MONITORING OF PUBLIC
PROCUREMENT BY CIVIL
SOCIETY ORGANIZATIONS
KIPKEMBOI CHERONO
BA, MSc, MKISM
SESSION OBJECTIVES
Definition of monitor/ monitoring
Understand the legal framework for
monitoring
The importance of monitoring in public
procurement
Conditions for effective monitoring
Types of monitoring
Opportunities for CSO engagement in the
procurement cycle2
DEFINITION
The Oxford Dictionary of English (ODE) defines
the verb “monitor” as “to observe and check the
progress or quality of (something) over a period
of time; keep under systematic review.”
“monitoring” is “an intermittent (regular or
irregular) series of observations in time, carried
out to show the extent of compliance with a
formulated standard or degree of deviation from
an expected norm”
The role of monitoring is to assess whether the
objectives are being met.3
PPADA REQUIREMENTS CONCERNING
MONITORING
The PPADA does not define the meaning of
the term “monitor” or “monitoring”.
The Act provide specific requirements
concerning the monitoring of public
procurement.
The Public Procurement Regulatory
Authority has the primary role to monitor
public procurement and asset disposal
system to ensure compliance.
4
PPADA REQUIREMENTS CONCERNING
MONITORING
Part II of the Act, establishes the bodies
involved in the regulation of public
procurement and their roles.
The National Treasury (Section 7) is
responsible for public procurement and asset
disposal policy formulation.
S. 8 establishes the Public Procurement
Regulatory Authority (PPRA) as a body
corporate
5
ROLE OF PPRA
S.9 outlines the functions of the Authority which include
among others;
a) Monitor, assess and review the public
procurement…..system to ensure that they respect
the national values and other provisions of the
Constitution including Article 227…;
b) Monitor the public procurement system and report
on the overall functioning of it and present to the
Cabinet Secretary and the county executive
member for finance in each county, such reports
and recommendations for improvement;6
ROLE OF PPRA
d) Monitor classified procurement information
including that of specific items of security
organs and make recommendations to the
Cabinet Secretary
e) Monitor implementation of the preference
and reservation schemes by procuring entities
l) Monitor and evaluate the preference and
reservation schemes….and provide quarterly
public reports
7
OTHER REQUIREMENTS
The Act provides for reporting obligations of
procuring entities`
1. Preparation and publication of
procurement plans
2. Submission of reports on procurement
above Kshs. 5 million to PPRA
3. Part of the procurement plan
demonstrating application of the
preference and reservation schemes
8
ROLE OF MONITORING
Monitoring in public procurement has the
following functions:
✓ Assessing the way in which the public
procurement system develops as a whole
and the direction in which it is moving
✓ some trends can be identified only after
years of observation;
✓ providing meaningful information that is
essential for policy making;
✓ ensuring compliance with procurement laws 9
ROLE OF MONITORING
✓ Identifying the need for any changes in thesystem;
✓ Setting short and long-term priorities andevaluating whether they have beenachieved;
✓ Analysing the potential effects of alternativesolutions;
✓ Providing guidance for procurement policyand implementation decision making;
✓ Providing information of relevance todecisions made by other policy makers. 10
CONDITIONS TO ENSURE EFFECTIVE
MONITORING
To ensure that monitoring yields meaningful
results, a number of conditions must be fulfilled.
1. First, the policy goals and objectives of the
public procurement system should be
consistent over time, as otherwise it would be
difficult to compare the results obtained
through the monitoring process.
2. availability of good, reliable data is essential.
3. effective monitoring requires the staff involved
in monitoring activities to possess good
analytical and reporting skills. 11
CONDITIONS TO ENSURE EFFECTIVE
MONITORING
They need to know;
✓ what kind of information is useful,
✓ how to collect this information,
✓ how to proceed with data gathered,
✓ how to draw conclusions, and
✓ how to present the results obtained by the
monitoring.
4. the effectiveness of monitoring depends on
official support, guidance and actions.12
TYPES OF MONITORING
The following forms of monitoring can be
identified:
✓ Audit of compliance (procedural
compliance);
✓ Performance evaluation/ performance
measurement;
✓ Policy compliance monitoring.
13
AUDIT OF COMPLIANCE
The audit of compliance consists of verifyingthat the legal provisions on public procurementhave been properly applied.
This means the verification of the actions ofprocuring entities in terms of legal compliance.
Monitoring is conducted throughchecks/inspections of the legality of the actionsby the procuring entities e.g.
✓ the qualification of bidders
✓ the selection of the best tender or
✓ the failure by PE to publish a contract noticewhere its publication was required.
14
AUDIT OF COMPLIANCE
Enhance openness and transparency throughinspections to detect application of non-competitive, non-transparent procedures;
Such checks/inspections aim to discourage PE’sfrom using opaque procedures in award of publiccontracts. The result is to increase in the share ofcompetitive procedures.
Similarly, if the policy is to increase the participationof SMEs and other disadvantaged groups in publicprocurement, monitoring of compliance with therules concerning selection and qualification rules(minimum requirements, capacity levels,documents requested, etc.) should result in theremoval of barriers faced by SMEs that arecompeting for public contracts. 15
PERFORMANCE AUDIT/ MEASUREMENT
“Performance measurement is about seeking to
answer the fundamental question of whether the
procurement system and operations ultimately
deliver in accordance with the main objectives set”
This kind of monitoring focuses on the assessment
of the functioning of the procurement system in
terms of its efficiency and effectiveness.
To perform this assessment, the persons involved
in the monitoring need to collect and proceed with
a wide array of data concerning procurement
processes. 16
PERFORMANCE MEASUREMENT
The procurement indicators normally include;
Number of tenders published and/or launched during a
given reporting period and the procurement method used
i.e. assessment of the competitiveness;
Average time from the publication of the procurement
opportunity and the conclusion of a contract to establish
the efficiency of the system;
Estimated cost in the value of the contract and the prices
of selected tenders (Any comments?);
Number of tenders rejected in procurement processes
(good indicator of the competitiveness of the
procurement market);
Number of complaints (appeals)17
PERFORMANCE MEASUREMENT
Performance measurement is conducted at
various levels:
National level – assessing the performance
of the national public procurement system as
a whole; (PPRA, KENAO)
Procuring entity level – assessing the
performance of the procuring entity’s
operations;
Contract management level – addressing
the issue of delivery of an individual contract.18
SOURCES OF INFORMATION FOR
MONITORING
Notices related to public procurement – tenderadvertisements, contract notices, contractaward notices;
Transparency notices i.e. notices of the PEindicating its intention to procure through limitedtender. S102 (1) (d).
Individual reports, notifications of contractingauthorities (information on the application ofexceptional procurement procedures, recordsof the procedures);
Summary reports prepared on a regular basis(e.g. annually) by contracting authorities anddelivered to the public procurement PPRA
19
Opportunities for CSO
engagement in monitoring
20
PROCUREMENT PLANNING
S.53 Stipulates that the accounting officer shallprepare an annual procurement plan which isrealistic.....within the approved budget prior tocommencement of each financial year as part of thebudget preparation process
Procurement plans are a good start point formonitoring of public procurement.
Though public bodies are required by law toprepare procurement plans these are not publishednor publicised for interrogation by the public, hencecannot be easily monitored.
Cases abound of public bodies which procuregoods, works and services outside the approvedprocurement plan, sometime for politicalexpediency. 21
MARKET PRICE INDEX
S.54 (2) provides that standard goods, services
and works shall be procured at the prevailing
market prices and;
Subsection 3 requires PPRA to issue a quarterly
market price index as a reference guide to assist
accounting officers make informed price
decisions.
There have been instances where the media
including social media have reported procuring
entities that procure over-priced common user
items despite there being a market-price index.22
INVITATION TO TENDER
S.74 (1) sets out the contents of an
invitation to tender
The Invitation to Tender shall ensure that
adequate information is provided including
“a statement that those submitting tenders
or their representatives may attend the
opening of tenders”
Public opening is integral to transparency
and monitoring
23
TENDER ADVERTISEMENT
S. 96 (2) makes it mandatory for accounting
officers for goods, works and services equal to or
more than the prescribed threshold to advertise in
the dedicated Government tender’ portal or its
own website, or a notice in at least daily
newspapers of nationwide circulation;
These can be monitored to ensure they meet the
legal requirements by reviewing the tender
documents and seeking clarifications.
24
EVALUATION OF BIDS/TENDERS
S.65 makes it unlawful to be construed to influenceevaluation and comparison of tenders i.e. undueinfluence.
S.67 During and or after procurement proceedingsand subject to sub-section (3), no procuring entityand no employee or agent.......or member of aboard, commission or committee......shall disclose;
(c) information relating to the evaluation,comparison or clarification of tenders,proposals or quotations; or
(d) the contents of tenders proposals orquotations
25
PROCUREMENT RECORDS
After a contract has been awarded to any
person or the procurement proceeding has
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
any other interested member of the public
where such information is aligned to the
principle of public interest….
26
PUBLICATION OF CONTRACTS
S.138 (1) The Accounting Officer……shallpublish and publicise all contract awards ontheir notice boards at conspicuous places,and website if available within a period asprescribed.
S. 138 (2) An accounting officer …shallreport all contract awards to the Authority asprescribed
S. 138 (3) The Authority shall publish on itswebsite notices of the reports on contractawards from procuring entities.
27
CONTRACT ADMINISTRATION
S. 151 The accounting officer shall appoint
a contract implementation team for complex
and specialized contracts.
Subsection 3 gives discretion to the
accounting officer to co-opt a member to the
contract implementation team from another
procuring entity or outsource.
28
PUBLIC PROCUREMENT ADMINISTRATION
REVIEW BOARD (PPARB)
The basic function is to conduct an impartial andindependent review of appeals arising from aprocurement process and decision of procuringentities.
Appeals are usually reviewed by means ofinterlocutory procedures, in which two parties – theaggrieved bidder and the procuring entity – presenttheir arguments before the Board.
The Board’s role is to settle the dispute betweenthose two parties.
Though it is not involved in the monitoring of publicprocurement, their decisions are instrumental in themonitoring of developments in the field of publicprocurement, as they concern similar actions oromissions of procuring entities. 29
CONCLUSION
Monitoring is a meaningful exercise only if it isconducted over a defined time period and by usingthe same or similar methodology or combination ofmethodologies.
Data may vary from year to year, but in a longerperspective trends should be visible.
Conclusions are also valid only if the data collectedis comparable and if it is compared under similarconditions (for example, during a specific period,procurement provisions remain more or less stablewith regard to such elements as financial thresholdsfor the application of procurement law, time periods,conditions for the application of various types ofprocurement procedures, etc.).
30
31