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Public Procurement And Asset Disposal Act

· The Act Provides Was Enacted For Purposes Of Regulating Public Procurement And Asset Disposal By State Organs And Public Entities. Public Procurement And Asset Disposal By Public Bodies Are Governed By The Provisions Of This Act, Subject To The Constitution.

· Section 4 Of The Act Provides That The Act Shall Govern All State Organs And Public Entities With Respect To Procurement Planning And Processing, Inventory And Asset Management, Disposal Of Assets And Contract Management.

· Under Section 6, Where Any Provision Of The Act Conflicts With Any Obligations Of The Republic Of Kenya Arising From A Treaty, Agreement Or Other Convention Ratified By Kenya And To Which Kenya Is Party, The Terms Of The Treaty Or Agreement Shall Prevail. Further, Section 6(2) Provides That Where The Republic Of Kenya Is Required Under The Terms Of Any Treaty Or Convention To Which Kenya Is Party, To Contribute From Its Resources, In Any Form, To Any Procurement Activities Within Kenya, Either In Part Or Wholly, Jointly Or Separately, Procurement Through Such Contributions Shall Be In Discrete Activities Where Possible And Subject To The Applicable Provisions Of This Act.

Section 4(2) lists activities that are NOT subject to the Act which include:-

· retaining of the services of an individual for a limited term if, in providing those services, the individual works primarily as though he or she were an employee, but this shall not apply to persons who are under a contract of service

· transfer of assets being disposed off by one state organ or public entity to another state organ or public entity without financial consideration

· acquiring of services provided by government or government department

· acquisition and sale of shares or securities, fiscal agency by a public entity, investments such as shares purchased by cooperative societies, state corporations or other public entities

· procurement and disposal of assets under Public Private Partnership Act, 2013

· procurement and disposal of assets under bilateral or multilateral agreements between the Government of Kenya and any other foreign government, agency, entity or multilateral agency unless as otherwise prescribed in the Regulations

The National Treasury has the mandate to formulate public procurement and asset disposal policy as provided under section 7(1) of the Act.

Section 7(2) provides specific roles of the National Treasury in carrying out this which include:-

· formulate, evaluate, promote and research on national and county public procurement and asset disposal policy and standards

· develop policy guidelines for the efficient procurement management and disposal system for national executive

· design and prescribe an efficient procurement management system for the national and county governments to ensure transparent procurement and asset disposal as contemplated by Article 227 of the Constitution

· provide technical assistance on procurement and assist in the implementation and operation of the public procurement and asset disposal system

· manage and administer the scheme of service of the procurement and supply chain management services cadre for the national government

· carry out general research, develop and promote electronic procurement strategies and policies in both the national and county governments including state corporations and other government agencies

· carry out review of procurement and supply chain management system to assist procuring entities

· develop and review policy on procurement of common user items in the public sector both at national and county government levels

· develop policy on the administration of preference and reservations scheme and registration of target groups under preference and reservations scheme as prescribed

· facilitate affirmative action for disadvantaged groups in accordance with the Constitution and advance their participation in the procurement process

· develop and review policies and guidelines on the management of assets

· issue guidelines to public entities with respect to procurement matters

Powers of the Authority

· A public entity shall provide the National Treasury or the Authority with such information relating to procurement and asset disposal as may be required in writing -Section 34

· Undertake investigations at any given time through investigators appointed by the Authority-Section 35(3)

· Investigators have specific powers provided under section 36(1) which include:-

Right to access, with prior notice to the relevant entity, books, records, returns, reports and other documents of the procuring entity or a person who participated in the procurement or asset disposal proceedings, including electronic documents;

 

· The investigator also has powers to remove or make copies of any documents the investigator has access to and certify a copy of the document to be left with the procuring entity. The investigator may also require an employee/official of the procuring entity or a person who participated in the procurement or asset disposal proceedings to provide explanations, information and assistance on any investigations. This is also provided under section 43(4),(5) and (6)

· Investigators are required to submit a report to the Authority upon completing their investigations- Section 37

· However there shall be no investigations to be conducted for matters already pending before the Review Board-Section 40

· The Authority has powers to debar a person or entity from a procurement process

· Section 44(1) provides for circumstances where a person or entity shall be debarred from participating in procurement or asset disposal proceedings. These are:-

  1. committed an offence under this Act;
  2. has committed an offence relating to procurement under any other Act or Law of Kenya or any other jurisdiction
  3. has breached a contract for a procurement by a public entity including poor performance;
  4. has, in procurement or asset disposal proceedings, given false information about his or her qualifications
  5. has refused to enter into a written contract as required under section 135 of the Act
  6. has breached a code of ethics issued by the Authority pursuant under section 181 of the Act or the code of ethics of the relevant profession regulated by an Act of Parliament;
  7. has defaulted on his or her tax obligations
  8. is guilty of corrupt or fraudulent practices; or
  9. is guilty of a serious violation of fair employment laws and practices.

 

· However under section 44(1) the Authority may consider disbarring an entity, which are:-

  1. breached the requirements of the tender securing declaration form in the tender documents; or
  2. non-performance according to professionally regulated procedures

· The Authority, may also debar a person from participating in procurement or asset disposal proceedings on the recommendation of a law enforcement organ with an investigative mandate or on grounds prescribed by the Authority in Regulations-Section 41(3)

· Debarment shall be for a specified period of time of not less than three years- section 41(4).

· Section 43(1)-The Authority has power to may inspect, assess, review or audit at any reasonable time, the records and accounts of the procuring entity and contractor relating to the procurement or disposal proceeding or contract. The procuring entity or contractor or tenderer has the responsibility to co-operate with and assist whoever does such an inspection.

· Section 43(2) empowers the Authority to conduct procurement audits during the tender preparation, contract audit in the course of execution of an awarded tender; and performance audit after the completion of the contract in respect of any procurement or asset disposal as may be required.

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