, upon the expenditures for commencement of this Act, have not been expended, shall be deemed to be 2005/2006.
authorized for that nancial year to be used in relation to the Authority.
Financing of 17.
The Minister shall facilitate an adequate budget for the Authority Authority.
upon the commencement of this Act.
Transfer of assets.
18.
The assets of the Directorate of Public Procurement existing before the commencement of this Act shall be transferred to the Authority upon commencement of this Act.
Rev.
2010] Public Procurement and Disposal CAP.
412C 65 FOURTH SCHEDULE s.
145 CONSEQUENTIAL AMENDMENTS Kenya Roads Board Act, 1999 1.
(1) This paragraph amends the Kenya Roads Board Act, 1999.
No.
7 of 1999.
(2) Section 6 (2) (f) of the Act is deleted.
(3) Section 37 (b) of the Act is deleted.
Local Government Act 2.
Subsections (4), (5), (6) and (7) of section 143 of the Local Government Cap.
265.
Act are deleted.
Parliamentary Service Act, 2000 3.
Section 22 of the Parliamentary Service Act, 2000 is deleted.
No.
10 of 2000.
State Corporations Act 4.
Section 13 of the State Corporations Act is amended by adding the Cap.
446.
following new subsection at the end (4) This section does not apply with respect to procurements or disposals to which the Public Procurement and Disposal Act, 2005 applies.
Government Contract Act 5.
Section 8 of the Government Contract Act is deleted.
Cap.
25.
66 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] SUBSIDIARY LEGISLATION L.N.
174/2006.
THE PUBLIC PROCUREMENT AND DISPOSAL L.N.
129/2009, REGULATIONS, 2006 L.N.
141/2009.
part IprelImInary Citation and 1.
These Regulations may be cited as the Public Procurement and commencement.
Disposal Regulations, 2006 and shall come into operation on the 1st January, 2007.
Interpretation.
2.
In these Regulations, unless the context otherwise requires asset means movable and immovable property, tangible and intangible, including immovable property stores, equipment, shares, intellectual rights vested in the state or proprietary rights; procurement cycle means the cycle that starts with the initiation of the process of an individual procurement requirement and when the goods, works, services have been delivered and accepted; procurement plan means the document prepared annually by each procuring entity, to plan all procurement requirements necessary to perform the activity plan of the procuring entity; public-private partnership means an agreement between a procuring entity and a private party under which (a) the private party undertakes to perform a public function or provide a service on behalf of the procuring entity; (b) the private party receives a benet for performing the function, either by way of (i) compensation from a public fund; (ii) charges or fees collected by the private party from the users of a service provided to them; or (iii) a combination of such compensation and such charges or fees; (c) the private party is generally liable for the risks arising from the performance of the function depending on the terms of the agreement; pre-qualication procedure means the prequalication procedure set out in these Regulations; request for review means a request for administrative review led with the Review Board under sections 93, 106 or 117 of the Act; Public PrRev.
2010] ocurement and Disposal CAP.
412C 67 [Subsidiary] tenderer means a person submitting a tender; user department means the department in a procuring entity which initiates procurement proceedings.
3.
For the purposes of section 3 of the Act, public entity shall include Public entity.
(a) any body that uses public assets in any form of contractual undertaking including public private partnerships; (b) a company owned by a public entity to carry out functions that would have otherwise been performed by the public entity; and (c) any body in which the Government has a controlling interest.
4.
(1) The capacity building levy payable under section 18 (5) (d) of the Capacity building Act shall be one and a half percent of the contract price.
levy.
(2) The capacity building levy referred to in paragraph (1) shall not apply where the contract is one hundred per cent fully funded by a donor.
(3) Where the contract is partly funded by a donor, the capacity building levy shall be payable in respect of the portion funded by the Government.
5.
(1) For the purposes of section 22 (1) (a) of the Act, the Minister shall Membership of the appoint nine members of the Public Procurement Oversight Advisory Board Advisory Board.
from persons nominated by (a) the Institute of Certied Public Accountants of Kenya; (b) the Institution of Engineers of Kenya; (c) the Kenya National Chamber of Commerce and Industry; (d) the Kenya Federation of Master Builders; (e) the Kenya Institute of Management; (f) the Kenya Association of Manufacturers; (g) the Law Society of Kenya; (h) the Institute of Certied Public Secretaries of Kenya; (i) the Marketing Society of Kenya; (j) the Architectural Association of Kenya; (k) the Computer Society of Kenya; (l) the Institute of Surveyors of Kenya; 68 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] (m) the Federation of Kenya Employers; and (n) the Central Organization of Trade Unions.
(2) Each organization referred to in paragraph (1) shall submit to the Minister the curriculum vitae of two members being nominated of whom one shall be a woman.
Threshold matrix.
6.
(1) A procuring entity shall, pursuant to section 26 (3)(b) of the Act, undertake procurement in accordance with the threshold matrix set out in the First Schedule to these Regulations.
(2) The approval authorities for all procurement methods shall, for the purposes of section 26 (3) (c) of the Act, be as set out in the First Schedule.
(3) The Authority shall, by notice in the Gazette, classify procuring entities either as class A, class B or class C for the purposes of the First Schedule.
part II Internal organIzatIon of proCurIng entItIes Roles of accounting 7.
In addition to the responsibilities stipulated under section 27 (2) of ofcer.
the Act, the accounting ofcer shall be responsible for (a) ensuring that the procuring entity establishes a tender committee and a procurement committee in accordance with the Act and these Regulations; (b) ensuring that the procuring entity establishes a procurement unit; (c) signing contracts for the procurement and disposal activities on behalf of the procuring entity for contracts entered into in accordance with the Act and these Regulations; (d) ensuring that the procurement plans are prepared; and (e) ensuring that the procuring entity properly documents procurement proceedings and manages records in accordance with these Regulations.
Procurement unit.
8.
(1) A procuring entity shall establish a procurement unit in accordance with this Regulation.
(2) The level of qualication and experience required of procurement professionals under section 26 (9) of the Act shall be stipulated by the Authority.
(3) The functions of the procurement unit shall be to Public PrRev.
2010] ocurement and Disposal CAP.
412C 69 [Subsidiary] (a) maintain and update annually standing lists of registered tenderers required by the procuring entity and liaise with the Authority in respect of the Authoritys register of suppliers and procuring agents; (b) prepare, publish and distribute procurement and disposal opportunities including invitations to tender, pre-qualication documents and invitations for expressions of interest; (c) co-ordinate the receiving and opening of tender documents; (d) maintain and safeguard procurement and disposal documents and records in accordance with these Regulations; (e) submit shortlists and lists of pre-qualied tenderers to the tender committee or procurement committee for approval; (f) issue procurement and disposal documents to candidates in accordance with the Act and these Regulations; (g) propose the membership of evaluation committee to the accounting ofcer for approval; (h) co-ordinate the evaluation of tenders, quotations and proposals; (i) recommend a negotiating team for appointment by the accounting ofcer where negotiations are allowed by the Act and these Regulations and participate in such negotiations; (j) prepare and publish notices of award and notices of tender acceptance; (k) prepare contract documents, in line with the award decision; (l) prepare and issue rejection and debrieng letters; (m) prepare contract variations and modications to documents; (n) maintain and archive documents and records of the procurement and disposal activities for the required period; 70 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] (o) provide information, as required, for any petition or investigation to debar a tenderer or contractor or any investigation under review procedures; (p) implement the decisions of the procurement, tender and disposal committees, including co-ordinating all activities of these committees; (q) act as a secretariat to the tender, procurement and disposal committees; (r) liaise with the Authority and other bodies on matters relating to procurement and disposal; (s) prepare and submit to the Authority reports required under the Act, these Regulations and guidelines of the Authority; (t) monitor contract management by user departments to ensure implementation of contracts in accordance with the terms and conditions of the contracts; (u) report any signicant departures from the terms and conditions of the contract to the head of the procuring entity; (v) recommend the delegation of a procurement or disposal function to another procuring entity by the head of the procuring entity whenever a need arises; (w) prepare consolidated procurement and disposal plans; (x) advise the procuring entity on aggregation of procurement to promote economies of scale; (y) co-ordinate internal monitoring and evaluation of the supply chain function; (z) carry out periodic market surveys to inform the placing of orders or adjudication by the relevant award committee; (aa) conduct periodic and annual stock taking; (bb) certify the invoices and payment vouchers to suppliers; (cc) approve extension of the tender validity period; Public PrRev.
2010] ocurement and Disposal CAP.
412C 71 [Subsidiary] (dd) verify that the available stock levels warrant initiating a procurement process; (ee) carry out any other functions or duties as may be provided under the Act or these Regulations and any other functions that might be stipulated by the Authority.
9.
A user department shall be responsible for Responsibilities of (a) initiating procurement and disposal requirements and user departments.
forwarding them to the procurement unit; (b) participating in the evaluation of tenders, proposals and quotations; (c) reporting any departure from the terms and conditions of the contract to the procurement unit; (d) forwarding details of any required variations to contracts to the procurement unit for consideration and action; (e) maintaining and archiving records of contract management; (f) preparing any reports required for submission to the procurement unit, the procurement committee, the tender committee, head of procuring entity or the accounting ofcer; (g) undertaking conformity assessments of supplied goods, works and services with the specications of the contract documents; (h) endorsing the issuance of goods, works and services received notes; (i) preparing technical specications and submitting the same to the procurement unit; (j) assisting in the preparation of procurement and disposal plans; (k) making clarications on tenders, requests for quotations and any other matter as may be required; and (l) carrying out any other functions and duties as may be provided under the Act or these Regulations, or as may be stipulated by the Authority.
72 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] Tender committee.
10.
(1) A procuring entity shall establish a tender committee in the manner set out in the Second Schedule.
(2) The functions of the tender committee shall be to (a) review, verify and ascertain that all procurement and disposal has been undertaken in accordance with the Act, these Regulations and the terms set out in the tender documents; (b) approve the selection of the successful tender or proposal; (c) award procurement contracts in accordance with thresholds prescribed in First Schedule; (d) ensure that funds are available for the procurement under consideration; (e) ensure that the procuring entity does not pay in excess of prevailing market prices; (f) review and approve aggregation of procurements where proposed; (g) review and approve the use of lots where packaging into lots has been proposed; (h) review the selection of procurement method and where a procurement method, other than open tender, has been proposed, to ensure that the adoption of the other procurement method is in accordance with the Act, these Regulations and any guidelines stipulated by the Authority; (i) approve the list of tenderers in cases of restricted tendering pursuant to regulation 54 (3); (j) approve the list of persons qualied to submit proposals pursuant to section 80 of the Act; (k) approve the list of persons to be given requests for quotations pursuant to regulation 59 (2); (l) approve negotiations under the Act, these Regulations and as may be stipulated by the Authority; (m) approve the amendment of contracts previously awarded by the tender committee, in accordance with the Act and these Regulations; Public PrRev.
2010] ocurement and Disposal CAP.
412C 73 [Subsidiary] (n) review the quarterly reports on quotations that have been awarded by the procurement committee.
(o) undertake any other functions and duties as are provided under the Act, these Regulations or as may be stipulated by the Authority.
11.
(1) In considering submissions made by the procurement unit or Approvals by tender evaluation committees, the tender committee may committees.
(a) approve a submission; or (b) reject a submission with reasons; or (c) approve a submission, subject to minor clarications by the procurement unit or evaluation committee.
(2) The tender committee shall not (a) modify any submission with respect to the recommendations for a contract award or in any other respect; (b) reject any submission without justiable and objective reasons; (3) Where the tender committee rejects the recommendation of the evaluation committee, the decision shall be reported to the head of the procuring entity or to the accounting ofcer.
(4) Any submission rejected by the tender committee may be resubmitted and the tender committee shall provide an explanation and a justication for its decision thereof.
12.
(1) The accounting ofcer or the head of the procuring entity shall Procedure for tender appoint an alternate member for each member of the tender committee and committee meetings.
only the alternate shall attend any meeting of the tender committee whenever the member is unable to attend.
(2) The quorum of the tender committee shall be ve members including the chairman.
(3) Decisions of the tender committee shall be by consensus and where there is no consensus, the decision shall be through voting by simple majority and where there is a tie, the chairman shall have a second or casting vote.
(4) Where any member of the tender committee has a direct or indirect interest in any matter, he or she shall declare his or her interest in the matter and shall not participate in the deliberations or decision-making process of the committee in relation to that particular matter.
(5) Members of the tender committee may be paid such honoraria as the procuring entity may determine.
74 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] (6) The tender committee shall cause to be prepared minutes of all its meetings and such records shall include (a) a register of attendance; (b) date of the meeting; (c) list of all matters considered; (d) the decision made for each matter, including any major issues discussed, the reasons for any rejections and any clarications or minor amendments to which the approval is subject; (e) a note on the basis of any evaluation made; (f) any conicts of interest declared by members; (g) any dissenting opinions among tender committee members; and (h) such other records as may be necessary.
(7) The tender committee may invite independent advisers or members of the procurement unit to explain submissions or provide technical advice, where required.
(8) To enhance transparency of the procurement process the procuring entity shall invite in addition to the representative of various departments, at least two observers to attend its meetings in cases where the value of the contract is estimated to be above fty million shillings.
(9) At least one of the observers invited under paragraph (8) shall come from a duly recognized private sector organization or discipline relevant to the procurement under consideration.
(10) The failure of an invited observer to attend a meeting shall not nullify the procurement proceedings.
Procurement 13.
(1) A procuring entity shall establish a procurement committee.
committee.
(2) The procurement committee shall be responsible for procurement below the threshold of the tender committee set out in the First Schedule.
(3) The procurement committee shall be composed of (a) an ofcial delegated by the head of the procuring entity or the accounting ofcer, who shall serve as the chairman of the committee; (b) the nance ofcer or an ofcer carrying out related functions; (c) three other members appointed by the head of the procuring entity or the accounting ofcer.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 75 [Subsidiary] (4) The head of the procurement unit shall appoint an ofcer to serve as secretary to the procurement committee.
14.
(1) In considering submissions made by the procurement unit, the Approvals by procurement committee may procurement (a) approve a submission; or committee.
(b) reject a submission with reasons; or (c) approve a submission, subject to minor clarications by the procurement unit.
(2) The procurement committee shall not (a) modify any submission with respect to the recommendations for contract award or in any other respect; (b) reject any submission without justiable and objective reasons.
(3) Any submission rejected by the procurement committee may be resubmitted and the procurement committee shall provide explanation and justication of its decision thereof.
15.
(1) The quorum for a meeting of the procurement committee shall Procedure for be the chairman and at least two other members.
procurement (2) Where any member is unable to attend a meeting of the procurement committee meetings.
committee, that member shall delegate authority to an appropriate ofcial, who shall attend the meeting in his or her place.
(3) Members of the procurement committee shall ensure that their authority is only delegated to ofcials with appropriate skills and experience to represent them at a meeting of the procurement committee.
(4) Decisions of the procurement committee shall be by consensus and where there is no consensus, the decision shall be through voting by simple majority and where there is a tie, the chairman shall have a second or casting vote.
(6) Where any member of the procurement committee has a direct or indirect interest in any matter, he or she shall declare his or her interest in the matter and shall not participate in the deliberations or decision-making process of the committee in relation to that particular matter.
(6) The procurement committee may invite independent advisers or members of the procurement unit to explain submissions or provide technical advice, where required.
(7) The procurement committee shall cause to be prepared minutes of all its meetings and such records shall include 76 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] (a) a register of attendance; (b) date of the meeting; (c) list of all matters considered; (d) the decision made for each matter, including any major issues discussed, the reasons for any rejections and any clarications or minor amendments to which the approval is subject; (e) a note on the basis of any evaluation made; (f) any conicts of interest declared by members; (g) any dissenting opinions among procurement committee members; and (h) such other records as may be necessary.
Evaluation 16.
(1) For each procurement within the threshold of the tender committees.
committee, the procuring entity shall establish an evaluation committee for the purposes of carrying out the technical and nancial evaluation of the tenders or proposals.
(2) An evaluation committee established under paragraph (1) may comprise (a) a separate nancial evaluation committee and a separate technical evaluation committee; or (b) a combined nancial and technical evaluation committee.
(3) An evaluation committee shall consist of a chairman and at least two other members all appointed by the accounting ofcer or the head of the procuring entity upon recommendation by the procurement unit.
(4) No person shall be appointed under paragraph (3) if such person is a member of the tender committee of the procuring entity.
(5) A technical evaluation committee established in accordance with paragraph (2) (a) shall be responsible for (a) the technical evaluation of the tenders or proposals received in strict adherence to the compliance and evaluation criteria set out in the tender documents; (b) performing the evaluation with all due diligence and within a period of thirty days after the opening of the tenders.
(6) Each member of the technical evaluation committee shall evaluate independently from the other members prior to sharing his or her analysis, questions and evaluation including his or her rating with the other members of the technical evaluation committee.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 77 [Subsidiary] (7) A nancial evaluation committee established in accordance with paragraph (2) shall be responsible for (a) the nancial evaluation of the tenders or proposals received in strict adherence to the compliance and evaluation criteria set out in the tender documents or request for proposals; (b) performing the evaluation with all due diligence and within a period of ve days from the time of completion of the technical evaluation.
(8) Under no circumstances may any member of an evaluation committee enter into direct communication with any of the tenderers participating in a tender or proposal that such evaluation committee is considering.
(9) An evaluation committee shall prepare a report on the analysis of the tenders received, and nal ratings assigned to each tender and submit the report to the tender committee.
(10) The report prepared under paragraph (9) shall include (a) minutes of the opening of the tenders or proposals; (b) the results of the preliminary evaluation, with reasons why any tenders or proposals were rejected; (c) the scores awarded by each evaluator for each tender or proposal; (d) a summary of the relative strengths and weaknesses of each tender or proposal; (e) the total score for each tender or proposal; and (f) a recommendation to award the tender to the lowest evaluated tenderer or to the person who submitted the proposal with the highest total score.
17.
(1) A procuring entity shall establish an inspection and acceptance Inspection and committee.
acceptance (2) The inspection and acceptance committee shall be composed of a committee.
chairman and at least two other members appointed by the accounting ofcer or the head of the procuring entity on the recommendation of the procurement unit.
(3) The inspection and acceptance committee shall immediately after delivery of the goods, works or services (a) inspect and where necessary, test the goods received; 78 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] (b) inspect and review the goods, works or services in order to ensure compliance with the terms and specications of the contract; (c) accept or reject, on behalf of the procuring entity, the delivered goods, works or services.
(4) The inspection and acceptance committee shall (a) ensure that the correct quantity of has been received; (b) ensure that the goods, works or services meet the technical standards dened in the contract; (c) ensure that the goods, works or services have been delivered or completed on time, or that any delay has been noted; (d) ensure that all required manuals or documentation have been received; and (e) issue interim or completion certicates or goods received notes, as appropriate and in accordance with the contract.
Transfer of 18.
(1) Pursuant to the provisions of section 27 (6) of the Act, the procurement Authority may transfer the procuring responsibility of a procuring entity to authority.
another procuring entity or procuring agent (a) where the Authority is of the view that the procuring entity lacks the capacity to comply with the Act, these Regulations or the directions issued by the Authority, due to its size or capacity; (b) where the accounting ofcer or the head of the procuring entity decides that it would be more economical or efcient to transfer the function and requests the Authority to do so.
(2) The accounting ofcer or the head of the procuring entity who requests the Authority to transfer its function shall remain accountable for all decisions taken by the procuring entity to which the function is transferred.
(3) Where the procurement and disposal function is transferred to another procuring entity under paragraph (1) (b), the accounting ofcers or the heads of the two procuring entities shall agree on (a) any function that may be excluded from the transfer arrangement; (b) the mechanism for implementation of the procurement and disposal requirement; (c) reporting and monitoring procedures and responsibilities; (d) any limitations or exceptions to the transfer; and (e) any costs to be paid.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 79 (4) The agreement for transferring the procuring responsibility under [Subsidiary] paragraph (3) shall be in writing and signed by the accounting ofcers or the heads of the two procuring entities.
19.
(1) A procuring agent shall pay a registration fee of twenty thousand Procuring agents.
shillings to the Authority.
(2) The fee under paragraph (1) shall be payable only once at the time of the initial registration.
(3) The procuring entity shall (a) meet the cost of the services offered by the procuring agent; (b) prepare the terms of reference for the procuring agent assignment in accordance with the provisions of the Act and these Regulations; (c) be responsible for the actions and performance of the procuring agent.
(4) Where the procuring agent is engaged, a procurement committee or a tender committee shall adjudicate the contract award.
(5) A procuring entity shall not contract out both the procurement functions and the contract management functions to the same procuring agent.
(6) None of the functions of the accounting ofcer, procurement committee or the tender committee shall be contracted out to a procuring agent.
20.
(1) A procuring entity shall prepare a procurement plan under Procurement section 26 (3) (a) of the Act for each nancial year as part of the annual budget planning.
preparation process.
(2) Annual procurement planning shall be integrated with applicable budget processes and based on indicative or approved budgets, as appropriate.
(3) Where appropriate, multi-year procurement plans may be prepared and shall be integrated into the medium term budgetary expenditure framework.
(4) A head of department shall submit an annual procurement plan to the accounting ofcer at least thirty days before the close of each nancial year.
(5) The consolidated annual procurement plan shall be prepared by the procurement unit and approved by the head of the procuring entity and where applicable by the board of directors or a similar body.
21.
(1) The annual procurement plan for each procuring entity shall Contents of include procurement plan.
80 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] (a) a detailed breakdown of the goods, works, or services required; (b) a schedule of the planned delivery, implementation or completion dates for all goods, works, or services required; (c) an indication and justication for whether it shall be procured within a single-year period or under a multi-year arrangement; (d) an indication of which items can be aggregated for procurement as a single package or for procurement through any applicable arrangements for common-user items; (e) an indication of which items shall be packaged into lots; (f) an estimate of the value of each package of goods, works or services required and an indication of the budget available and sources of funding; (g) an indication of the appropriate procurement method for each procurement requirement; (2) Where transfer of responsibilities is justied, the optimal period of such transfer shall be established taking into account seasonal price variations, warehousing and distribution capacity, and product shelf life.
(2) The Authority shall issue instructions to the procuring entities on the format for preparing procurement plans.
Purchase requisition 22.
(1) Every procurement requirement shall be initiated using a and authorization.
purchase requisition which shall include all necessary information pertaining to the procurement.
(2) When estimating the value of the goods, works or services, the procuring entity shall ensure that the estimate is realistic and based on up-to- date information on economic and market conditions.
(3) The purchase requisition shall be approved by the person specied in the First Schedule, prior to the initiation of procurement proceedings.
(4) Approved procurement requisitions shall be submitted to the procurement unit of the procuring entity to initiate procurement proceedings.
(5) Upon receipt of the approved purchase requisition, the procurement unit shall prepare a procurement plan for each individual procurement requirement, which shall include an estimate of the time required for each stage in the procurement cycle.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 81 [Subsidiary] part IIIgeneral proCurement rules 23.
(1) Where the procuring entity conducts a pre-qualication procedure pursuant to the Act, it shall publish an invitation to candidates to submit Pre-qualication procedures.
applications to be pre-qualied.
(2) The invitation referred to in paragraph (1) shall include (a) the name, address and contact details of the procuring entity; (b) an 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-qualication 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.
24.
(1) A procuring entity shall promptly issue pre-qualication documents to all candidates who request them and shall maintain a record of Prequalication all candidates to whom documents are issued.
documents.
(2) The pre-qualication document shall contain all the information necessary for the potential candidates to prepare and submit applications to be pre-qualied.
(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.
82 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] (4) The procuring entity shall allow the candidates at least fourteen days to prepare and submit their applications to be pre-qualied.
(5) The procuring entity shall promptly respond to all requests for any clarication relating to the pre-qualication document where such requests are received before the deadline for submission.
Approval of pre- 25.
(1) The procuring entity shall, in writing, record the results of its qualied candidates.
evaluation of applications for pre-qualication using the evaluation criteria in the pre-qualication documents and shall state which candidates were found to be qualied and the reasons why any candidates were not qualied.
(2) The record of results prepared under paragraph (1) shall be submitted to the tender committee for approval.
(3) The procuring entity shall invite tenders from only the persons who have been pre-qualied under this regulation.
Limitations of 26.
For the purposes of section 33 (2) of the Act, a relative is limited to contracts with a spouse or 2 child.
employees.
Procurement 27.
(1) Subject to the Act, all approvals relating to any procedures in approvals.
procurement shall be in writing and properly dated, documented and led.
(2) No procurement approval shall be made to operate retrospectively to any date earlier than the date on which it is made.
(3) No procurement approval shall be made by a person exercising delegated authority unless such delegation has been approved by the accounting ofcer.
(4) A procuring entity shall maintain specimen signatures of all persons authorised to make approvals within the procurement process.
(5) Responsibility for each approval made in the procurement procedure shall rest with both the person who delegates the authority and the person to whom the approval authority is delegated.
Preferences and 28.
(1) For the purposes of section 39 (8) of the Act, the threshold below reservations.
which exclusive preference shall be given to citizens of Kenya, shall be the sum of (a) fty million shillings for procurements in respect of goods or services; (b) two hundred million shillings for procurements in respect of works.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 83 (2) The margin of preference [Subsidiary] (a) for the purposes of section 39 (8) (b) (i) of the Act, shall be fteen percent of the evaluated price of the tender; (b) for the purposes of section 39 (8) (b) (ii) of the Act, shall be- (i) six percent of the evaluated price of the tender where the percentage of shareholding of the locals is less than twenty percent; and (ii) eight percent of the evaluated price of the tender where the percentage of shareholding of the locals is less than fty one percent but above twenty percent.
29.
(1) The standard tender documents for purposes of section 29 (4) of Tender documents.
the Act shall be as set out in the Third Schedule to these Regulations.
(2) Pursuant to section 9 (c) (i) of the Act, the Authority shall avail the standard tender documents to procuring entities.
30.
Pursuant to section 9 (c) (i) of the Act, the Authority may, in Manuals by the consultation with specic procuring entities, develop internal procurement Authority.
manuals, administrative guidelines and best practices manuals specic to such entities consistent with the Act and these Regulations.
31.
For the purposes of section 47 (b) of the Act, any variation of a Variations to contract shall be effective only if contracts.
(a) the price variation is based on the prevailing consumer price index obtained from Central Bureau of Statistics or the monthly ination rate issued by the Central Bank of Kenya; (b) the quantity variation for goods and services does not exceed ten percent of the original contract quantity; (c) the quantity variation for works does not exceed fteen per cent of the original contract quantity; and (d) the price or quantity variation is to be executed within the period of the contract.
32.
(1) A contract document shall specify the grounds on which the Contract termination.
contract may be terminated and specify the procedures applicable to termination.
(2) The procurement unit shall obtain the approval of the tender committee which authorised the original contract, prior to terminating the contract and the request for approval shall clearly state (a) the reasons for termination; (b) the contractual grounds for termination; and (c) the cost of terminating the contract.
84 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] 33.
(1) The Authority shall issue guidelines on the format of procurement Format of documents to be adopted for approvals and the documentation of the procurement procurement procedure.
documents.
(2) The Authority may issue standard forms by which a procuring entity shall carry out specic procurement procedures.
(3) The documents shall be clear and bear references to the procurement requirement, dates and signatures of authorizing ofcers.
(4) The Authority may, from time to time, issue circulars and guidelines on the content of procurement documentation.
Additional 34.
(1) For the purposes of section 45 (2) (h) of the Act, the following procurement records.
documents shall be treated as part of the procurement records (a) where the procurement or the disposal requirement involves feasibility studies and surveys directly carried out or accepted by the procuring entity in order to prepare the tender documents, the reports and other documents resulting from these studies and surveys; (b) all receipts for the sale of tender documents, request for clarications and clarications issued by the procuring entity; (c) records of any negotiations; (d) end of activity report as may be stipulated by the Authority.
(2) The Authority may issue guidelines relating to the use, record management, ling and storage of procurement documentation.
(3) A procuring entity shall maintain an individual le for each procurement requirement containing all information documents and communications relating to that procurement proceeding and such le shall be marked with the relevant procurement reference number.
part Ivopen tenderIng Open tendering.
35.
A procuring entity that conducts procurement using the open tender method shall be subject to the procurement thresholds set out in the First Schedule.
Time for international 36.
For the purposes of section 71 (c) of the Act, the minimum period tendering.
of time between advertisement and deadline for submission of international tenders shall be thirty days.
Threshold for 37.
For the purposes of section 54 (2) of the Act, the threshold for national national advertising.
advertising shall be as set out in the First Schedule.
Additional 38.
For the purposes of section 52 (3) (k), the tender documents shall information to be contain contained in tender documents.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 85 [Subsidiary] (a) a statement whether tenders which do not conform precisely to the description of requirements, but which meet the objectives of the procurement in an alternative manner, may be permitted and the manner in which such tenders shall be evaluated; (b) instructions on the sealing, labeling and submission of tenders, including the location and deadline for submission of tenders and procedures for the withdrawal, modication or replacement of tenders; (c) any applicable preference programs and the margin of preference and the manner in which such preference will be applied in the evaluation; (d) the procedures and criteria to be used in cases where a procuring entity decides to invite tenders in two separate phases for the purposes of carrying out the respective technical and nancial evaluation of the same tender; (e) the procedure and criteria to be used to evaluate and compare the tenders as set out in regulations 46 to 52.
39.
(1) Pursuant to section 56 (2)of the Act, procuring entity may, Fee for tender documents.
charge a fee not exceeding ve thousand shillings for copies of tender or pre- qualication documents.
(2) In arriving at the fee payable under paragraph (1), a procuring entity shall only have regard to the costs related to printing, copying, and distribution or of converting the documents into electronic form.
(3) Where the tender documents are obtained electronically, the fee payable under paragraph (2) shall be paid at the time of submission of the tender.
(4) Where tender documents are sold, the procuring entity may allow potential tenderers to inspect the documents, prior to purchasing the document.
40.
The minimum time for the preparation of tenders for the purposes of Time for preparing section 55 (1) of the Act shall be a period of twenty one days.
tenders.
41.
(1) The amount of any tender security under section 57 (2) of the Act Tender security.
shall be expressed either as a xed amount or as a percentage of the estimated value of the contract and shall not in either case exceed two percent of the estimated value of the contract.
(2) In determining the amount of tender security under paragraph (1), a procuring entity shall take into account- 86 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] (a) the cost to tenderers of obtaining a tender security; (b) the estimated value of the contract; and (c) the risk of tenderers failing to fulll the conditions of their tenders.
(3) The tender security to be provided under section 57 of the Act shall be in any of the following forms only (a) cash; (b) a bank guarantee; (c) such insurance company guarantee as may be approved by the Authority; (d) a letter of credit.
(4) No tender security shall be accepted under the Act unless such security is valid for a period of at least thirty days after the expiry of the tender validity period.
(5) The procuring entity shall, where it extends the tender validity period, request the tenderers to extend the period of validity of their tender securities.
(6) A procuring entity may, where it deems necessary, verify the authenticity of any tender security.
Period of validity of 42.
(1) The period of validity of a tender shall be stated in calendar days tenders.
from the date of opening of the tender.
(2) For purposes of this regulation, a calendar day includes any day of the week including Saturday, Sunday and a public holiday.
Inquiries relating to 43.
(1) Where a tenderer makes an inquiry relating to the tender tender documents.
documents under section 53 (2) of the Act, the procuring entity shall promptly reply in writing.
(2) The reply under paragraph (1) shall be copied to all tenderers and shall include a description of the inquiry but without identifying the source.
(3) The procuring entity shall not be bound to reply to inquiries received after the deadline for submitting inquiries stipulated in the tender documents.
Form of tender box.
44.
A procuring entity shall, for purposes of section 58 (4) of the Act, ensure that (a) a tender box has two locks; (b) the keys for each lock are kept by a different ofcer; and Public PrRev.
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412C 87 [Subsidiary] (c) the tender box remains locked until the time for tender opening.
45.
(1) Pursuant to section 60 (5) (b) of the Act, the total price of the Opening of tenders.
tender- (a) may not be read out where a tender consists of numerous items that are quoted for separately; (b) shall not be read out where a tender is preceded by a technical evaluation and such tender has not met the technical evaluation criteria.
(2) Where a tenderer fails a technical evaluation under paragraph (1) (b) a procuring entity shall return the nancial proposal unopened.
(3) A tender opening committee shall, where applicable, record in the tender opening minutes whether any sample has been submitted in respect of any tender.
46.
A procuring entity shall, for purposes of section 66 (6) of the Act, Period for evaluation evaluate the tenders within a period of thirty days after the opening of the tender.
of tenders.
47.
(1) Upon opening of the tenders under section 60 of the Act, the Preliminary evaluation committee shall rst conduct a preliminary evaluation to determine evaluation of open whether tenders.
(a) the tender has been submitted in the required format; (b) any tender security submitted is in the required form, amount and validity period; (c) the tender has been signed by the person lawfully authorised to do so; (d) the required number of copies of the tender have been submitted; (e) the tender is valid for the period required; (f) all required documents and information have been submitted; and (g) any required samples have been submitted.
(2) The evaluation committee shall reject tenders, which do not satisfy the requirements set out in paragraph (1).
48.
(1) A procuring entity shall reject all tenders, which are not responsive Non-responsive in accordance with section 64 of the Act.
tenders to be rejected.
(2) The classication of a deviation from the requirements as minor under 88 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] section 64 (2) (a) of the Act shall be applied uniformly and consistently to all the tenders received by the procuring entity.
Technical evaluation.
49.
(1) Upon completion of the preliminary evaluation under Regulation 47, the evaluation committee shall conduct a technical evaluation by comparing each tender to the technical requirements of the description of goods, works or services in the tender document.
(2) The evaluation committee shall reject tenders which do not satisfy the technical requirements under paragraph (1).
Financial valuation.
50.
(1) Upon completion of the technical evaluation under Regulation 49, the evaluation committee shall conduct a nancial evaluation and comparison to determine the evaluated price of each tender.
(2) The evaluated price for each bid shall be determined by (a) taking the bid price, as read out at the bid opening; (b) taking into account any corrections made by a procuring entity relating to arithmetic errors in a tender; (c) taking into account any minor deviation from the requirements accepted by a procuring entity under section 64 (2) (a) of the Act; (d) where applicable, converting all tenders to the same currency, using a uniform exchange rate prevailing at the date indicated in the tender documents; (e) applying any discounts offered in the tender; (f) applying any margin of preference indicated in the tender documents.
(3) Tenders shall be ranked according to their evaluated price and the successful tender shall be the tender with the lowest evaluated price in accordance with section 66 (4) of the Act.
Evaluation report.
51.
(1) An evaluation report prepared under section 66 (5) of the Act shall include (a) a summary of all the tenders received and opened; (b) the results of the preliminary evaluation under Regulation 47; (c) the results of the technical evaluation under Regulation 49; (d) reasons why any tenders were rejected; Public PrRev.
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412C 89 [Subsidiary] (e) details of any minor deviations accepted under section 64 of the Act and the way in which such deviations were quantied and taken into account in the evaluation and comparison of the tenders; (f) the evaluated price of each tender, showing any discounts, corrections or adjustments to the tender price and any conversion to a common currency; (g) the ranking of the tenders each according to its total evaluated price; (h) the results of any conrmation of qualication conducted under Regulation 52; and (i) a recommendation to award the contract to the lowest evaluated tender; (j) such other recommendation as may be necessary.
(2) The evaluation report prepared under paragraph (1) shall be considered by the tender committee, prior to awarding the contract or taking any other action in relation to the procurement as may be necessary.
52.
(1) Where so indicated in the tender documents, a procuring entity Conrmation of may, prior to the award of the tender, conrm the qualications of the tenderer who submitted the lowest evaluated responsive tender, in order to determine qualications.
whether the tenderer is qualied to be awarded the contract in accordance with section 31 (1) of the Act.
(2) Where so indicated in the tender documents, if the lowest evaluated tenderer is determined under paragraph (1) not to be qualied in accordance with the Act, the tender shall be rejected and a similar conrmation of qualications conducted on the tenderer who submitted the next lowest evaluated responsive bid.
part valternatIve proCurement proCedures 53.
(1) A procuring entity may use restricted tendering only if the Use of restricted conditions provided in sections 29 (3) and 73 (2) of the Act are satised.
tendering.
(2) A procuring entity that conducts procurement using the restricted tendering method shall be subject to the procurement thresholds set out in the First Schedule.
54.
(1) Save as is otherwise provided in this Regulation, the procedure for Procedure for open tendering set out in the Act and these Regulations shall, for the purposes restricted tendering.
of section 73 (1) of the Act, apply mutatis mutandis to restricted tendering.
(2) A procuring entity shall, for the purpose of identifying pre-qualied contractors pursuant to section 73 (2) (a) of the Act, use the pre-qualication procedures set out in Regulations 23, 24 and 25 or otherwise as permitted under section 32 of the Act.
90 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] (3) Where restricted tendering is used pursuant to section 73 (2)(b) of the Act, the procuring entity shall invite tenders from at least ten persons selected from the list maintained under Regulation 8 (3) (a).
(4) Where restricted tendering is used pursuant to section 73 (2) (c) of the Act, the procuring entity shall invite tenders from all the known suppliers of the goods, works or services.
(5) The minimum time for the preparation of tenders for the purposes of section 73 of the Act shall be a period of fourteen days.
Request for 55.
(1) A procuring entity that conducts procurement using the request proposals.
for proposals method pursuant to section 76 of the Act shall be subject to the procurement thresholds set out in the First Schedule.
(2) The notice inviting expressions of interest prepared by the procuring entity pursuant to section 78 of the Act shall give a minimum period of fourteen days for tenderers to submit their expressions of interest.
Terms of reference.
56.
For the purposes of section 79 (b) of the Act, the terms of reference prepared by a procuring entity shall set out (a) the background including the reasons necessitating the procurement; (b) the objects to be achieved by the procurement; (c) the output expected from the person awarded the tender; (d) the qualications necessary for a person to be awarded the tender.
Preliminary 57.
The procedure for preliminary evaluation of open tenders set out in evaluation of Regulation 47 shall apply to evaluation of proposals under section 82 of the Act.
proposals.
Procedure for 58.
(1) A procuring entity shall not enter into any negotiations pursuant negotiation.
to section 84 of the Act until the tender committee has approved the successful proposal.
(2) The negotiations shall be conducted by at least two members of staff of the procuring entity appointed by the accounting ofcer or the head of the procuring entity on the recommendation of the procurement unit.
(3) The members of staff conducting the negotiations under paragraph (2) shall prepare a report of the negotiations and submit it to the tender committee for decision making.
(4) The report prepared under paragraph (3) shall form part of the records of the procurement.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 91 59.
(1) A procuring entity that conducts procurement using the request [Subsidiary] for quotations method pursuant to section 88 of the Act shall be subject to the Request for procurement thresholds set out in the First Schedule.
quotations.
(2) For the purpose of determining the persons to be given a request for quotations under section 89 of the Act, a procuring entity shall (a) prepare a list of qualied persons (i) selected from the list maintained under Regulation 8 (3) (a) (ii) from its own knowledge of the market; (b) submit the list prepared under paragraph (a) to the tender committee for approval; and (c) ensure a fair and equal rotation amongst the persons on the list kept under paragraph (a) in respect to giving the requests for quotations.
60.
A request for quotations prepared by a procuring entity under section Submission of 89 (2) (d) of the Act shall set out quotations.
(a) a requirement that quotations be submitted in sealed envelopes; and (b) the mode of delivery of the sealed envelopes to the procuring entity.
61.
(1) The opening, evaluation and comparison of quotations shall Opening and be carried out jointly by the procurement unit and the user department of the evaluation of procuring entity.
quotations.
(2) Where the procurement unit is of the view that the successful quotation is higher than the prevailing market price, the procurement unit shall reject the quotations and repeat the process by giving a fresh request for quotations to a set of new persons in the list approved by the tender committee under Regulation 59 (2) (b).
(3) Pursuant to section 30 (3) of the Act the procurement unit shall not accept a quotation under section 89 (4) of the Act if the quotation is above the prevailing real market price.
62.
(1) A procuring entity that conducts procurement using the direct Direct procurement.
procurement method pursuant to section 74 of the Act shall be subject to the procurement thresholds set out in the First Schedule.
(2) Where a procuring entity uses direct procurement, the procuring entity shall record the reasons upon which it makes a determination that the relevant condition set out in section 74 of the Act has been satised.
(3) A procuring entity shall, within fourteen days after the notication of 92 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] the award of the contract, report any direct procurement of a value exceeding ve hundred thousand shillings to the Authority.
(4) The procedure for negotiations for proposals set out in Regulation 58 shall apply mutatis mutandis to negotiations relating to direct procurement pursuant to section 75 (a) of the Act.
(5) A procuring entity shall not enter into a contract under section 75(c) of the Act unless it is satised that the offer (a) meets the requirements of the procuring entity as specied under paragraph (2); and (b) is at the prevailing real market price.
Low value 63.
(1) For the purposes of section 90 (2) of the Act, a procuring entity procurement.
may use a low value procurement procedure only if (a) the estimated cost of the goods, works or services being procured per item is less than or equal to the prescribed maximum value as set out in the First Schedule; (b) no benet would accrue to the procuring entity in terms of time or cost implications if the procuring entity uses requests for quotations or any other procurement method; (c) the procedure is not being used for the purpose of avoiding competition; (d) the use of the procedure has been recommended by the procurement committee after a market survey.
(2) The following procedure shall apply in respect to low value procurement (a) the procurement unit shall procure the goods, works or services from a reputable outlet or provider through direct shopping; (b) an original invoice or receipt for the low value procurement of goods, works or services and the price paid shall be obtained and signed by the person undertaking the procurement.
Use of specially 64.
(1) For purposes of section 92 of the Act, the Authority may allow permitted procedures.
the use of specially permitted procedure (a) where exceptional requirements make it impossible, impracticable or uneconomical to comply with the Act and these Regulations, or (b) where the market conditions or behavior do not allow effective application of the Act and these Regulations, or Public PrRev.
2010] ocurement and Disposal CAP.
412C 93 [Subsidiary] (c) for specialized or particular requirements that are regulated or governed by harmonized international standards or practices.
(2) A procuring entity shall (a) rst obtain the approval of its tender committee; and (b) submit the proposal and all the tender documents to the Authority for approval before proceeding with the procedure.
(3) The Authority shall maintain a register of all specially permitted procedures allowed.
(4) The Authority shall issue detailed guidelines for concessioning or public private partnership.
65.
All contract award decisions shall be taken by the appropriate award Award of contract.
authority, in accordance with the levels of Authority specied in the First Schedule.
66.
(1) A procuring entity shall, upon rejecting unsuccessful tenders return Notication of the any tender securities and any unopened nancial proposals.
award.
(2) Where so requested by an unsuccessful tenderer, a procuring entity shall, within fourteen days after a request, provide written reasons as to why the tender, proposal or application to be pre-qualied was unsuccessful.
(3) The reasons given under paragraph (2) shall not contain any information on any other tender other than information that is publicly available from tender openings or published notices.
part vIadmInIstratIve revIew of proCurement proCeedIngs ACOMPOSITION AND MEMBERSHIP OF THE REVIEW BOARD 67.
(1) The members of the Review Board shall be appointed for a term Appointment and of three years and shall be eligible for reappointment for one further term of tenure of members.
three years.
(2) Subject to paragraph (1), a member shall hold and vacate ofce in accordance with the members terms of appointment.
68.
(1) Pursuant to section 25 of the Act, the Review Board shall Composition and comprise of membership.
(a) six members appointed by the Minister from among persons nominated by; (i) a Kenya Association of Manufacturers; (ii) a Law Society of Kenya; (iii) the Architectural Association of Kenya; 94 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] (iv) the Institution of Engineers of Kenya; (v) the Institute of Certied Public Accountants of Kenya; (vi) the Kenya Institute of Supplies Management; (vii) the Institute of Certied Public Secretaries of Kenya; (viii) the Chartered Institute of Arbitrators; (ix) the Kenya National Chamber of Commerce and Industry; (x) the Kenya Institute of Management; (xi) the Computer Society of Kenya; (xii) the Pharmaceutical Society of Kenya; (xiii) the Federation of Kenya Employers; (xiv) the Central Organization of Trade Unions (b) three other members appointed by the Minister; (c) a Chairman appointed by the Minister from among the persons appointed under paragraph (a); (2) Each organization referred to in sub regulation (1) (a) shall submit to the Minister the curriculum vitae of two members being nominated of whom one shall be a woman.
(3) The Director General shall appoint a Secretary to the Review Board from amongst the staff of the Authority.
Quorum, panels and 69.
(1) The quorum of the Review Board shall be three members including proceedings.
the Chairman.
(2) The Secretary may in consultation with the Chairman and the Review Board constitute a panel of three members to hear and determine a request for review and each panel shall elect its own chairman.
(3) In the absence of the Chairman, the Review Board may designate one member to act as Chairman for the purpose of that meeting.
(4) Decisions of the Review Board shall be taken by simple majority but in the case of a tie the proposal supported by the Chairman shall prevail.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 95 [Subsidiary] 70.
The Chairman or any other member of the Review Board may at any Resignation from ofce.
time, by notice to the Minister, resign from his ofce.
71.
The Minister may terminate a persons appointment as a member of Termination of the Review Board only if the person appointment.
(a) is unable to perform the functions of his ofce by reason of mental or physical inrmity; (b) is adjudged bankrupt; (c) is convicted of an offence under the Penal Code, the Anti Corruption and Economic Crimes Act, 2003, or the Act or these Regulations or an offence involving dishonesty; or (d) is absent from three consecutive meetings of the Review Board to which the member has been invited without reasonable excuse.
72.
The Authority shall pay the members of the Review Board such Allowances.
allowances as may be determined by the Advisory Board.
BPROCEDURES IN REVIEWS 73.
(1) A request for review under the Act shall be made in Form RB 1 set out in the Fourth Schedule to these Regulations.
Mode of ling requests.
(2) The request referred to in paragraph (1) shall (a) state the reasons for the complaint, including any alleged breach of the Act or these Regulations; (b) be accompanied by such statements as the applicant considers necessary in support of its request; (c) be made within fourteen days of (i) the occurrence of the breach complained of where the request is made before the making of an award; or (ii) the notication under sections 67 or 83 of Act; (d) be submitted in fteen bound copies and a soft copy, pages of which shall be consecutively numbered; (e) be accompanied by the fees set out in Part II of the Fourth Schedule which shall not be refundable.
(3) Every request for review shall be led with the Secretary of the Review Board upon payment of the requisite fees.
96 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] (4) The Secretary shall acknowledge ling of the request for review.
74.
(1) The Secretary shall immediately after the ling of the request Notication of ling under Regulation 73, serve a copy thereof on the procuring entity or Director of request.
General as the case may be.
(2) The copy to the procuring entity under paragraph (1) shall also contain a notication of the pending review and the suspension of the procurement proceedings of such procuring entity.
(3) Upon being served with a notication of a request, the procuring entity or the Director General shall within seven days or such lesser period as may be stated by the Secretary in a particular case, submit to the Secretary a written memorandum of response to the reasons for the request together with such documents as the Secretary may specify.
(4) The Secretary shall, within fourteen days of the ling of the request, notify all other parties to the review of the ling and such parties may, at their own expense, obtain copies of the request for review.
Notice of Hearing.
75.
(1) The Secretary shall give reasonable notice of the date xed for hearing to all parties to the review.
(2) The notice referred to in paragraph (1) shall be in the format shown in Form RB 2 set out in the Fourth Schedule.
Representation 76.
Any party to a request led under Regulation 73 shall, at the hearing by person of own thereof, be entitled to be represented by an advocate or any other person of choice.
his own choice.
Preliminary objection 77.
(1) A party notied under Regulation 74 may le a preliminary objection to the hearing of the request for review to the Secretary of the Review Board within ve days from the date of notication.
(2) The preliminary objection led under paragraph (1) shall set out the grounds upon which it is based on and shall be served on the applicant at least one day before the hearing.
(3) The applicant may le a reply to the preliminary objection before the time of the hearing of the request.
(4) The Review Board shall hear the preliminary objection and make a determination whether to uphold or dismiss the same and shall record the reasons for the determination.
(5) If the Review Board dismisses the preliminary objection, it shall soon thereafter proceed to hear the request for review as scheduled.
(6) The fees chargeable for ling a preliminary objection shall be as set out in the Part II of the Fourth Schedule.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 97 [Subsidiary] 78.
(1) The Secretary shall, at least three days before the date set for the Invitation to the hearing, invite the members of the Review Board to attend the hearing.
hearing.
(2) The invitation under paragraph (1) shall set out the time, date, and place where the hearing shall take place.
(3) The business of the Review Board shall be transacted between 8.00 a.m.
and 5.00 p.m.
on normal working days unless otherwise agreed to by the Secretary.
79.
Where any member of the Review Board has a direct or indirect Disclosure of interest in any matter before the Review Board, he or she shall declare his or her interest.
interest in the matter and shall not participate in the hearing or decision-making process of the Review Board in relation to that particular matter.
80.
If on the day set for the hearing of a review for which due notication Attendance at the has been given hearing.
(a) the applicant appears and the procuring entity fails to appear, the hearing of the request for review shall proceed in the absence of the procuring entity unless the Review Board deems it t to adjourn the hearing; (b) the procuring entity appears and the applicant does not appear, the request for review shall be dismissed unless the Board deems it t to adjourn the hearing; (c) if both parties fail to appear, the request for review shall be dismissed unless the Board deems it t to adjourn the hearing.
81.
At the hearing of the request for review, unless decided otherwise by Procedure at hearing.
the Review Board, the applicant shall be given the rst opportunity to present the case in support of the request and the procuring entity shall be given an opportunity to reply thereto.
82.
Where two or more requests for review are instituted arising from Consolidation of the same tender or procurement procedure the Review Board may consolidate requests.
the requests and hear them as if they were one request for review.
83.
(1) A request for review may be withdrawn at any time before or Withdrawal of during the hearing by notice in writing to the Secretary signed by the applicant requests for review.
and upon such notice being received the request for review shall be deemed to have been withdrawn.
(2) When a request for review is withdrawn, the Secretary shall forthwith inform the Review Board and all parties to the review of the withdrawal.
84.
(1) Hearing of review proceedings shall be open to all parties to the Hearing of request.
review.
98 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] (2) The Review Board may, at the hearing of the request exclude any person from the hearing whom it deems is unruly, interruptive or otherwise conducts himself in an unreasonable manner.
Experts.
85.
The Review Board may engage an expert to assist it in proceedings in which it feels it lacks the necessary expertise but the opinion of the expert shall not be binding on the Review Board.
Rules of evidence.
86.
The Review Board shall not be bound to observe the rules of evidence in the hearing of a request under these Regulations.
Proof of documents 87.
An order of the Review Board certied by both the Chairman and the Secretary to be a true copy thereof shall in any legal proceedings be prima facie evidence of the issuance of that order.
Communication to 88.
All communications to the Review Board relating to matters pending the Review Board.
before the Review Board shall be through the Secretary.
part vIIInvestIgatIon, deBarment and dIsposal Limitation of 89.
An investigator appointed pursuant to section 102 of the Act shall not, investigators in the course of investigation, advise a procuring entity on any matter relating powers.
to a procurement proceeding.
Other grounds for 90.
For the purposes of section 115 (2) of the Act, the DirectorGeneral, debarment.
with the approval of the Advisory Board, may debar a person from participating in procurement proceedings on the ground that that person has breached a code of ethics issued by the Authority pursuant to section 139 of the Act.
Debarment.
91.Where a person is debarred from participating in procurement proceedings under section 115 of the Act, the debarment extends to any rm in which the debarred person has a controlling interest.
Disposal committee.
92.
(1) A procuring entity shall, for the purposes of section 128 of the Act, establish a disposal committee comprising of at least ve members as follows: (a) the ofcer in charge of nance; (b) the head of the procurement unit who shall be the Secretary; (c) the head of the accounting department; and (d) two heads of end user departments, of whom one shall be the head of the end-user department disposing of the stores or equipment.
(2) The disposal committee shall select a chairperson from amongst its members.
(3) The disposal committee shall pursuant to section 128 (2) of the Act, rst meet within fourteen days of its appointment and subsequently at least once in every quarter.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 99 [Subsidiary] (4) The accounting ofcer shall, pursuant to section 129 (4) of the Act, give the disposal committee a written notice as to whether he accepts or rejects the recommendations of the disposal committee within fourteen days of receipt of the recommendations.
93.
(1) A procuring entity may, pursuant to section 131 of the Act, dispose Disposal to its unserviceable, obsolete or surplus stores and equipment to an employee of the employees.
public entity or a member of a board or committee of the public entity where (a) the time and cost required to dispose to any other person would be disproportionate to the value of the unserviceable, obsolete or surplus stores and equipment to be disposed; (b) the employee is in possession of the stores or equipment to be disposed and may be given the rst priority to purchase the same.
(2) Every disposal made by a procuring entity under paragraph (1) shall be reported by the accounting ofcer or head of the procuring entity to the Authority within fourteen days of the disposal.
94.
For the Purposes of section 39 (4) (c) of the Act, constituencies and Reservations.
local authorities shall be regions where citizen contractors who are located and L.N.
129/2009, operate in those regions shall be given exclusive preference when participating L.N.
141/2009.
in procurements using Constituency Development Funds and Local Authority Transfer Funds, except where it is established that local capacity is not available.
100 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] cycle ement erication of ocur eceipt of goods, Vr services orworksInspection and acceptance committee Inspection and acceptance committeeInspection and acceptance committee pr the in the Accounting Accounting committees esponsible for and Person r signing the ContractThe Accounting OfcerThe Head of the Procuring Entity or OfcerThe Ofcer ding ofcers esponsible ent Act differ ender committee ender committeeender committee Body rfor the awarthe contract TT T for seglnbi ment t dutie nsie Entityun PROCURING ENTITIESof o TRIX spour cAer oc Ac e egation h rson t the Accounting e or pr r SCHEDULE Segrunder section 26 (3)(c) of the PfinitiationThe Head of the Procuring oOfcerThe head of the procuring entity or the head of the user departmentThe head of the procuring entity or Ofcer FIRST use of THRESHOLD MATRIX FOR CLASS for the Services Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurementThere is no minimum level of expenditure under this methodMaximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement e allowed r expenditu THRESHOLDS MAof orks ement methodW Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurementThere is no minimum level of expenditure under this methodMaximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement ocur Maximum or minimum level a particular prGoodsMaximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurementThere is no minimum level of expenditure under this methodMaximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement ement Act) ocur PrMethod International Open tender (s 71 of the National Open tender(s 54 (2) of the Act) Public PrRev.
2010] ocurement and Disposal CAP.
412C 101 [Subsidiary] Inspection and acceptance committee Inspection and acceptance committee Inspection and acceptance committee Inspection and acceptance committee The Head of the Procuring Entity The Head of the Procuring entity or the Accounting Ofcer The Head of the Procuring entity or the Accounting Ofcer The Head of the Procuring entity or the Accounting Ofcer ender committee ender committee ender committee ender committee TTTT the Accounting The head of the procuring entity or the head of the user department The Head of the Procuring entity or Ofcer The Head of the Procuring entity or the Head of the User Department The Head of the Procuring entity or the Head of the User Department When using this method the minimum expenditure that requires advertising is Kshs 3,000,000 Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement The minimum level of expenditure is Kshs 20,000,000 below this threshold use open tender The Maximum level of expenditure shall be Kshs 20,000,000 above this threshold use open tender When using this method the minimum expenditure that requires advertising is Kshs 6,000,000 Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement The minimum level of expenditure is Kshs 20,000,000 below this threshold use open tender The Maximum level of expenditure shall be Kshs 20,000,000 above this threshold use open tender When using this method the minimum expenditure that requires advertising is Kshs 6,000,000 Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement The minimum level of expenditure is Kshs 20,000,000 below this threshold use open tender The Maximum level of expenditure shall be Kshs 20,000,000 above this threshold use open tender of ) a ) of b Restricted tender under s 73 (2 )( the Act Restricted tender under s 73 (2)( the Act 102 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] cycle ement erication of ocur eceipt of goods, Vr services or worksInspection and acceptance committeeInspection and acceptance committeeInspection and acceptance committeeInspection and acceptance committeeInspection and acceptance committee pr the in the Accounting the Accounting the Accounting the Accounting the Accounting committees esponsible for and Person r signing the ContractThe Head of the Procuring entity or OfcerThe Head of the Procuring entity or OfcerThe Head of the Procuring entity or OfcerThe Head of the Procuring entity or OfcerThe Head of the Procuring entity or Ofcer ding ofcers ent Actesponsible differ ender committee ender committee ender committee ender committee ender committee Body rfor the awarthe contract TT TTT for s dutie PROCURING ENTITIESof ement A esponsible ocur egation the Accounting TRIX FOR CLASS Segrunder section 26 (3)(c) of the Person rfor prinitiationHead of the User DepartmentThe Head of the Procuring entity or the Head of the User DepartmentHead of the User DepartmentHead of the User DepartmentThe Head of the Procuring entity or Ofcer Services The minimum level of expenditure is Kshs 1,000,000 below this threshold use request for quotationsThe Maximum level of expenditure shall be Kshs 20,000,000.
Above this threshold use open tendersThe minimum level of expenditure is Kshs 1,000,000 below this threshold use request for quotationsNo minimum or maximum expenditure under this method provided the conditions under this section are metNo minimum or maximum expenditure under this method provided the conditions under this section are met e allowed for the use of a THRESHOLDS MAof expenditurorks W The minimum level of expenditure is Kshs 2,000,000 below this threshold use request for quotationsThe Maximum level of expenditure shall be Kshs 20,000,000.
Above this threshold use open tenderThe minimum level of expenditure is Kshs 2,000,000 below this threshold use request for quotationsThis method is not applicable for procurement of goodsNo minimum or maximum expenditure under this method provided the conditions under this section are met ement method this ocur under Maximum or minimum level particular prGoodsThe minimum level of expenditure is Kshs 1,000,000 below this threshold use request for quotations The Maximum level of expenditure shall be Kshs 20,000,000.
Above this threshold use open tenderThe minimum level of expenditure is Kshs 1,000,000 below this threshold use request for quotations This method is not applicable for procurement of goodsNo minimum or maximum expenditure under this method provided the conditions section are met nt me e ur oc rP Method Restricted tender under s 73 (2)(c) of the Act Request for proposals(s 76(1) of the Act)Direct Procurement under s 74(2) and (3) of the Act Public PrRev.
2010] ocurement and Disposal CAP.
412C 103 [Subsidiary] Inspection and acceptance committee Inspection and acceptance committee Inspection and acceptance committee Stores ofcer Stores ofcer the Accounting Head of the User Department signs contract for procurement whose expenditure is below Kshs.
500,000 The Head of the Procuring entity or Ofcer Head of the User Department signs contract for procurement whose expenditure is below Kshs.
500,000 The Head of the Procurement Unit The Head of the Procurement Unit ender Procurement committee awards for procurement whose expenditure is below Kshs.
500,000 T committee Procurement committee awards for procurement whose expenditure is below Kshs.
500,000 User User Head of the User Department initiates procurement whose expenditure is below Kshs.
500,000 Head of the User Department Head of the User Department initiates procurement whose expenditure is below Kshs.
500,000 Head of the User Department Head of the User Department Maximum level of expenditure under this method is Kshs 1,000,000 Maximum level of expenditure under this method is Kshs 30,000 per procurement per item There is no minimum expenditure for the use of this method Maximum level of expenditure under this method is Kshs 2,000,000 Maximum level of expenditure under this method is Kshs 30,000 per procurement per item There is no minimum expenditure for the use of this method Maximum level of expenditure under this method is Kshs 1,000,000 Maximum level of expenditure under this method is Kshs 30,000 per procurement per item There is no minimum expenditure for the use of this method Act) Request for quotations (s 88 of the Low value procurement (s 90 of the Act) 104 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] cycle ement erication of ocur eceipt of goods, Vr services or worksInspection and acceptance committee Inspection and acceptance committeeInspection and acceptance committeeInspection and acceptance committee pr the in esponsible for committees Person r signing the ContractThe Accounting OfcerThe Head of the Procuring Entity or the Accounting OfcerThe Accounting OfcerThe Head of the Procuring Entity and ofcers Act ding the ent esponsible differ for ender committee ender committeeender committee ender committee Body rfor the awarcontract TTTT duties of ement egation esponsible for ocur Segrunder section 26 (3)(c) of the Person rprinitiationThe Head of the Procuring Entity or the Accounting OfcerThe head of the procuring entity or the head of the user departmentThe head of the procuring entity or the Accounting Ofcer The head of the procuring entity or the head of the user department a use of particular particular TRIX FOR CLASS B PROCURING ENTITIESfor the for the for the allowed Services Maximum level of expenditure shall be determined by the funds allocated in the budget procurementThere is no minimum level of expenditure under this methodMaximum level of expenditure shall be determined by the funds allocated in the budget procurementWhen using this method the minimum expenditure that requires advertising is Kshs 2,000,000 e expenditur THRESHOLDS MAof orks W Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurementThere is no minimum level of expenditure under this methodMaximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurementWhen using this method the minimum expenditure that requires advertising is Kshs 4,000,000 ement method ocur Maximum or minimum level particular prGoodsMaximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurementThere is no minimum level of expenditure under this methodMaximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurementWhen using this method the minimum expenditure that requires advertising is Kshs 4,000,000 ement Act) Act) ocur PrMethod International Open tender (s 71 of the National Open tender (s 54 (2) of the Public PrRev.
2010] ocurement and Disposal CAP.
412C 105 [Subsidiary] Inspection and acceptance committee Inspection and acceptance committee Inspection and acceptance committee Inspection and acceptance committee Inspection and acceptance committee The Head of the Procuring entity or the Accounting Ofcer The Head of the Procuring entity or the Accounting Ofcer The Head of the Procuring entity or the Accounting Ofcer The Head of the Procuring entity or the Accounting Ofcer The Head of the Procuring entity or the Accounting Ofcer ender ender ender ender ender T Committee T Committee T committee T committee T committee The Head of the procuring entity or the Accounting Ofcer The Head of the procuring entity or the Head of the User Department The Head of the Procuring entity or the Head of the User Department Head of the User Department The Head of the Procuring entity or the Head of the User Department Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement The minimum level of expenditure is Kshs.
5,000,000 below this threshold use open tender The Maximum level of expenditure shall be Kshs 4,000,000.
Above this threshold use open tender The minimum level of expenditure is Kshs 1,000,000.
Below this threshold use request for quotations The Maximum level of expenditure shall be Kshs 4,000,000.
Above this threshold use open tender Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement The minimum level of expenditure is Kshs.
5,000,000 below this threshold use open tender The Maximum level of expenditure shall be Kshs 4,000,000.
Above this threshold use open tender The minimum level of expenditure is Kshs 2,000,000.
Below this threshold use request for quotations The Maximum level of expenditure shall be Kshs 4,000,000.
Above this threshold use open tender 4,000,000.
Above 4,000,000.
Above Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement The minimum level of expenditure is Kshs.
5,000,000 above this threshold use open tender The Maximum level of expenditure shall be Kshs this threshold use open tender The minimum level of expenditure is Kshs 1,000,000.
Below this threshold use request for quotations The Maximum level of expenditure shall be Kshs this threshold use open tender ) of the ) ) of the abc Restricted tender under s.
73 (2)( Act Restricted tender under s.
73 (2)( Restricted tender under s.
73 (2)( Act 106 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] Inspection and acceptance committeeInspection and acceptance committeeInspection and acceptance committeeInspection and acceptance committeeInspection and acceptance committeeInspection and acceptance committee the Accounting the Accounting the Accounting the Accounting the Accounting The Head of the Procuring entity or OfcerThe Head of the Procuring entity or OfcerThe Head of the Procuring entity or OfcerThe Head of the Procuring entity or OfcerHead of the User Department signs contract for procurement whose expenditure is below Kshs.
500,000The Head of the Procuring entity or Ofcer ender ender ender ender ender T committee T committee T committee T committeeProcurement committee awards for procurement whose expenditure is below Kshs.
500,000Tcommittee Head of the User DepartmentThe Head of the Procuring entity or the Accounting OfcerThe Head of the Procuring entity or the Accounting OfcerHead of the User DepartmentHead of the User Department initiates procurement whose expenditure is below Kshs.
500,000The Head of the Procuring entity or the Accounting Ofcer The minimum level of expenditure is Kshs 1,000,000 below this threshold use request for quotationsMaximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurementThere is no minimum expenditure for the use of this method Maximum level of expenditure under this method is Kshs 1,000,000No minimum or maximum expenditure under this method provided the conditions under this section are met The minimum level of expenditure is Kshs 2,000,000 below this threshold use request for quotationsThis method is not applicable for worksMaximum level of expenditure under this method is Kshs 2,000,000No minimum or maximum expenditure under this method provided the conditions under this section are met The minimum level of expenditure is Kshs 1,000,000 below this threshold use request for quotations This method is not applicable for goods Maximum level of expenditure under this method is Kshs 1,000,000No minimum or maximum expenditure under this method provided the conditions under this section are met the Act) Request for proposals (s 76 (1) of Request for quotations (s 88 of the Act)Direct procurement under s.
74 (2) and (3) of the Act.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 107 [Subsidiary] Inspection and acceptance committee Stores ofcer Stores ofcer Head of the User Department signs contract for procurement whose expenditure is below Kshs.
500,000 The Head of the Procurement Unit The Head of the Procurement Unit Procurement committee awards for procurement whose expenditure is below Kshs.
500,000 User User Head of the User Department initiates procurement whose expenditure is below Kshs.
500,000 Head of the User Department Head of the User Department Maximum level of expenditure under this method is Kshs 10, 000 per procurement per item Maximum level of expenditure under this method is Kshs 10, 000 per procurement per item There is no minimum expenditure for the use of this method Maximum level of expenditure under this method is Kshs 10, 000 per procurement per item There is no minimum expenditure for the use of this method the Act) Low value procurement (s 90 of 108 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] ement ocur erication of eceipt of goods, Vr services or worksInspection and acceptance committee Inspection and acceptance committeeInspection and acceptance committeeInspection and acceptance committee esponsible for Act Person r signing the ContractThe Accounting OfcerThe Head of the Procuring Entity or the Accounting OfcerThe Accounting OfcerThe Head of the Procuring Entity ding the ent ofcers and committees in the pr esponsible ender committee ender committeeender committee ender committee Body rfor the awarcontract TTTT ement egation of duties for differesponsible for ocur Segrcycle under section 26 (3)(c) of the Person rprinitiationThe Head of the Procuring Entity or the Accounting OfcerThe head of the procuring entity or the head of the user departmentThe head of the procuring entity or the Accounting Ofcer The head of the procuring entity or the head of the user department particular particular TRIX FOR CLASS C PROCURING ENTITIESfor the for the e allowed for the use of a ServicesMaximum level of expenditure shall be determined by the funds allocated in the budget procurementThere is no minimum level of expenditure under this methodMaximum level of expenditure shall be determined by the funds allocated in the budget procurementWhen using this method the minimum expenditure that requires advertising is Kshs 1,000,000 THRESHOLDS MAorks W Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurementThere is no minimum level of expenditure under this methodMaximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurementWhen using this method the minimum expenditure that requires advertising is Kshs 3,000,000 ement method ocur Maximum or minimum level of expenditurparticular prGoodsMaximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurementThere is no minimum level of expenditure under this methodMaximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurementWhen using this method the minimum expenditure that requires advertising is Kshs 3,000,000 ement Act) Act) ocur PrMethod International Open tender (s 71 of the National Open tender (s 54 (2) of the Public PrRev.
2010] ocurement and Disposal CAP.
412C 109 [Subsidiary] Inspection and acceptance committee Inspection and acceptance committee Inspection and acceptance committee The Head of the Procuring entity or the Accounting Ofcer The Head of the Procuring entity or the Accounting Ofcer The Head of the Procuring entity or the Accounting Ofcer The Head of the Procuring entity or the Accounting Ofcer ender committee ender committee ender committee ender committee TTTT the Accounting The Head of the Procuring entity or Ofcer The Head of the Procuring entity or the Head of the User Department The Head of the Procuring entity or the Head of the User Department Head of the User Department Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement The minimum level of expenditure is Kshs 500,000.
Below this threshold request for quotations The Maximum level of expenditure shall be Kshs 3,000,000.
Above this threshold use open tender The minimum level of expenditure is Kshs 500,000.
Below this threshold use request for quotations Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement The minimum level of expenditure is Kshs 500,000.
Below this threshold request for quotations The Maximum level of expenditure shall be Kshs 3,000,000.
Above this threshold use open tender The minimum level of expenditure is Kshs 500,000.
Below this threshold use request for quotations Maximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurement The minimum level of expenditure is Kshs 500,000.
Below this threshold request for quotations The Maximum level of expenditure shall be Kshs 3,000,000.
Above this threshold use open tender The minimum level of expenditure is Kshs 500,000.
Below this threshold use request for quotations ) of ) of ab Restricted tender Under 73 (2)( the Act Restricted tender Under 73 (2)( the Act 110 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] ement ocur erication of eceipt of goods, Vr services or worksInspection and acceptance committeeInspection and acceptance committeeInspection and acceptance committeeInspection and acceptance committee esponsible for Act Person r signing the ContractThe Head of the Procuring entity or the Accounting OfcerThe Head of the Procuring entity or the Accounting OfcerThe Head of the Procuring entity or the Accounting OfcerThe Head of the Procuring entity or the Accounting Ofcer ding ent ofcers and committees in the pr esponsible ender committee ender committee ender committee ender committee Body rfor the awarthe contract TT TT ement egation of duties for differesponsible for ocur TRIX FOR CLASS C PROCURING ENTITIESSegrcycle under section 26 (3)(c) of the Person rprinitiationThe Head of the Procuring entity or the Head of the User DepartmentHead of the User DepartmentThe Head of the Procuring entity or the Accounting OfcerThe Head of the Procuring entity or the Accounting Ofcer e allowed for the use of a ServicesThe Maximum level of expenditure shall be Kshs 1,000,000 above this threshold use open tenderThe minimum level of expenditure is Kshs 500,000.
Below this threshold use request for quotationsMaximum level of expenditure shall be determined by the funds allocated in the budget for the particular procurementThere is no minimum expenditure for the use of this method THRESHOLDS MA orks ement methodW The Maximum level of expenditure shall be Kshs 3,000,000 above this threshold use open tenderThe minimum level of expenditure is Kshs 500,000.
Below this threshold use request for quotationsThis method is not applicable for works ocur Maximum or minimum level of expenditurparticular prGoodsThe Maximum level of expenditure shall be Kshs 3,000,000 above this threshold use open tenderThe minimum level of expenditure is Kshs 500,000.
Below this threshold use request for quotations This method is not applicable for goods ) of ement c ocur Pr Method Restricted tender under s 73 (2)(the Act Request for proposals (s.
76(1) of the Act) Public PrRev.
2010] ocurement and Disposal CAP.
412C 111 [Subsidiary] Inspection and acceptance committee Inspection and acceptance committee Inspection and acceptance committee Inspection and acceptance committee Stores ofcer Stores ofcer The Head of the Procuring entity or the Accounting Ofcer Head of the User Department signs contract for procurement whose expenditure is below Kshs.
100,000 The Head of the Procuring entity or the Accounting Ofcer Head of the User Department signs contract for procurement whose expenditure is below Kshs.
200,000 The Head of the Procurement Unit The Head of the Procurement Unit ender committee ender committee T Procurement committee awards for procurement whose expenditure is below Kshs.
100,000 T Procurement committee awards for procurement whose expenditure is below Kshs 200,000 User User the Accounting Head of the User Department Head of the User Department initiates procurement whose expenditure is below Kshs.
100,000 The Head of the Procuring entity or Ofcer Head of the User Department initiates procurement whose expenditure is below Kshs.
200,000 Head of the User Department Head of the User Department Maximum level of expenditure under this method is Kshs 500,000 No minimum or maximum expenditure under this method provided the conditions under this section are met Maximum level of expenditure under this method is Kshs 5,000 per procurement per item There is no minimum expenditure for the use of this method Maximum level of expenditure under this method is Kshs 500,000 No minimum or maximum expenditure under this method provided the conditions under this section are met Maximum level of expenditure under this method is Kshs 5,000 per procurement per item There is no minimum expenditure for the use of this method Maximum level of expenditure under this method is Kshs 500,000 No minimum or maximum expenditure under this method provided the conditions under this section are met Maximum level of expenditure under this method is Kshs 5,000 per procurement per item There is no minimum expenditure for the use of this method Act.
Act) the Act) Request for quotations (s 88 of Direct procurement under 74 (2) and (3) of the Low value procurement (s 90 of the 112 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] L.N.
141/2009.
SECOND SCHEDULE COMPOSITION OF TENDER COMMITTEES (s.
26 (4) 1.
Ministerial Tender Committee or Self Accounting Unit Tender Committee Membership Structure: An ofcer appointed in writing by the accounting Chairman ofcer.
Chief Finance Ofcer or, if there is no such ofcer, the Deputy Head of the Finance Unit appointed in writing by the Chairman accounting ofcer.
Five heads of departments appointed in writing by the Other accounting ofcer.
members The ofcer heading the Procurement Unit of the Secretary Ministry or the Self Accounting Unit.
2.
District Tender Committee Membership Structure: A head of department appointed in writing by the Chairman District Commissioner.
District Development Ofcer appointed in writing by Deputy the District Commissioner.
Chairman At least ve heads of departments appointed in Other writing by the District Commissioner from among the members following Ministries- (a) Agriculture; (b) Health; (c) Environment and Natural Resources; (d) Roads and Public Works; (e) Education; (f) Water and Irrigation and; (g) Livestock and Fisheries Department and; (h) The District Accountant.
The District Procurement Ofcer.
Secretary 3.
State Corporations Tender Committee Public PrRev.
2010] ocurement and Disposal CAP.
412C 113 [Subsidiary] Membership Structure: A head of department appointed in writing by the Chief Chairman Executive Ofcer.
The head of Finance Department appointed in writing Deputy Chairman by Chief Executive Ofcer.
At least ve departmental heads including the Company Other members Secretary or ofcers in equivalent positions appointed in writing by the Chief Executive Ofcer.
The ofcer heading the procurement unit of the Secretary corporation.
4.
Public Universities Tender Committee Membership Structure: A head of department appointed in writing by the Vice Chairman Chancellor.
The head of Finance Department appointed in writing Deputy Chairman by the Vice Chancellor.
The Head of Administration, Other members The Head of Academic Affairs, A Principal of a College appointed by the Vice Chancellor, Three Heads of a Faculty or School appointed in writing by the Vice Chancellor.
The ofcer heading the procurement unit of the Secretary University.
5.
Local Authorities Tender Committee Membership Structure: For City Councils (Nairobi, Mombasa, Kisumu) A Chairman head of department appointed in writing by the Clerk to the council.
For Urban, County and Town Councils the Clerk.
A head of department appointed in writing by the Deputy Chairman Clerk.
The Finance ofcer/Treasurer Members Seven heads of departments, appointed by the Clerk of the local authority.
The ofcer heading the procurement unit of the local Secretary authority.
6.
Colleges Tender Committee Membership Structure: Appointed in writing by the principal.
Chairman The ofcer in charge of nance appointed in writing Deputy Chairman by the Principal.
114 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] At least six heads of departments.
Other members Matron/Ofcer in charge of boarding facilities appointed in writing by the Principal.
The ofcer heading the procurement unit of the Secretary college.
7.
Schools Tender Committee Membership Structure: The Deputy Principal or Deputy Headmaster appointed Chairman in writing by the Principal/ Headmaster.
The ofcer in charge of nance or equivalent appointed Deputy Chairman by the Principal/ Headmaster.
At least six heads of departments or members of the Other members teaching staff including the Matron or ofcer-in-charge of the boarding facilities where applicable appointed by the Principal or Headmaster.
The ofcer heading the procurement unit.
Secretary 8.
Co-operative Societies Tender Committee Membership Structure: The Deputy Chief Executive Ofcer appointed in writing Chairman by the Chief Executive Ofcer.
The person in charge of nance appointed in writing by Deputy Chairman the Chief Executive Ofcer.
At least six heads of departments appointed by the Chief Other members Executive Ofcer.
The ofcer heading the procurement unit of the co- Secretary operative society.
9.
Voluntary Organizations/ Institutions Tender Committee Membership Structure: The Deputy Chief Executive appointed in writing by the Chairman Chief Executive Ofcer.
The person in charge of nance appointed in writing by Deputy Chairman the Chief Executive Ofcer.
At least ve members of the governing body or Other members committee of the Institution appointed by the Chief Executive Ofcer.
The ofcer heading the procurement unit of the Secretary organization.
10.
Central Bank of Kenya Tender Committee Membership Structure: Public PrRev.
2010] ocurement and Disposal CAP.
412C 115 [Subsidiary] The Deputy Governor appointed in writing by the Chairman Governor.
The person in charge of nance appointed in writing Deputy Chairman by the Governor.
At least six heads of department appointed in writing Other members by the Governor The ofcer heading the procurement unit Secretary 11.
Commissions (Permanent) Tender Committees Membership Structure: A person appointed in writing by the accounting Chairman ofcer.
The person in charge of nance appointed in writing by Deputy Chairman the accounting ofcer At least six heads of departments or equivalent positions Other members appointed in writing by the accounting ofcer.
The ofcer heading the procurement unit Secretary 12.
Semi Autonomous Government Agencies Membership Structure: A person appointed in writing by the accounting Chairman ofcer.
The person in charge of nance appointed in writing by Deputy Chairman the accounting ofcer.
At least six heads of departments or equivalent positions Other members appointed in writing by the accounting ofcer.
The ofcer heading the procurement unit.
Secretary 13.
Hospital Tender Committee Membership Structure: The ofcer appointed in writing by the Medical Chairman Superintendent.
The Nursing Ofcer in charge.
Deputy Chairman Hospital Administrator Other members Public Health Ofcer Accountant in charge Catering Ofcer in charge Maintenance Ofcer in charge Pharmacist in charge Medical Clinician The ofcer heading the procurement unit of the hospital.
116 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] 14.
Health Facility Tender Committee Membership Structure The ofcer in charge of the health centre/dispensary.
Chairman The Nursing Ofcer/Clinical Ofcer in charge as Deputy Chairman appropriate.
Public Health Technician Other members Laboratory Technician Two members of the facility management committee (other than the chairman) appointed in writing by the ofcer in charge of the facility The ofcer heading the procurement unit.
Secretary 15.
Special Security Tender Committee Membership Structure: The membership of each special security tender Membership committee may be determined by the Director General in consultation with the respective security organ.
L.N.
141/2009.
16.
Tender Committee for the Constituency Development Fund.
(a) Constituency Projects Tender Committee.
MEMBERSHIP STRUCTURE Member of the Constituency Development Fund Chairman Committee appointed in writing by the Constituency Development Fund Account Manager A person in charge of nance appointed in writing by Deputy Chairperson the Constituency Development Committee Account Manager Three members of the Constituency Development Fund Members Committee elected by the Constituency Development Fund Committee District Accountant of the District or Accountant appointed in writing by the District Accountant of the District.
District Development Ofcer of the District or Development Ofcer appointed by the District Development Ofcer of the District.
District Works Ofcer of the District or Works Ofcer appointed in writing by the District Works Ofcer of the District.
Respective Departmental Representative of the District for the subject procurement.
District Procurement Ofcer of the District or Secretary Procurement Ofcer appointed in writing by the District Procurement Ofcer of the District.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 117 [Subsidiary] (b) Constituency Development Fund Tender Committee.
MEMBERSHIP STRUCTURE Elected from among members of the Constituency Chairman Development Fund Tender Committee.
Treasurer of the Constituency Development Fund Deputy Chairman Committee.
Secretary to the Constituency Development Fund Members Committee.
Four members elected from the Constituency Development Fund Committee.
Procurement Ofcer appointed in writing by Secretary District Procurement Ofcer of the District.
4.
Legal Notice No.
129 of 2009, is revoked.
THIRD SCHEDULE STANDARD TENDER DOCUMENTS The standard tender documents include the following: 1.
Standard tender document for procurement of works (buildings and associated civil engineering works).
2.
Standard tender document for procurement of works (roads, water bridges, etc).
3.
Standard tender document for procurement of works (electrical and mechanical).
4.
Standard tender document for procurement of small works.
5.
Standard tender document for procurement of goods.
6.
Standard tender document request for proposals (selection of consultants).
7.
Standard tender document for procurement of general services.
8.
Request for quotation form.
9.
Procurement requisition form.
10.
Local procurement order.
11.
Local service order.
12.
Order amendment form.
118 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] 13.
Tender register.
14.
Register of samples.
15.
Condential business questionnaire.
16.
Application for adjudication of tenders/quotation.
17.
Board of survey form.
18.
Disposal certicate.
19.
Destruction certicate.
20.
Contract agreement for goods.
21.
Counter requisition and issue voucher.
22.
Counter receipt voucher.
23.
Bin Card, stock verication, issue/receipt.
24.
Contract agreement for goods (term contracts).
25.
Contract agreement for consultancy services.
26.
Contract agreement for consultancy services (time based).
27.
Contract agreement for general services.
28.
Contract agreement for insurance services.
29.
Standard tender document for disposal.
30.
Standard tender document for concessioning.
31.
Standard tender document for insurance services.
32.
Standard tender document for information technology.
33.
Standard tender document for maintenance services.
34.
Standard tender document for design and build (turnkey).
35.
Standard tender document for supply and Installation.
36.
Standard tender document for specialized goods and services.
37.
Standard tender documents for pre-qualication.
38.
Standard tender documents for preference and reservations.
39.
Standard tender documents for management contracts.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 119 FOURTH SCHEDULE (r.
73 (1) [Subsidiary] PART I FORMS FOR REVIEWS FORM RB 1 REPUBLIC OF KENYA PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD APPLICATION NO.
OF .20.
BETWEEN.
APPLICANT AND.
RESPONDENT (Procuring Entity or Director General) Request for review of the decision of the (Name of the Procuring Entity or Director General) of dated the.
day of.
20.
in the matter of Tender No.
.of.
20.
REQUEST FOR REVIEW I/We , the above named Applicant(s), of address: Physical address.
Fax NoTel.
No.
Email , hereby request the Public Procurement Administrative Review Board to review the whole/part of the above mentioned decision on the following grounds, namely: 1.
2.
By this memorandum, the Applicant requests the Board for an order orders that: 1.
2.
SIGNED.
(Applicant) Dated on .day of ./.20.
FOR OFFICIAL USE ONLY Lodged with the Secretary Public Procurement Administrative Review Board on day of.
20.
SIGNED Board Secretary.
120 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] (r.
73 (1) FORM RB 2 REPUBLIC OF KENYA PUBLIC PROCUREMENT ADMINISTRATIVE REVIEW BOARD REQUEST NO.
OF.
20.
BETWEEN APPLICANT AND.
RESPONDENT (Procuring Entity or Director General.) TO: 1).
(Procuring Entity or Director General) 2).
(Applicant) HEARING NOTICE Whereas.
the Applicant herein has instituted a complaint against (Procuring Entity or Director General) on.
(Date) particulars of which were set out in a Request For Review served upon you on You are hereby required to appear on the day of.
20.
at.
am/pm when the complaint against you will be heard by this Board sitting at.
If you fail to appear, the Applicant may proceed with the complaint and determination by order of the Board may be made in your absence.
Dated on.
day of.
20.
Board Secretary.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 121 PART II [Subsidiary] FEES FOR REVIEWS 1.
Administrative fee KSh.
2,000 2.
Upon ling a request for review, the fees payable shall be as follows Amount of Tender Fees A Tenders of Ascertainable Value (a) Does not exceed Kshs 2,000,000 1% subject to a minimum of Kshs.
10,000 (b) Exceeds Kshs.
2,000,000 but not over The fees for Kshs.
2,000,000 plus an Kshs.
50,000,000 additional fee of 0.1% on the amount above Kshs.
2,000,000 (c) Exceeds Kshs.
50,000,000 The fees for Kshs.
50,000,000 plus an additional fee of 0.025% on the amount above Kshs.50,000,000 subject to a maximum fee of Kshs 80,000 B Tenders of Unascertainable Value (d) Pre-qualication Simple tenders Kshs.
10,000 Medium tenders Kshs.
20,000 Complex tenders Kshs.
40,000 (e) Unquantied Tenders Simple tenders Kshs.
10,000 Medium tenders Kshs.
20,000 Complex tenders Kshs.
40,000 (f) Any other Tenders Fees as determined by the Secretary subject to a minimum of Kshs.
10,000 and a maximum of Kshs.
20,000 3.
Upon grant of an adjournment to a Kshs.
5,000 party by the Board 4.
Fee for ling preliminary objection Kshs.5,000 5.
Fee to accompany the review of Kshs.20,000 Director Generals order (s.106 (3)) 6.
Filing fees on each request for a review Kshs.20,000 on debarment order (s.
117 (3)) 7.
The Secretary may demand additional fee if the fee paid at the time of ling is less than that ascertained to be chargeable.
122 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] L.N.38/2009.
THE PUBLIC PROCUREMENT AND DISPOSAL (PUBLIC PRIVATE PARTNERSHIPS) REGULATIONS, 2009 Citation.
1.
These Regulations may be cited as the Public Procurement and Disposal (Public Private Partnerships), Regulations 2009.
Interpretation.
2.
In these Regulations, unless the context otherwise requires No.
3 of 2005.
Act means the Public Procurement and Disposal Act; affordability means that the nancial commitments to be incurred by a procuring entity in terms of public private partnership agreement can be met by funds- (a) designated within the procurement entitys existing budget for its function for which the agreement relates; and (b) destined for the procurement entity in accordance with its relevant future budgetary allocation.
private party means a party to a public private partnership agreement, other than- (a) a procuring entity to which the Act applies; (b)an enterprise or other entity controlled by one or more municipalities; or (c) the accounting ofcer, accounting authority or other person or body acting on behalf of an institution, municipality, enterprise or entity referred to in paragraph (a) or (b).
public private partnership means an agreement between a procuring entity and a private party under which (a) the private party undertakes to perform a public function or provide a service on behalf of the procuring entity; (b) the private party receives a benet for performing the function either by way of (i) compensation from a public fund; (ii) charges or fees collected by the private party from users or customers of a service provided to them; or (iii) combination of such compensation and such charges or fees.
(c) the private party is generally liable for risks arising from the performance depending on the terms of the agreement.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 123 [Subsidiary] public private partnership agreement means a written contract recording the terms of a public private partnership concluded between a procuring entity and a private party; procuring entitys property includes all movable and immovable property belonging to the procuring entity as well as intellectual property rights vested in the procuring entity; transaction advisor means a person or persons appointed in writing by the procurement entity who has the appropriate skills and experience to assist and advise the procuring entity in connection with public private partnership, including the preparation and conclusion of a public private partnership agreement; value for money means that the provision of the procuring entity function by a private party in terms of the public-private partnership agreement results in a net benet to the procuring entity, dened in terms of cost, price, quality, quantity, timeliness, or risk transfer, or a combination thereof; public private partnership nodes means units established by procuring entity under regulation 23 (1); and Steering Committee means Public Private Partnership Steering Committee established under regulation 4.
3.
(1) Subject to provisions of these Regulations and the Act, a Entering into public procuring entity may enter into any of the following public private partnership private partnership.
arrangements (a) management contract whereby a procuring entity awards a private party the responsibility to manage and perform a specic service, within well-dened specications for a specied period of time not to exceed ve years and the procuring entity retains ownership and control of all facilities and capital assets and properties; (b) a lease whereby the private party pays the procurement entity rent and manages, operates and maintains the facility and receives fees or charges from consumers for the provision of the service for specied time not exceeding fteen years; (c) a concession for a period not exceeding thirty years whereby the private party maintains, rehabilitates, upgrades and enhances the facility in question; (d) a Build-Own-Operate-Transfer scheme whereby a private party designs, constructs, nances, owns, operates and maintains the given infrastructure facility for a specied time period not exceeding thirty years, or such longer period as may be agreed, after which the facility is transferred to the procuring entity; (e) a Build-Own-Operate scheme whereby a private party designs, 124 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] nances, constructs, owns, operates and maintains the infrastructure facility and provides services for an agreed time period; or (f) any other scheme as may be prescribed by the Public Private Partnership Steering Committee and approved by the Cabinet.
(2) Except as provided for under these Regulations all public private partnership projects shall be procured through a competitive bidding process as provided for under these Regulations or any other written relevant law.
(3) The preparation and approval process of all public private partnership agreements shall be as set out in the First Schedule.
(4) Where the procuring entity is not the Government, only the accounting ofcer or the accounting authority of such procuring entity may enter into a public private partnership agreement under paragraph (1) on behalf of that procuring entity.
(5) The procurement entity may where necessary consult the Minister with regard to the accounting for Public Private Partnership activities and taxation aspects relevant to the project prior to issue of the invitation for bids.
Public Private 4.
(1) There is established Public Private Partnership Steering Committee Partnership Steering which shall consist of Committee.
(a) the Permanent Secretary to the Treasury-Chairman; (b) the Attorney-General or his representative; (c) the Permanent Secretary, Ofce of the Prime Minister; (d) Permanent Secretary for the Ministry responsible for Planning, National Development and Vision 2030; (e) other three members not being public servants appointed by the Minister from a list of nominees from private sector bodies approved by the Cabinet.
(2) The Director, Public Private Partnership shall be the secretary to the Steering Committee Functions of Steering 5.
The Steering Committee shall Committee.
(a) spearhead the public private partnership process and promote understanding and awareness of Public Private Partnership among key stakeholder groups; (b) review challenges constraining participation or realization of full benets expected from Public Private Partnership and formulate time bound solutions to address the challenges and to create an enabling environment; Public PrRev.
2010] ocurement and Disposal CAP.
412C 125 (c) establish public private partnership standards, guidelines and [Subsidiary] procedures including development of standard procedures for conceptualization, identication, prioritization, development, assessment of Public Private Partnership projects and development of standardized bid documents; (d) review direct and indirect liabilities and assess contingent liability risk exposure of the Government and advise on the acceptable levels of direct and indirect liabilities; (e) ensure that all proposed public private partnership projects are consistent with the countrys national priorities outlined in various policy documents; (f) coordinate with the Public Procurement Oversight Authority established under the Act to ensure that all tender phase activities of Public Private Partnership projects conform to procurement best practices; (g) approve public private partnership projects submitted to the Committee in accordance with the provisions of these Regulations.
6.
(1) The Steering Committee shall regulate its meetings and its own Meetings.
procedures and may co-opt members as it shall deem appropriate.
(2) The quorum of the Steering Committee meeting shall be two thirds of the members including the Chairman.
(3) The Steering Committee shall invite accounting ofcers responsible for the project under discussion to attend its meetings.
(4) The Steering Committee shall meet once every month or at such regular intervals as it may deem necessary.
7.
There is established a Public Private Partnership Secretariat to be Public Private within the Ministry of Finance and headed by the Public Private Partnership Partnership Secretary which shall support and act as Secretariat to the Steering Committee.
Secretariat.
8.
The Public Private Partnership Secretariat shall Functions of (a) serve as a resource centre for best public private partnership Secretariat.
practice in Kenya including supporting capacity building in public partnership projects planning, co-ordination and contract monitoring and working as the focal reference point for public private partnership advice; (b) carry out any other functions as the Steering Committee may determine.
9.
The Steering Committee shall determine the personnel of the Public Personnel of the Private Partnership Secretariat in consultation with the Ministry of State for Public Private Public Affairs.
Partnership Secretariat.
126 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] Price of service or 10.
(1) The price setting for public private partnership projects shall, to the goods.
degree possible, be based upon competition but where effective competition is not possible, prices shall be based upon fully allocated cost of service or goods determined in accordance with international best practice.
(2) Notwithstanding the provision of paragraph (1), the price for the public private partnership projects shall be affordable, and provide value for money for the procuring entities while allowing the private party to maintain its nancial integrity, attract capital, operate efciently and compensate investors for risks assumed.
Government 11.
(1) Where it is necessary to support private sector investments and investment reduce premiums factored for political risks, the Government where it is not protection.
a signatory to the agreement, may issue binding letters of comfort to private sector investors and their lenders to acknowledge the investment by the private sector, assure investors that they will be provided with reasonable assistance with acquiring authorizations and guarantee against risks arising from Government actions or omissions.
(2) The Steering Committee may recommend to the Minister the principles, procedures and standards for making decisions on investment protection and letters of comfort on public private partnership projects based on Cost Benet Analysis, national priorities and available Government resources.
Duration of the 12.
(1) In determining the duration of the public private partnership the public private procuring entity shall take into account the provisions of any relevant law, partnership.
reasonable period required to recoup the investment, and exibility that may be required to adapt to changes and new technologies.
(2) The duration shall ensure that the investment is economically and nancially viable for the public private partnership, and the private party to meet service delivery standards and investment levels that require to be met and maintained throughout the duration of the partnership, while at the same time, being affordable and providing value for money to the procuring entity.
Conceptualization, 13.
(1) When conceptualizing, identifying and prioritizing potential identication and Public Private Partnership projects, procuring entities shall consider the prioritization of Public Private strategic and operational benets of a public private partnership, compared to Partnerships.
the continuing performance of the function by the procuring entity.
(2) Planning for public private partnerships shall form an integral part of the national development planning whose requirements shall be presented by the Steering Committee.
Performance 14.
A procuring entity pursuing public private partnership projects shall indicators.
ensure (a) that they identify quantiable measurable outputs that serve as the basis for projects monitoring and evaluation and serve as the basis for remunerating the private party; Public PrRev.
2010] ocurement and Disposal CAP.
412C 127 (b) that contract management focuses upon monitoring the delivery [Subsidiary] and quality of service or goods rather than managing the execution of works or the delivery of goods; (c) that specic levels of maintenance and quality of service or goods is specied for the life of the Public Private Partnership project and agreed with the private party; and (d) that payments are linked to specic indicators.
15.
Procuring entity shall not restrict innovation with regard to the Procuring entity not means that may include nancing mechanisms, application of technologies to restrict innovation.
and management approaches by which a potential private partner or a bidder may use to deliver the procured services or goods subject to the proposal being least cost and meeting the specied minimum technical requirements and delivery period.
16.
(1) As soon as the procurement entity identies a project that may Invitation for bids.
be concluded as a public private partnership, the procurement entity shall, in writing, invite for prequalication or proposals from potential bidders through at least two newspapers with a national circulation and the same shall be posted on its website, if any.
(2) In inviting bidding for pre-qualications or proposals under paragraph (1), the procuring entity shall state the eligibility to bid for award of a public private partnership contract provided for under regulation 17 and may require bidders to provide signed statements or documentary evidence to certify their eligibility.
(3) Where a bidder is a foreigner the procurement entity shall permit the submission of equivalent documents from the relevant authorities in the bidders country of origin and submission of statements certifying that equivalent documentation is not issued in the bidders country of origin.
(4) All bidders shall be responsible for providing certied translations of all submitted documentation whose originals are not in English.
17.
A person shall be qualied to bid for a public private partnership contract if Qualication criteria.
(a) the person or the consortium members possess or have contracted persons with technical capability and necessary experience in development and operation of the facility or equipment and have access to necessary nancial resources; (b) the person has the legal capacity to enter into a contract for the procurement; (c) the person is not insolvent, in receivership, bankrupt or in the process of being wound up and is not the subject of legal proceedings relating to the foregoing; 128 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] (d) the procuring entity is not precluded from entering into the contract with the person under the Act; (e) the person is not debarred from participating in procurement proceedings under the Act; and (f) the person satises other criteria that may be set by the Steering Committee through issued circulars.
Disqualication of a 18.
The procuring entity may only disqualify a person from bidding for bidder.
a public private partnership contract where the person submits false, inaccurate or incomplete information about his qualications, or if the person colludes, connives or is involved in fraudulent, corrupt and other dishonest practices or contravenes the provisions of the Act or any relevant provisions of a written law in order to get unfair advantage in the award of the public private partnership contract.
Procurement 19.
The procurement procedure shall procedure.
(a) be in accordance with a system that is fair, equitable, transparent, competitive and cost-effective; and (b) be for the period of not less than three months and not more than four months, unless otherwise approved by the Public Private Partnership Steering Committee, for preparation and submission of proposals from potential bidders.
Evaluation of bid 20.
(1) Evaluation of public private partnership bids shall be carried out proposals.
by the procurement entity in accordance only with the procedures and criteria set out in the tender documents including any margin of preference provided in the tender documents in accordance with section 39 of the Act and regulation 28 (2) of the Public Procurement and Disposal Regulations.
(2) The successful candidate shall be the bidder with the best ranked proposal based on evaluation carried out in accordance with the criteria set out in tender documents and relevant legislation provided for under paragraph (1).
(3) The evaluation shall be carried out within such period as is indicated in the tender documents, or if not indicated, a reasonable time as may be approved by the Steering Committee.
(4) After the evaluation of the bids, but prior to appointing the preferred bidder, the procuring entity shall prepare an evaluation report containing a summary of the evaluation criteria and how it was satised in the preferred bid in comparison to other bidders including any other relevant required information.
(5) The Steering Committee shall not be involved in the process of evaluating public private partnership bids in terms of this regulation.
Minimum contractual 21.
Each public partnership contract shall clearly provide minimum obligations.
contractual provisions including but not limited to (a) duration of the contract; Public PrRev.
2010] ocurement and Disposal CAP.
412C 129 [Subsidiary] (b) description of services, goods or works and where the facility has to be constructed, time periods within which key milestone activities should have been completed; (c) payment arrangement and basis in relation to service or goods and output levels; (d) relationship between the procuring entity and the service provider and a clear allocation of risks and responsibilities between the procuring entity and service provider; (e) assessment, allocation and mitigation of risks set out in the Second Schedule; (f) a set of monitoring and evaluation program based on quantied and measurable outputs; (g) a dened method of dispute resolution; (h) protection where appropriate of each partys intellectual property; (i) specic events that constitute a default such as the failure of a public private partnership service provider to attain the contractually prescribed quality standards by the specied date; (j) the remedies that may be exercised in the event of a default, such as penalties or specied liquidated damages to compensate either party for imputed costs or damages suffered as a result of default; and (k) relevant governing law which in this case shall be the Kenyan law.
22.
(1) After the procurement procedure has been concluded but before Contracting public the procuring entity concludes a public private partnership agreement the private partnership procurement entity shall obtain approval from the Steering Committee agreements.
(a) that the public private partnership agreement meets the requirements of affordability, value for money and substantial technical, operational and nancial risk transfers; (b) for a management plan that explains the capacity of the procuring entity, and its proposed mechanisms and procedures, to effectively implement, manage, enforce, monitor and report on the public private partnership; and (c) that a satisfactory due diligence including a due legal diligence has been completed in respect of the procuring entity and the proposed private party in relation to matters of their respective competence and capacity to enter into the public private partnership agreement.
(2) If the Steering Committee determines that a procuring entity lacks the necessary expertise to proceed with the procurement of a public private 130 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] partnership agreement, it shall require that the procuring entity appoints a transaction advisor for this purpose.
Management of 23.
(1) The procuring entity that is a party to a public private partnership Public Private arrangement shall be responsible for ensuring that the Public Private Partnership Partnership arrangement is properly implemented by establishing public private partnership agreements.
nodes to be headed by accounting ofcers or a senior ofcers who shall be appointed within the Ministry to (a) measure the output of the public private partnership agreement; (b) monitor the implementation of the public private partnership agreement and the performances under the public private partnership agreement; (c) liaise with the private sector; (d) resolve disputes and differences within the private sector; (e) generally oversee the day-to-day management of the public private partnership agreement; and (f) report on the public private partnership agreement in the procurement entitys annual report; (g) carry out any other function assigned to it by procuring entity.
(2) A public private partnership agreement involving the performance of an institutional function does not divest the procuring entity of the responsibility for ensuring that its function is effectively and efciently performed in the public interest or on behalf of public service.
(3) A public private partnership agreement involving the use of a public entitys property by the private party does not divest the procuring entity of the responsibility for ensuring that the procuring entitys property is appropriately protected against forfeiture, theft, loss, wastage and misuse.
Publishing of 24.
(1) Following the signing of the public private partnership agreement information after the procuring entity shall publish in at least one widely circulated national conclusion of Public publication and posted on the website, if any, of the results of the public private Private Partnership partnership tender containing the following information agreement.
(a) name of the project; (b) winning bidder; (c) public private partnership price; and (d) duration of the public private partnership.
(2) The Steering Committee may prescribe a template to be used by the procuring entity when publishing the information under paragraph (1).
Public PrRev.
2010] ocurement and Disposal CAP.
412C 131 [Subsidiary] 25.
(1) The prior written approval of the Steering Committee shall be Amendment and required for any material amendments to a public private partnership agreement variation of public including any material variations to the outputs therein, or any waivers private partnership contemplated or provided for in the public private partnership agreement.
agreements.
(2) The Steering Committee shall approve a material amendment only if it is satised that the Public Private Partnership agreement, ifso amended, shall continue to provide (a) value for money; (b) affordability; (c) substantial technical, operational and nancial risk transfer to the private party; and (d) necessary service to the public.
26.
(1) In addition to reporting requirements under any applicable law, Financial reporting.
the private party shall, within six months after the end of nancial year, submit annual nancial statements duly audited by a reputable auditor and any other information as it may reasonably be required to the procuring entity.
(2) The Minister may prescribe nancial standards for disclosure for the public private partnerships by procuring entity.
27.
All public private partnership programmes shall be audited annually Auditing.
in accordance with applicable law and standards.
28.
The private party shall grant access to public private partnership Inspection of public premises, sites and storages as may be requested by the procuring entity for private partnership inspection in accordance with the public private partnership agreement.
premises, etc.
29.
(1) The Steering Committee shall issue standard contracts for public Contract private partnerships and guidelines to standardize practice across the public sector.
standardization.
(2) Standard documents may be prepared for each sector activity such as, but not limited to, building and public works, medical services delivery, education services delivery, telecommunications and energy.
30.
(1) Procurement of unsolicited bids shall be authorized where Unsolicited bids.
(a) innovative and related intellectual property associated with the proposed projects design and engineering costs incurred in developing the design has been considered and recognized; and (b) a feasibility study has been carried out and there is presently little interest in the private sector in the proposed project.
(2) The Minister shall issue detailed guidelines on the unsolicited bids under paragraph (1).
132 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] FIRST SCHEDULE (r.
3 (3)) PUBLIC PRIVATE PARTNERSHIP PREPARATION AND APPROVAL STEPS 1.
(a) Project conceptualization, identication, prioritization, and pre- feasibility analysis by procuring entity promoting or sponsoring the project.
Prior to preparation of the concept paper, the public sector agency is expected to conduct a systematic screening on all of their planned, priority infrastructure projects to determine which ones might better be delivered through public private partnership arrangements.
Output: List of projects to be implemented through public private partner- ship framework and preliminary project concept and advise to the Steering Committee whether the procuring entity has required expertise to proceed with the public private partnership.
(b) Approval of the preliminary concept by the Steering Committee; registration of public private partnership by the Steering Committee, advise by the Steering Committee to the procuring entity to procure advisory services if the procuring entity does not have the necessary expertise.
Output: Approved and registered list of public private partnerships and instructions to hire transaction advisors if this is considered necessary.
2.
Carrying out of feasibility study.
The activities should include feasibility analysis and proposed risk allocation structure.
This should clearly outline the projects required output levels of services or goods, demand analysis, technical feasibility analysis, nancial feasibility analysis, economic feasibility analysis, as well as preliminary environmental, legal, and institutional analysis.
The procuring entity should also identify and analyse all material risks to public private partnership, and especially the important proposed risk allocation structure for the project as a public private partnership.
It should also clearly outline the public private partnership concept including specic functions to be carried out by the private party and the procuring entity and any assets belonging to the procuring entity to be transferred to public private partnership.
Output: Clearly dened project concept, preliminary environmental and social impact analysis.
3.
Submission by the procuring entity of the project concept and feasibility study to the Steering Committee and evaluation by the Secretariat.
Output: Well dened project proposals.
4.
Consideration of the project concept and feasibility study including the risk sharing arrangements by the Steering Committee.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 133 Output: Approval of the project concept including the risk sharing [Subsidiary] arrangements for public private partnership projects with an estimated value not exceeding US$10 million and recommenda- tions by the Public Private Partnership Steering Committee to the Minister for Finance and sector Minister for public private partnership project with estimated value exceeding US$10 mil- lion.
If project concept is not accepted, procuring entity will be given further guidance on any other work required to be done.
5.
Submission to the Cabinet of Joint Cabinet Memorandum by the Minister responsible for the sector and the Minister for Finance for projects of US$10 million and above.
Output: Signed Cabinet Memorandum and Cabinet approval or guidance.
6.
Preparation of bid documents including the Request for pre qualications (RfQ), the Request for proposals (RfP) and the proposed Public Private Partnership contract.
Output: Bid documents.
7.
(a) Approval by the Steering Committee of the bid documents.
Upon approval, authority will be granted to advertise for RfQ and or RfPs as necessary.
Prequalied rms will be allowed to make comments on the RfPs.
If there are any material changes to the RfPs and the proposed contract at this stage, further clearance will be required from the Secretariat.
If the changes result in a material departure in the project concept and transaction structure from what had been approved by the Cabinet, Cabinet clearance will also be required.
Output: The Steering Committee approval for the bid documents; Short- listed bidders; nal bid documents.
(b) Request for Proposals, receipt of bids, evaluation of bids and submission of bid evaluation report to the Steering Committee for approval.
Output: The Steering Committee approval for the procuring entity to negotiate contract with the winning bidder (including approval of business plan).
8.
Contract negotiation by the procuring entity.
Output: Negotiated contract.
9.
Review of negotiated contract and granting of approval by the Steering Committee for the procuring entity to sign the approved public private partnership contract.
Output: Approved contract.
134 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] SECOND SCHEDULE (r.
21 (e)) MAJOR PUBLIC PRIVATE PARTNERSHIP RISKS (a) Design risk: The private party shall be responsible for designing the goods or services to meet a specied level.
Contractually, this typically means that the private party accepts the design risk and must pay all redesign costs if the facility which does not meet the required performance standards.
(b) Construction risk: The private party shall be required to construct a facility according to performance specications and a time schedule.
In the contract, this is often dealt with by letting the private party bear all costs of meeting specications and schedule requirements.
(c) Site Risk: The risk relates to underlying site conditions and soil contamination and results in clean up costs, addition construction costs or frustration of contract.
The risk is borne by the procurement entity if it has provided the site or by the private party where such party has been responsible for obtaining the site.
(d) Operating risk: The private party is allowed full control over operating costs, including stafng numbers and levels.
Contractually, the private party shall be made responsible for all operating costs and shall be expected to absorb all increases except where such increased costs arise from discriminatory change in law or increase in tariffs and related taxes in regulated industries.
The service provider shall bear all costs of meeting specications and schedule requirements.
(e) Demand risk: The private partys revenues depend on the willingness and ability of users to purchase its services or goods.
Contractually, the private party shall be expected to identify and satisfy the demand for the services or goods.
In situations where the Public Private Partnership does not sell directly to end users, the demand risk shall vest in the procuring entity.
(f) Tariffs risk: In regulated industries, payments for the goods or tariffs for the service are often set by the Government or the sector regulator.
Contractually, the private party shall accept that tariffs may not be adjusted automatically and hence need to agree on measures to deal with situations such as tax increases that may affect the projects nancial viability adversely.
(g) Collection risk: In some public private partnerships, the private party collects tariff revenues without any collection rate guarantee from the Government, while in others, the private party sells to the procuring entity.
In the rst scenario, contractually, the private party shall bear all the risks for collecting revenues from users of the goods or services, while the collection risk in the other scenario shall rest with the procuring entity offtaker.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 135 [Subsidiary] (h) Credit risk: The private party shall solely be responsible for paying its debt and the Government shall make no debt investment.
The private party shall be responsible for its debt and debt service.
(i) Force Majeure Risk: Force majeure refers to events or circumstances that affects either party to the public private partnership and are not within the reasonable control (directly or indirectly) of the party affected, and which cannot be prevented, avoided or removed by such party acting in accordance with prudent operating practice such as acts of war, acts of God, epidemics, explosions, national wide labour disputes like strikes or lockouts and change in.
Generally, if a party is prevented from or delayed in performing an obligation by reason of force majeure the affected party shall be relieved from the consequences of its failure to perform that obligation; and shall be allowed time extension.
(j) Political Risk including discriminatory change in law: Political risks include events or circumstances arising from an action or inaction of the government or any Governmental authority exercising authority over a party which adversely affect the public private partnership such as blockade, embargo, riots, discriminatory change in law, expropriation and non renewal or revocation of project licenses without default on the part of the private party.
The political risks shall be best placed with the Government.
The Public ProcuremenT and disPosal L.N.
58/2011 (PreFerence and reserVaTions) reGulaTions, 2011 (s.
140) part I prelImInary 1.
These Regulations may be cited as the Public Procurement and Citation.
Disposal (Preference and Reservations) Regulations, 2011.
2.
In these Regulations, unless the context otherwise requires Interpretation.
Constituency Development Fund shall have the meaning assigned to No.
10 of 2003.
it under the Development Fund Act, 2003; disadvantaged group means persons perceived to be denied, by mainstream society access to resources and tools which are useful for their survival in a way that disadvantages them, or individuals who have been subjected to prejudice or cultural bias because of their identities as members of groups without regard to their individual qualities, and includes enterprises owned by women, the youth and persons with disabilities; disability shall have the meaning assigned to it under the Persons with No.
14 of 2003, Disabilities Act, 2003; 136 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] No.
8 of 1998.
Local Authorities Transfer Fund shall have the meaning assigned to it under the Local Authorities 1998 Transfer Fund Act, 1998; local preference means the right or opportunity to select a person from an identied target group that is considered more desirable than another in a constituency, local authority or county; micro enterprises means a business undertaking with an initial (a) staff establishment of not more than ten employees, and (b) annual turnover or investment not exceeding Kenya Shillings ve hundred thousand; preference means the right or opportunity to select a person from an identied target group which is considered more desirable than another; region means a location designated by the Minister within which dened tenderers enjoy certain preferences and reservations; reservations means exclusive preference to procure goods, works and services set aside to a dened target group within a specied threshold or region; small enterprises means a business undertaking with an initial (a) staff establishment of not less than eleven and not more than fty employees, and (b) annual turnover or investment not exceeding ve million Kenya Shillings; target group means designated tenderers identied /by the Minister to benet from the preference and reservations schemes; youth means persons who have attained the age of eighteen years but have not attained the age of thirty-ve years.
Application.
3.
These Regulations shall apply to procurements by public entities when soliciting tenders from the following target groups (a) small enterprises; (b) micro enterprises; (c) disadvantaged groups; (d) citizen contractors; (e) local contractors; or (f) citizen contractors in joint-venture or subcontracting arrangements with foreign suppliers.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 137 4.
The purpose of these Regulations is to promote local, national and [Subsidiary] Purpose of the regional industry and support socioeconomic development by dening Regulations.
(a) the target group and eligibility requirements for benetting from the preference and reservations schemes; (b) the percentage margin of the preference, where applicable; (c) the goods, works and services set aside or reserved for specied target groups; (d) the regions within which to apply the scheme, and (e) the means of measuring its effectiveness in achieving the objectives.
part IIqualIfICatIon of target groups Eligibility criteria.
5.
(1) A person shall be qualied to benet from the preference and reservations schemes if the person (a) has the necessary qualications, capability, experience, and, where appropriate, resources, equipment and facilities to provide the goods or services intended to be procured; (b) has the legal capacity to enter into a contract for the procurement; (c) is not insolvent, in receivership, bankrupt or in the process of being wound up and is not the subject of legal proceedings relating to the foregoing; (d) is among the persons with whom the procuring entity may enter into a contract, not being precluded from doing so under section 33 of the Act; (e) is not debarred from participating in procurement proceedings under Part IX of the Act; and (f) is registered by the Ministry of Finance under regulation 6.
(2) A person shall not be qualied to benet from preference and reservation scheme (a) as a contracting rm, unless that person is qualied as a local contractor or a citizen contractor; or (b) as a, micro enterprise or an enterprise owner by a disadvantaged group unless the person is registered by the Ministry of nance as such upon application.
138 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] 6.
A small or micro enterprise or a disadvantaged group wishing to Registration of participate in public procurement shall apply for registration with the Ministry enterprises and of Finance in the form set out in the First Schedule.
groups.
7.
A rm shall be qualied as Qualications of contractors.
(a) a local contractor, if it is registered in Kenya, or (b) a citizen contractor, if its owners and shareholders are Kenyan citizens.
Application by foreign contractors.
8.
Notwithstanding the foregoing, a foreign contractor may apply benet from the preference and reservation scheme where it enters into a joint venture or subcontracting arrangements, as evidenced by written agreement, with a local contractor, where the local contractor has a majority share.
part IIIadmInIstratIon of preferenCe and reservatIon sChemes Regions where 9.
For purposes of section 39(4)(c) of the Act the regions preference and schemes apply.
reservations schemes is applied shall be (a) constituencies; (b) counties; and (c) local authorities.
Local preference.
10.
Local preference and reservations shall be applicable in the constituencies, local authorities and counties where citizen contractors are based and operate.
Exclusive preference.
11.
Local contractors who are based and operate in the regions specied in Regulation 10 shall be given exclusive preference when participating in procurements using funds from the Constituency Development Fund and the Local Authority Transfer Fund, except where it is established that local capacity is not available.
National 12.
For purposes of section 39(4) (d) of the Act, public entities shall grant Reservations.
exclusive preference to local contractors offering (a) motor vehicles, plant and equipment which are assembled in Kenya; (b) furniture, textile, foodstuffs and other goods made in Kenya; (c) goods manufactured, mined, extracted or grown in Kenya.
Threshold for 13.
For the purposes of section 39(8) (a) of the Act, the threshold exclusive preference.
upto which exclusive preference shall be given to citizen contractors in all procurements using open tendering methods, shall be the sum of (a) ve hundred million shillings for procurements in respect of road works; Public PrRev.
2010] ocurement and Disposal CAP.
412C 139 (b) two hundred million shillings for procurements in respect of other [Subsidiary] works; and (c) fty million shillings for procurements in respect of goods or services.
14.
For the purposes of section 39(8) (b) (i) of the Act, a fteen percent National preference.
margin of preference in the evaluated price of the tender shall be given to candidates offering goods manufactured, mined, extracted or grown in Kenya.
15.
For the purposes of section 39(8) (b) (ii) of the Act, the margin of Margin of preference.
preference shall be (a) six percent of the evaluated price of the tender, where percentage of shareholding of the Kenyan citizens is less than twenty percent; (b) eight percent of the evaluated price of the tender, where the percentage of shareholding of Kenyan citizens is less than fty-one percent but above twenty percent; and (c) ten percent of the evaluated price of the tender, where the percentage of shareholding of the Kenyan citizens is more than fty percent.
16.
Where citizen contractors have entered into contractual arrangements Preference for joint- with foreign contractors pursuant to regulation 8, a ten percent margin of ventures with citizens preference in the evaluated price of the tender shall be applied.
contractors.
part Ivgeneral prInCIples 17.
A candidate shall be entitled to tender for one preference and Single preferences.
reservation scheme at a time in a procurement proceeding.
18.
Where a candidate is entitled to more than one preference scheme, More than one the scheme with the highest advantage to the tenderer shall be applied.
preference.
19.
For the purpose of ensuring maximum participation of disadvantaged Unbundling of groups, small and micro-enterprises in public procurement, procuring entities procurements.
may unbundle goods, works and services in practicable quantities pursuant to Section 31(7) of the Act.
20.
For greater certainty, unbundled procurement proceedings shall be Preference to restricted to disadvantaged groups, small and micro-enterprises.
disadvantaged groups.
21.
(1) No tender securities shall be required from small and micro Tender security.
enterprises or enterprises owned by disadvantaged groups participating in procurement proceedings.
(2) Notwithstanding paragraph (1), target groups shall be required to complete and sign the Tender Securing Declaration Form set out in the Second Schedule.
140 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] (3) Any bidder from the target group who fails to adhere to the terms of the Tender Securing Declaration Form shall be liable to debarment pursuant to section 115 of the Act.
Term limit.
22.
An enterprise registered by the Authority in a target group benetting from the preference and reservation schemes shall be entitled to such benets for a period of ve years, which may be renewed once.
Open tender 23.
An advertisement relating to open tender under these Regulations shall advertisement.
state that such tender is open to small and micro enterprises and to disadvantaged groups registered with the Ministry of Finance.
Procurement to be 24.
Procurement of goods, works and services under these Regulations competitive.
shall be conducted on competitive procedure among the qualied target groups pursuant to regulation 6.
Framework contracts 25.
Procuring entities shall make use of existing framework contracts with target groups.
with disadvantaged groups, small and micro enterprises wherever appropriate to provide an efcient, cost effective and exible means to procure goods, works and services that are required repeatedly or continuously over a set period of time.
part vmonItorIng of ComplIanCe Monitoring and 26.
Application of the preference and reservations schemes by procuring evaluation.
entities shall be monitored by the Authority.
Authority to maintain 27.
The Authority shall maintain and update a register of all small and register.
micro enterprises and disadvantaged groups qualied to benet from the scheme and post it in its website or dedicated portal.
Integration of 28.
Procuring entities shall integrate preference and reservations schemes preference and in their procurement plans.
reservations schemes.
Procurement plan.
29.
A procuring entity shall submit to the Authority the part in its procurement plan demonstrating application of preference and reservations schemes in relation to the procurement budget within sixty days after commencement of the nancial year.
Report to the 30.
All procurement awards by procuring entities where a preference Authority.
or reservation scheme was applied shall be reported to the Authority on a quarterly basis.
Public PrRev.
2010] ocurement and Disposal CAP.
412C 141 [Subsidiary] FIRST SCHEDULE (r.6) applICatIon form for small, mICro enterprIses and dIs- advataged group to supply goods, worKs and servICes to proCurIng entItIes The registration of suppliers is aimed at building a prole for each supplier regarding information on general particulars of the company.
You are advised that it is a serious offence to give false information on this form.
part I: detaIls of the applICant 1.
Name of Applicant 2.
Physical Address 3.
Postal Address: 4.
Postal Code: 5.
E-mail: 6.
Phone No 7.
Fax No 8.
Contact Person 9.
OVERVIEW OF THE ENTERPRISE Type of ownership (please tick one) [Sole Proprietor)[Partnership] [Limited Company] [Others Specify] Number of employees [0-5] [6-25] [26-49] 50-59] [100-250] Initial Investments (KES) Total Annual Sales (Turnover KES) Experience in the sector in years 142 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] TYPE OF OWNERSHIP DETAILS Part 9 (a) Sole Proprietor Name in Full Age Identity/Passport No.
ParT 9 (b) ParTnershiP deTails Name Nationality ID/Passport No.
% Shares ParT 9 (c) reGisTered comPanY State the nominal and issued capital of company Nominal Kshs.
.
Issued Kshs.
Directors Details Name Nationality ID/Passport % Shares No.
10.
Bank Account Name:.
11.
Branch of the Bank: 12.
Bank Account Number: 13.
VAT Registration Number: 14.
Type of business: Public PrRev.
2010] ocurement and Disposal CAP.
412C 143 secTor [Subsidiary] AGRIBUSINESS TRADE HOSPITALITY & ENTERTAINMENT MANUFACTURING SERVICES ICT CONSTRUCTION OTHERS SPECIFY 15.
Prepared by (name in capital letters).
Title:.
Signature:.
Date part II: lIst of attaChments The following attachments are essential for appraisal and you are required to ensure that they are all attached, failure to which your application may be rejected: 1.
Copy of certicate of incorporation/registration; 2.
PIN Certicate; 3.
VAT Registration Certicate; 4.
Valid Tax Compliance/ Exemption Certicate; 5.
Original Bank Statement/Bank reference of not more than three months from date of applying; 6.
Copy of certicate of registration with relevant regulatory bodies; 7.
Business/Company prole; 8.
Evidence of having paid the non-refundable fee for the Application Form; 9 Copies of Annual Return Forms, led by Limited Companies, the Business Names for business names (sole trader and partnerships), and a stamped receipt which bears the Accounts Stamp from the Registrar of Companies/Societies; and 10.
Certicate of Registration in a target group issued by the Ministry of Finance.
144 CAP.
412C Public Procurement and Disposal [Rev.
2010 [Subsidiary] SECOND SCHEDULE (r.22) Tender-Securing Declaration Form [The Bidder shall complete in this Form in accordance with the instructions indicated] Date: [insert date (as day, month and year) of Bid Submission] Tender No.
[insert number of bidding process] To: [insert complete name of Purchaser] We, the undersigned, declare that: 1.
We understand that, according to your conditions, bids must be supported by a Bid-Securing Declaration.
2.
We accept that we will automatically be suspended from being eligible for bidding in any contract with the Purchaser for the period of time of [insert number of months or years] starting on [insert date], if we are in breach of our obligation(s) under the bid conditions, because we - (a) have withdrawn our Bid during the period of bid validity specied by us in the Bidding Data Sheet; or (b) having been notied of the acceptance of our Bid by the Purchaser during the period of bid validity, (i) fail or refuse to execute the Contract, if required, or (ii) fail or refuse to furnish the Performance Security, in accordance with the ITT.
3.
We understand that this Bid Securing Declaration shall expire if we are not the successful Bidder, upon the earlier of (i) our receipt of a copy of your notication of the name of the successful Bidder; or (ii) twenty-eight days after the expiration of our Tender.
4.
We understand that if we are a Joint Venture, the Bid Securing Declaration must be in the name of the Joint Venture that submits the bi, and the Joint Venture has not been legally constituted at the time of bidding, the Bid Securing Declaration shall be in the names of all future partners as named in the letter of intent.
Signed: [insert signature of person whose name and capacity are shown] in the capacity of [insert legal capacity of person signing the Bid Securing Declaration] Name: [insert complete name of person signing the Bid Securing Declaration] Public PrRev.
2010] ocurement and Disposal CAP.
412C 145 Duly authorized to sign the bid for and on behalf of: [insert complete name [Subsidiary] of Bidder] Dated on.
day of ., [insert date of signing].
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