The Public Procurement and Asset Disposal Board(PPADB) is proposing to devolve the adjudication and award of all tenders to Tender Committees.
Proposed amendments envisage the Composition of the Board to comprise of only “Non-Executive Directors” and to do away with the hybrid composition which include full time Executive Directors and the Executive Chairperson as members of the Board.
It is also proposed that there is a separation of “Executive Chairperson” role from that of management and have “Chief Executive Officer” to enhance governance.
Asset Disposal to be entirely devolved/decentralised to Procuring Entities and the Board will have no roll to do with disposal of assets.
“As a result, the name of the organisation is proposed to change to Public Procurement Board with the removal of all references to “Asset Disposal” from the PPAD Act,” said Ken Ketshajwang, PPADB Executive Director Supplies.
He said, “The Board shall promote and support, Capacity building, training and professional development of Public Procurement personnel and ensuring adherence to ethical standards of such persons.”
Ketshajwang called for Emergency Procurement Procedure allowing the Board in urgent cases to make a decision using the emergency procurement procedures to be prescribed and granting Minister retroactive powers tosave lives and environment.
PPADB is also calling for submission of End of Activity Reports(EOAR) for all Procuring Entities to submit EOAR to the Board before final payment to the Contractor and in addition
The Board shall over a prescribed period of time delegate in writing to the Ministerial Public Procurement Committees such responsibilities as may be prescribed by the Minister.
The Ministerial Public Procurement Committees shall be responsible for the management of the public procurement process including bid adjudication and award.
That accountability and responsibility for procurement decisions taken by the procuring entities be left with the PE’s to the level of delegated authority.
Disclosure of interests to be amended to cover member private interest and immediate family member interest (directly or indirectly) in their private capacity on a matter under consideration. The penalties for failure to disclose interest will be (P2000) or 6 months imprisonment and there will be confidentiality obligations Board, Committee, Sub-Committee, Experts or person assisting the Board or its Committees bound to keep all matters confidential even after termination of their term of office or mandate.
A call is also being made for the PPAD Act to include a provision on unsolicited bids under Public Private Partnerships(PPP) procedures. The procedure for handling unsolicited bids shall be set out in the Guidelines and the intellectual property rights over the project idea must be acknowledged and recognized in the tendering process.
“There have been suggestions there should be mandatory for both local and international contractors intending to bid for public procurement. The Board however observed that this may cause delays or failure to obtain participation from international contractors and result in failure to obtain the required enhanced competition,” said Ketshajwang.
There are potential risks in extending the registration to International contractors as it may become cumbersome and stifle competition. The stakeholder conference was therefore requested to provide input on this requirement.
There have also been suggestions for restriction on Defaulting Contractors where defaulting party forms part of the key personnel of the Contractor that Contractor shall be barred from bidding on new tenders until period of debarment or suspension lapses and to provide for exclusion of Contractors convicted of corruption under the Corruption and Economic Crime(DCEC) Act or by order of Court from public tendering.
PPADB is also keen to move away from current reliance on “least cost selection evaluation method” towards a more comprehensive evaluation process that promotes best value and identification of “best fit” for government.
Like Botswana, Kenya has been carrying out Public Financial Management (PFM) reforms in order to enhance transparency and accountability including prudent utilization of public resources and thus improve service delivery to the public.
A major component of these ongoing reforms is in the area of public procurement and a key milestone was the enactment of the Public Procurement and Disposal Act, 2005.
“Let’s benchmark with one another and incorporate best practice, emerging issues for continuous improvement of our systems,” said Maurice Juma, Director General of the Kenyan Public Procurement Regulatory Authority (PPRA)
He said, “Let’s entrench e-Procurement in our respective procurement laws and increase presence of procurement professionals in procurement regulatory boards and tribunals.
There is also a need to recognize new and efficient procurement and asset disposal methods trending in the market.”
In changing the law Kenya relied on a multitude of sources like stakeholders consultative forums at both sectoral, regional and national level as well as international benchmarking study tours in the US, Canada, EU, Chile, Seychelles, Mauritius, etc.
Proposals from development partners, the East African Monetary Union and Kenya Vision 2030 also played a valuable part.
Article 227 of the Constitution of Kenya requires that “An Act of Parliament shall prescribe a framework within which policies relating to procurement and asset disposal shall be implemented.”