By Mildred Maina
Public procurement in Kenya is one of the most dynamic areas of legislation given the many amendments and proposals to revise the current legal regime. It is a constitutional requirement outlined in Article 227 of the Kenyan Constitution and states the principles of public procurement including: fairness, equity, transparency, competitiveness, and cost effectiveness when a public entity contracts for goods, services, and work.
With the enactment of the PPADA, 2015 (Public Procurement and Asset Disposal Act) and the PPADR, 2020, (Public Procurement and Asset Disposal Regulations) there has been severe scrutiny to ensure compliance and integrity of procurement procedures.
One of the key processes of procurement is identifying the most qualified bidder. Ideally, bidders must show their ability to execute the order by detailing their achievements. This is a critical factor that helps in determining who gets the award. As a result, unsuccessful bidders would have no capacity to prove that the qualified bidder is not compliant with the set criteria in the bid document.
A case in point is M/S AAKI CONSULTANTS’ ARCHITECTS AND URBAN DESIGNERS V. MERU UNIVERSITY OF SCIENCE & TECHNOLOGY, which involved failure to carry out due diligence on all the technically responsive bidders as spelt out in the tender document. The Public Procurement Administrative Review Board (PPARB) held that the procuring entity acted beyond the powers of Article 227 of the Constitution.
Therefore, to have a clean procurement process, procuring entities must adopt best practices.
First is to avoid unnecessary criteria. An entity must ensure that the criteria of selection process employed are simple and easy to decipher. Second is fairness, meaning the bid document should not be drafted in a manner that favours a ‘certain’ bidder. All bidders should be treated fairly as espoused in article 227 of the Constitution.
Third, ensuring less complexity, fewer errors. Errors in bids and the procurement process are a source of litigation risk going by the cases handled by the review board. This can be reduced by making the criteria less subjective, complex and detailed.
Further, simplicity is key in ensuring a flawless procurement process. The Public Procurement Regulatory Authority (PPRA) developed new Standard Tender Documents (STDs) in line with Section 9 (1) (f), 58 and 70 of the PPADA, 2015. The new standard documents have incorporated changes in the Act of 2015, Regulations 2020, and international best practices. The goal is to bring about uniformity in the Public Sector and provide a system that is fair, transparent, competitive, and cost-effective. However, the downside of the document is that it is quite lengthy and detailed, which may easily lead to mistakes in drafting.
Procuring entities must also implement clear guidelines. They need to develop consistent, best practice-based guidelines for procurement.
Lastly, investing in training remains a major factor in procurement. Procuring entities should ensure that all relevant staff attend training programmes on procurement processes to learn how to avoid pitfalls of public procurement as seen in the review board cases. This will enhance the capacity of organisations in recognising procurement process abnormalities. It will also equip decision makers and implementers with a basic framework for conducting procurement in a manner that mitigates incidences of appeals, litigation and risks of personal prosecution.
Mildred Maina is Senior Officer, Supply Chain Management at the Media Council of Kenya.