Kenya is notorious for public projects being false-starts, cost overruns on their budgets and delayed timelines. Public projects have almost been synonymous to and tagged to the infamous white elephants, gravy train and rent seeking vocabularies. This state of affairs can be chiefly attributed to poor project and contract implementation. This has been revealed in the Auditor-General’s Report 2016 on state entities, perhaps the reason why Gerry Geek stated that “a project is like love; it has clear intentions at the beginning; but it can get complicated midstream.”
Simply put, project management is like juggling three balls – time, cost and quality. All these aspects woven together are essential for effective project delivery. With a number of public entities now embracing and implementing a number of projects under the Public Private Partnerships Act, No.27 of 2013 (PPPA) framework whose structuring and implementation is more complex and fraught with novelties, the state of affairs unless addressed may be headed to a more deplorable state.
In recognition of and to address this challenge the PPADA has scaled up project implementation and contracts management to commendable levels.
Most importantly, section 151 of PPADA, provides that “for every complex and specialised procurement contract, the chief executive officer of the public entity shall appoint a contract implementation team. The team shall be responsible for among other functions: – monitoring the performance of the contractor, to ensure that all delivery or performance obligations are met or appropriate action taken by the public entity in the event of obligations not being met.”
Section 53 (2) and (8) of PPADA provides that “public entities shall prepare annual procurement plans and that procurement proceedings shall not be commenced unless there are sufficient funds approved and budgeted for to meet the obligations of any resultant contract.” Failure to do so is an offence under Section 53 (9). This provision ensures that any public entity shall only engage in a project with proof of availability of funds and that termination of contracts for lack of funds is an exception rather than the norm like it has been the case in the past.
Section 83 provides for due diligence by the evaluation committee on the lowest bidder to confirm and verify the qualifications and ability to perform after the evaluation but before contract award.
In taming the trend whereby contractors would delay, fail to complete, abandon or compromise on the quality of goods, works or services subject of procurement, sections 142 – 145 provide that contractors shall provide performance security before any contract sign-off. This quite often shall be in the form of an on-demand bank guarantees or professional indemnities. This requirement helps secure and enforce contract performance by the contractors and/or consultants.
In addressing challenges where payments would be made to contractors in advance, divert the same to other extraneous activities and therefore fail to meet performance obligations, sections 146 – 148 provide that advance payment shall not be made before an executed contract is in place. The sections further limit any advance payment to 20 per cent of the contract price. Importantly, the advance payment shall not be used for any purpose other than for which it was issued and when used to the contrary it shall be recovered as a debt by seizing the entire security or part of it.
As relates to quality assurance, section 48 provides for appointment of an Inspection and Acceptance Committee. The role of the committee is to inspect and accept delivery of goods, works or services. The committee has a duty to review and reject the delivered goods, works or services when they fall short of quality, quantity, specifications, technical standards of the contract and above all ensure that the delivery or performance is completed within time.
With the PPADA now underpinning contracts implementation teams, procurement planning, performance securities, post-evaluation due diligence, inspection and acceptance committees, among others in law, this legislative intervention may be the just needed shot in the arm for effective and quality projects delivery for public good and interest.
Regulatory role in ensuring that quality, value for money and timely delivery essentials of public projects are realised is being played by the:
- Public Procurement Regulatory Authority to ensure compliance by public entities on the above,
- Quality audits by the independent office of the Auditor-General as established under the Public Audits Act 2013,
- Active participation of the independent offices of Ethics and Anti-Corruption Commission,
- The Director of Public Prosecutions,
- The National Assembly oversight role through the relevant Parliamentary Accounts and Investment Committees,
- The oversight role of the Senate in County procurement.
The Project Management Institute (PMI) Kenya efforts and push to have in place a legislation to regulate project management industry is also a welcome and commendable move. The members through the lobby body are pressing to have the Project Management profession formally recognised.
Project Managers want to join the league of regulated practitioners such as advocates, engineers, architects, quantity surveyors and doctors. They also keen to have it made mandatory to hire project managers for all public and private development projects. The lobby body’s vantage point is that hiring qualified project managers will decimate if not forestall the increasing trend fraught with poor planning, execution and delivery of public and private projects.
With these legislative interventions supported by the oversight role of the foregoing bodies, it is expected that there will be improved and notable success in execution and delivery of value for money in public projects. The infamous white elephant tag to public projects should now be a thing of the past, an exception and not the norm.
By: Ibrahim Kitoo
An Advocate of the High Court of Kenya specializing in Corporate Law