Public Procurement and Disposal Act, 2005

8/14/2019 Public Procurement and Disposal Act, 2005

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SPECIAL ISSUE

Kenya Gazette Supplement No. 77(Acts No. 3)

REPUBLIC OF KENYA____________

KENYA GAZETTE SUPPLEMENT

ACTS, 2005

NAIROBI, 26 th October, 2005

CONTENT

Act- PAGE

The Public Procurement and Disposal Act, 2005 45

________________________________________________PRINTED AND PUBLISHED BY GOVERNMENT PRINTER, NAIROBI

THE PUBLIC PROCUREMENT AND DISPOSAL ACT No. 3 of 2005


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No. 3 Public Procurement and Disposal 2005

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Date of Assent: 26 th October, 2005 Date of Commencement: By NoticeARRANGEMENT OF SECTIONS

PART I - PRELIMINARY1Short title and commencement.

2Purpose of the Act.

3Definitions.

4Application of Act.

5Conflicts with other Acts.

6Conflicts with international agreements.

7Conflict with conditions on donated funds.

PART II BODIES INVOLVED IN THE REGULATION OF PUBLICPROCUREMENT

A Public Procurement Oversight Authority

8Establishment of Authority.

9Functions of Authority.

10Director-General of the Authority.

11Term of office of Director-General.

12Restrictions on activities of Director-General.13Terms of service.

14Resignation of Director-General.

15Removal of Director-General.

16Staff.

17Acting Director-General.

18Financial arrangements.

19Audit.

20Quarterly and annual reports.


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B Public Procurement Oversight Advisory Board

21Establishment of Advisory Board.

22Composition of Advisory Board.

23Functions of Advisory Board.

24Procedures of Advisory Board.

C Public Procurement Administrative Review Board

25Review Board.

PART III INTERNAL ORGANISATION OF PUBLIC ENTITIES RELATINGTO PROCUREMENT

26Threshold matrix and segregation of responsibilities.

27Responsibility for complying with Act, etc.

28Procuring agents.

PART IV - GENERAL PROCUREMENT RULES

29Choice of procurement procedure.

30Procurement not to be split or inflated.

31Qualifications to be awarded contract.

32Pre-qualification procedures.

33Limitation on contracts with employees, etc.

34Specific requirements.

35Verification that not debarred.

36Termination of procurement proceedings.

37Form of communications.

38Inappropriate influence on evaluations, etc.

39Evaluation criteria based on citizenship or nationality.

40Inducements.

41Misrepresentations.


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68Creation of contract.

69Refusal to sign contract.

70Changes to contract responsibilities.

71International tendering.

PART VI - ALTERNATIVE PROCUREMENT PROCEDURES

72Part sets out requirements.

A - Restricted tendering

73When restricted tendering may be used.

B - Direct procurement

74When direct procurement may be used.75Procedure.

C - Request for proposals76When request for proposals may be used.

77Procedure.

78Notice inviting expressions of interest.

79Terms of reference.

80Determination of qualified persons.

81Request for proposals to qualified persons.

82Evaluation of proposals.

83Notification of successful proposal.

84Negotiations with submitter of successful proposal.

85Contract requirements.

86International competition.

87Restriction on entering into certain related contracts.

D - Request for quotations

88When may be used.


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89Procedure.

E - Procedure for low-value procurements

90When may be used.

91Procedure.

F - Specially permitted procurement procedure

92Authority may permit.

PART VII - ADMINISTRATIVE REVIEW OF PROCUREMENTPROCEEDINGS

93Request for a review.

94Suspension of proceedings, etc.95Dismissal of frivolous requests, etc

96Parties to review.

97Completion of review.

98Powers of Review Board.

99 Right to review is additional right.

100Right to review is additional right.

PART VIII - AUTHORITY POWERS TO ENSURE COMPLIANCE

101Information to Authority.

102Investigations.

103Powers of investigators.

104Report, etc. of investigation.

105Order by Director-General.


107Dismissal of frivolous requests, etc.

108Convening of review.


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112Appeals.


114No investigation, etc. if issue before Review Board.

PART IX - DEBARMENT FROM PARTICIPATING IN PROCUREMENTPROCEEDINGS

115Debarment.

116Opportunity to make representations.


118Dismissal of frivolous requests, etc.

119Convening of review.




123Appeals.


125List of debarred persons.

PART X - DISPOSAL OF STORES AND EQUIPMENT

126Application of Part.

127Responsibility for complying with Act, etc.

128Disposal committee.

129Disposal procedure.

130Directions.

131Restriction on disposal to employees, etc.


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132Application of Part VIII to disposals.

PART XI - MISCELLANEOUS

133Certain procurements and disposals by armed forces, police, etc.

134Consultation meetings.

135Offence - obstruction, etc.

136Offence contravention of orders.

137 General Penalty.

138Protection from personal liability.

139Applicable ethics.

140Regulations.

141Availability of Act, etc.

142Transitional provisions.

143Amendment of Cap. 412.

144Other consequential amendments.

First Schedule Provisions Relating to Members of the Advisory Board.

Second Schedule Provisions Relating to the Conduct of Business andAffairs of the Advisory Board.

Third Schedule Transitional Provisions.

Fourth Schedule Consequential Amendments.


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THE PUBLIC PROCUREMENT AND DISPOSALACT, 2005

AN ACT of Parliament to establish procedures forefficient public procurement and for thedisposal of unserviceable, obsolete or surplusstores, assets and equipment by public entitiesand to provide for other related matters

ENACTED by the Parliament of Kenya as follows:-

PART I - PRELIMINARY

Short title and

commencement. 1. This Act may be cited as the Public Procurement

and Disposal Act, 2005 and shall come into operation onsuch date as the Minister may, by notice in the Gazette,appoint.

Purpose of theAct.

2. The purpose of this Act is to establish proceduresfor procurement and the disposal of unserviceable,obsolete or surplus stores and equipment by publicentities to achieve the following objectives

(a) to maximise economy and efficiency;

(b) to promote competition and ensure thatcompetitors are treated fairly;

(c) to promote the integrity and fairness of thoseprocedures;

(d) to increase transparency and accountability inthose procedures; and

(e) to increase public confidence in thoseprocedures.


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(f) to facilitate the promotion of local industry andeconomic development.

Definitions.

3.(1) In this Act, unless the context otherwiserequires

accounting officer means

(a) for a public entity other than a local authority,the person appointed by the PermanentSecretary to the Treasury as the accountingofficer or, if there is no such person, the chief executive of the public entity; or

(b) for a local authority, the town or county clerk of the local authority;

Advisory Board means the Public ProcurementOversight Advisory Board established under section 21;

Authority means the Public Procurement OversightAuthority established under section 8;

"candidate" means a person who has submitted atender to a procuring entity;

citizen contractor means a natural person or anincorporated company wholly owned and controlled bypersons who are citizens of Kenya;

"contractor" means a person who enters into aprocurement contract with a procuring entity;

No.3 of 2001.

"corruption" has the meaning assigned to it in the AntiCorruption and Economic Crimes, Act 2003 and includesthe offering, giving, receiving or soliciting of anything of value to influence the action of a public official in theprocurement or disposal process or in contract execution.


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procuring entity means a public entity making aprocurement to which this Act applies;

public entity means

(a) the Government or any department of theGovernment;

(b) the courts;

(c) the commissions established under theConstitution;

Cap. 265. (d) a local authority under the Local GovernmentAct;

Cap. 446. (e) a state corporation within the meaning of theState Corporations Act;

Cap. 491.

(f) the Central Bank of Kenya established underthe Central Bank of Kenya Act;

No. 12 of 1997 (g) a co-operative society established under theCo-operative Societies Act;

Cap. 211. (h) a public school within the meaning of theEducation Act;

Cap. 210B. (i) a public university within the meaning of theUniversities Act;

(j) a college or other educational institutionmaintained or assisted out of public funds; or

(k) an entity prescribed as a public entity for thepurpose of this paragraph;


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Cap.412.

public funds has the meaning assigned to it in theExchequer and Audit Act and includes monetary

resources appropriated to procuring entities through the budgetary process, as well as extra budgetary funds,including aid grants and credits, put at the disposal of procuring entities by foreign donors, and revenues of procuring entities;

Review Board means the Public ProcurementAdministrative Review Board established under section25;

services means any objects of procurement ordisposal other than works and goods and includesprofessional, non professional and commercial types of services as well as goods and works which are incidentalto but not exceeding the value of those services;

the regulations means regulations made under thisAct;

urgent need means the need for goods, works orservices in circumstances where there is an imminent oractual threat to public health, welfare, safety, or of damage to property, such that engaging in tenderingproceedings or other procurement methods would not bepracticable;

works means the construction, repair, renovation ordemolition of buildings, roads or other structures andincludes

(a) the installation of equipment and materials;

(b) site preparation; and

(c) other incidental services.


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(2) A regulation prescribing a public entity for thepurpose of paragraph (k) of the definition of public

entity in subsection (1) may prescribe a class of publicentities or may specify particular public entities.

Application of Act.

4.(1) This Act applies with respect to

(a) procurement by a public entity;

(b) contract management;

(c) supply chain management, including inventoryand distribution; and

(d) disposal by a public entity of stores andequipment that are unserviceable, obsolete orsurplus.

(2) For greater certainty, the following are notprocurements with respect to which this Act applies

(a) the retaining of the services of an individual fora limited term if, in providing those services,the individual works primarily as though he

were an employee;

(b) the acquiring of stores or equipment if the storesor equipment are being disposed of by a publicentity in accordance with the proceduredescribed in section 129(3)(a);

(c) the acquiring of services provided by theGovernment or a department of theGovernment.

(3) For greater certainty, the following areprocurements with respect to which this Act applies


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(a) the renting of premises, except as described undersubsection (2)(c);

(b) the appointing, other than under the authority of an Act, of an individual to a committee, task forceor other body if the individual will be paid anamount other than for expenses;

(c) the acquiring of real property.

Conflicts withother Acts.

5.(1) If there is a conflict between this Act or theregulations made under this Act and any other Act orregulations, in matters relating to procurement anddisposal, this Act or the regulations made under this Actshall prevail.

(2) For greater certainty, a provision of an Act thatprovides for a person or body to approve any work orexpenditure shall not be construed as giving that personor body any power with respect to procurementproceedings.

Conflict withinternationalagreements.

6.(1) Where any provision of this Act conflicts withany obligations of the Republic of Kenya arising from atreaty or other agreement to which Kenya is a party, thisAct shall prevail except in instances of negotiated grantsor loans.

(2) Where a treaty or agreement referred to insubsection (1) contains provisions favourable to citizensand local contractors, full advantage shall be taken of these in the interest of promoting domestic capacitydevelopment.

(3) Where the Republic of Kenya is required underthe terms of any treaty or agreement to which she isa party, to contribute from her resources, in any form,to any procurement activities within Kenya, either


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in part or wholly, jointly or separately, procurementthrough such contributions shall be

(a) in discrete activities where possible; and

(b) subject to the applicable provisions of thisAct.

(4) The disposal of any or all of the goods or publicassets accruing to Kenya as a result of procurementactivities to which subsections (1) and (2) apply shall besubject to the provisions of this Act.

(5) Where a procurement to which subsection (1) applies favours an external beneficiary -

(a) the procurement through contributions madeby Kenya, shall be undertaken in Kenyathrough contractors registered in Kenya; and

(b) all relevant insurances shall be placed withcompanies registered in Kenya and goods shallbe transported in carriages registered in Kenya.

Conflict with

conditions ondonated funds.

7.(1) If there is a conflict between this Act, theregulations or any directions of the Authority and acondition imposed by the donor of funds, the conditionshall prevail with respect to a procurement that usesthose funds and no others.

(2) This section does not apply if the donor of funds isa public entity.


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PART II BODIES INVOLVED IN THE REGULATIONOF PUBLIC PROCUREMENT

A Public Procurement Oversight Authority

Establishment of Authority.

8.(1) The Public Procurement Oversight Authority ishereby established as a body corporate.

(2) The Authority shall have all the powers necessaryor expedient for the performance of its functions.

(3) Without limiting the generality of subsection (2),the Authority shall have perpetual succession and acommon seal and shall be capable of

(a) suing and being sued in its corporate name; and

(b) holding and alienating moveable andimmovable property.

Functions of Authority.

9. The Authority shall have the followingfunctions

(a) to ensure that the procurement proceduresestablished under this Act are complied with;

(b) to monitor the public procurement system andreport on the overall functioning of it inaccordance with section 20(3)(b) and present tothe Minister such other reports andrecommendations for improvements as theDirector-General considers advisable;

(c) to assist in the implementation and operation of the public procurement system and in doingso

(i) to prepare and distribute manuals and


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standard documents to be used inconnection with procurement by publicentities;

(ii) to provide advice and assistance toprocuring entities;

(iii) to develop, promote and support thetraining and professional development of persons involved in procurement; and

(iv) to issue written directions to publicentities with respect to procurementincluding the conduct of procurementproceedings and the dissemination of information on procurements; and

(v) to ensure that procuring entities engageprocurement professionals in theirprocurement units.

(d) to initiate public procurement policy andpropose amendments to this Act or to theregulations; and

(e) to perform such other functions and duties asare provided for under this Act.

Director-Generalof the Authority.

10. (1) The Authority shall have a Director-Generalwho shall be the chief executive officer of the Authorityand who shall be responsible for its direction andmanagement.

(2) The Director-General shall be appointed by theAdvisory Board with the approval of Parliament.

(3) To be appointed as the Director-General, aperson must


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(a) have a university degree in commerce, businessadministration, economics, engineering or a

related field of study from a recogniseduniversity;

(b) have a professional qualification in supplymanagement from a reputable organisation;

(c) have experience in management; and

(d) be of outstanding honesty and integrity.

Term of office of Director-

General.

11. (1) The term of office of the Director-Generalshall be five years.

(2) A person who has held office as Director-Generalmay be reappointed for one further term of five years.

Restrictions onactivities of Director-General.

12. During the period of his or her appointment, theDirector-General shall not

(a) be employed in any other work or business; or

(b) hold any other public office.

Terms andconditions of service of Director- Cap.446 General

13. The terms and conditions of service of theDirector-General shall be determined by the AdvisoryBoard in accordance with the State Corporations Act.

Resignation of Director-General.

14. (1) The Director-General may resign by a writtenresignation addressed to the Advisory Board.

(2) A resignation is effective upon being receivedby the Advisory Board.

Removal of Director-General.

15. (1) The appointment of the Director-General maybe terminated only in accordance with this section.


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(2) The Advisory Board may terminate a personsappointment as the Director-General if the person

(a) is incompetent;

(b) is unable to perform the functions of his officeby reason of a mental or physical infirmity;

Cap. 63.(c) is convicted of an offence under the Penal Code

or this Act or an offence involving dishonesty;

(d) was involved in a corrupt transaction;

(e) contravenes section 12; or

(f) is adjudged bankrupt.

Staff. 16. The Authority may, upon such terms andconditions of service as the Authority may determine,employ such staff or hire the services of such consultants,experts or independent investigators as may be necessaryfor the proper performance of its functions.

Acting Director-General.

17. The Advisory Board may designate a member of the staff of the Authority to act as the Director-Generalduring the illness or absence of the Director-General orduring a vacancy in the office.

Financialarrangements.

18. (1) The financial year of the Authority shall be theperiod of twelve months ending on 30th June in eachyear.

(2) At least three months before the commencement of each financial year, the Director-General shall causeestimates of the revenue and expenditures of theAuthority for that year to be prepared and submitted tothe Advisory Board for approval.


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(d) capacity building levy of such amount of thecontract price as may be prescribed.

Audit.

No. 12 of 2003. 19. The Authority shall be audited in accordance withthe Public Audit Act, 2003.

Quarterly andannual reports.

20. (1) For each financial year, the Director-Generalshall cause four quarterly reports and one annual reportto be prepared.

(2) The Director-General shall submit each report tothe Advisory Board and to the Minister

(a) in the case of a quarterly report, within one

month after the end of the quarter to which thereport relates; or

(b) in the case of an annual report, within fourmonths after the end of the year to which thereport relates.

(3) Each report shall contain, in respect of the periodto which it relates

(a) a description of the activities of the Authority;

(b) a report on the overall functioning of the publicprocurement system;

(c) a list of each procurement for which aprocurement procedure was specially permittedunder section 92;

(d) a report on the extent of positive bias to localparticipation.

(4) In addition to what is required under subsection(3), each annual report shall include the financial


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statements of the Authority for the year to which thereport relates.

(5) The Minister shall, within thirty days afterreceiving a report, transmit it to the National Assembly.

B Public Procurement Oversight Advisory Board

Establishment of Advisory Board.

21. The Public Procurement Oversight AdvisoryBoard is hereby established as an unincorporated body.

Composition of Advisory Board.

22. (1) The Public Procurement Oversight AdvisoryBoard shall consist of

(a) nine members appointed by the Minister andapproved by Parliament from personsnominated by the prescribed organisations; and

(b) the Director-General.

(2) The First Schedule shall apply in respect of themembers of the Advisory Board.

Functions of Advisory Board.

23. The functions of the Advisory Board are

(a) to advise the Authority generally on theexercise of its powers and the performanceof its functions;

(b) to approve the estimates of the revenue andexpenditures of the Authority;

(c) to recommend the appointment ortermination of the Director-General inaccordance with this Act;

(d) to perform such other functions and duties asare provided for under this Act.


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Procedures of Advisory Board.

24. (1) The business and affairs of the Advisory Boardshall be conducted in accordance with the Second

Schedule.

(2) Except as provided in the Second Schedule, theAdvisory Board may regulate its own procedure.

(3) Five nominated members of the Advisory Boardshall constitute a quorum for the transaction of anybusiness of the Board.

(4) The Advisory Board may invite any person toattend any of its meetings and to participate in itsdeliberations, but such an invitee shall not have a vote inany decision of the Board.

C Public Procurement Administrative Review Board

Review Board.

L.N. 51/2001.

25. (1) The Public Procurement Complaints, Reviewand Appeal Board established under the Exchequer andAudit (Public Procurement) Regulations, 2001 iscontinued under this Act as the Public ProcurementAdministrative Review Board.

(2) The composition and membership of the ReviewBoard shall be in accordance with the regulations.

(3) The Authority shall provide administrativeservices to the Review Board.

PART III INTERNAL ORGANISATION OF PUBLICENTITIES RELATING TO PROCUREMENT

Threshold matrixand segregationof responsibilities.

26. (1) For the purpose of ensuring that its decisionsare made in a systematic and structured way, a publicentity shall establish procedures to provide for themaking of decisions, on behalf of the public entity,relating to procurement.


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(2) The procedures required under subsection (1)shall be consistent with this Act and the regulations.

(3) All procurement shall be

(a) within the approved budget of the procuringentity and shall be planned by the procuringentity concerned through an annualprocurement plan;

(b) undertaken by a procuring entity as per thethreshold matrix as set out in the regulations;

(c) handled by different offices in respect of procurement initiation, processing andreceipt of goods, works and services.

(4) A public entity shall establish a tendercommittee, procurement unit and such other bodies as arerequired under the regulations for the purpose of makingsuch decisions on behalf of the public entity as arespecified in this Act and the regulations.

(5) A tender committee or body established undersubsection (4) shall be established in accordance with theregulations and shall -

(a) consist of not less than five members;

(b) have as its secretary, the procurementprofessional in charge of the procurementunit.

(6) A procuring entity shall not commence anyprocurement procedure until it is satisfied that sufficientfunds have been set aside in its budget to meet theobligations of the resulting contract.


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(7) A procurement unit established undersubsection (4) shall be staffed with procurement

professionals whose qualifications have been recognisedby the Authority.

(8) For the purpose of this section, a "procurementprofessional" means a person who -

(a) has professional qualifications in procurementand supply management from a recognisedinstitution;

(b) is engaged in a calling or occupation in whichrecourse to procurement is directly orindirectly involved and has experience in thepractise of procurement; and

(c) is a member of a recognised institute of purchasing and supply.

(9) The level of qualification and experience requiredof procurement professionals under subsection (8) shallbe as prescribed.

(10) The Authority shall facilitate the establishmentof an examination body for procurement professionalsand shall ensure support for their professionalassociation.

Responsibilityfor complyingwith Act, etc.

27 .(1) A public entity shall ensure that this Act, theregulations and any directions of the Authority arecomplied with respect to each of its procurements.

(2) The accounting officer of a public entity shallbe primarily responsible for ensuring that the publicentity fulfils its obligations under subsection (1).


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(3) Each employee of a public entity and eachmember of a board or committee of the public entity shall

ensure, within the areas of responsibility of the employeeor member, that this Act, the regulations and anydirections of the Authority are complied with.

(4) Contractors, suppliers and consultants shallcomply with all the provisions of this Act and theregulations.

(5) The accounting officer may use the procurementunit and tender committee of another procuring entitywhich shall carry out the procurement in accordance withthis Act and the regulations.

(6) The Authority shall have power to transfer theprocuring responsibility of a procuring entity to anotherprocuring entity or procuring agent in the event of delayor in such other instances as may be prescribed.

Procuring agents. 28. (1) A procuring entity may appoint aprocurement agent, on competitive basis, to carry outsuch procurement proceedings on its behalf as may beprescribed.

(2) The Authority shall pre-qualify procuringagents to be engaged by a procuring entity pursuant tosubsection (1).

(3) A procuring agent shall be registered with theAuthority and where the procuring agent is undertakingprocurement on behalf of a procurement entity, theprocuring agent shall comply with the provisions of thisAct and the regulations.


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PART IV - GENERAL PROCUREMENT RULES

Choice of procurementprocedure.

29. (1) For each procurement, the procuring entityshall use open tendering under Part V or an alternativeprocurement procedure under Part VI.

(2) A procuring entity may use an alternativeprocurement procedure only if that procedure is allowedunder Part VI.

(3) A procuring entity may use restricted tenderingor direct procurement as an alternative procurementprocedure only if, before using that procedure, theprocuring entity

(a) obtains the written approval of its tendercommittee; and

(b) records in writing the reasons for using thealternative procurement procedure.

(4) A procuring entity shall use such standard tenderdocuments as may be prescribed.

Procurement notto be split orinflated.

30. (1) No procuring entity may structure procurementas two or more procurements for the purpose of avoidingthe use of a procurement procedure.

(2) Any person who contravenes the provisions of this section shall be guilty of an offence.

(3) Standard goods, services and works with knownmarket prices shall be procured at the prevailing realmarket price.

(4) Public officials involved in transactions inwhich standard goods, services and works are procured atunreasonably inflated prices shall, in addition to any

other sanctions prescribed in this Act or the regulations,


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be required to pay the procuring entity for the lossresulting from their actions.

Qualifications tobe awardedcontract.

31. (1) A person is qualified to be awarded acontract for a procurement only if the person satisfies thefollowing criteria

(a) the person has the necessary qualifications,capability, experience, resources, equipment andfacilities to provide what is being procured;

(b) the person has the legal capacity to enter into acontract for the procurement;

(c) the person is not insolvent, in receivership,bankrupt or in the process of being wound upand is not the subject of legal proceedingsrelating to the foregoing;

(d) the procuring entity is not precluded fromentering into the contract with the person undersection 33;

(e) the person is not debarred from participating inprocurement proceedings under Part IX.

(2) The procuring entity may require a person toprovide evidence or information to establish that thecriteria under subsection (1) are satisfied.

(3) The criteria under subsection (1) and anyrequirements under subsection (2) shall be set out in thetender documents or the request for proposals orquotations or, if a procedure is used to pre-qualifypersons, in the documents used in that procedure.

(4) The procuring entity shall determine whether aperson is qualified and that determination shall be done


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using the criteria and requirements set out in thedocuments or requests described in subsection (3).

(5) The procuring entity may disqualify a person forsubmitting false, inaccurate or incomplete informationabout his qualifications.

(6) No person shall be excluded from submitting atender, proposal or quotation in procurement proceedingsexcept under this section and under section 39.

(7) Procuring entities shall use creative approaches,such as design and build in order to enhance efficiency of the procurement process and project implementation .

Pre-qualificationprocedures.

32. To identify qualified persons a procuring entitymay use a pre-qualification procedure or may use theresults of a pre-qualification procedure used by anotherpublic entity.

Limitation oncontracts withemployees, etc.

33. (1) Except as expressly allowed under theregulations, a procuring entity shall not enter into acontract for a procurement with

(a) an employee of the procuring entity or amember of a board or committee of theprocuring entity;

(b) a Minister, public servant or a member of aboard or committee of the Government or anydepartment of the Government or a personappointed to any position by the President or aMinister; or

(c) a person, including a corporation, who is relatedto a person described in paragraph (a) or (b).

(2) Whether a person is related to another person for


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the purpose of subsection (1)(c) shall be determined inaccordance with the regulations.

Specificrequirements. 34. (1) The procuring entity shall prepare specificrequirements relating to the goods, works or services

being procured that are clear, that give a correct andcomplete description of what is to be procured and thatallow for fair and open competition among those whomay wish to participate in the procurement proceedings.

(2) The specific requirements shall include all theprocuring entitys technical requirements with respect tothe goods, works or services being procured.

(3) The technical requirements shall, whereappropriate

(a) relate to performance rather than to design ordescriptive characteristics; and

(b) be based on national or internationalstandards.

(4) The technical requirements shall not refer to aparticular trademark, name, patent, design, type,producer or service provider or to a specific originunless

(a) there is no other sufficiently precise orintelligible way of describing the requirements;and

(b) the requirements allow equivalents to what isreferred to.

Verification thatnot debarred.

35. A tender, proposal or quotation submitted by aperson shall include a statement verifying that the personis not debarred from participating in procurement


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proceedings under Part IX and a declaration that theperson will not engage in any corrupt practice.

Termination of procurementproceedings.

36. (1) A procuring entity may, at any time, terminateprocurement proceedings without entering into acontract.

(2) The procuring entity shall give prompt notice of a termination to each person who submitted a tender,proposal or quotation or, if direct procurement was beingused, to each person with whom the procuring entity wasnegotiating.

(3) On the request of a person described insubsection (2), the procuring entity shall give its reasonsfor terminating the procurement proceedings withinfourteen days of the request.

(4) If the procurement proceedings involved tendersand the proceedings are terminated before the tenders areopened, the procuring entity shall return the tendersunopened.

(5) The procuring entity shall not be liable to anyperson for a termination under this section.

(6) A termination under this section shall not bereviewed by the Review Board or a court.

(7) A public entity that terminates procurementproceedings shall give the Authority a written report onthe termination.

(8) A report under subsection (7) shall include thereasons for the termination and shall be made inaccordance with any directions of the Authority withrespect to the contents of the report and when it is due.


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Form of communications.

37. (1) If the procurement procedure used is open orrestricted tendering or a request for proposals,communications between the procuring entity and a

person seeking a contract for the procurement shall be inwriting.

(2) If the procurement procedure used is directprocurement or a request for quotations, communicationsbetween the procuring entity and a person seeking acontract for the procurement shall either be

(a) in writing; or

(b) referred to and confirmed in writing.

(3) To the extent allowed under written directionsof the Authority, electronic communications may be usedinstead of written communications.

Inappropriateinfluence onevaluations, etc.

38. (1) After the deadline for the submission of tenders, proposals or quotations

(a) no person who submitted a tender, proposal orquotation shall make any unsolicitedcommunications to the procuring entity or anyperson involved in the procurement proceedingsthat might reasonably be construed as anattempt to influence the evaluation andcomparison of tenders, proposals or quotations;and

(b) no person who is not officially involved in theevaluation and comparison of tenders, proposalsor quotations shall attempt, in any way, toinfluence that evaluation and comparison.

(2) A person who contravenes subsection (1) is guiltyof an offence and is liable on conviction


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(a) if the person is an individual, to a fine notexceeding four million shillings or to

imprisonment for a term not exceeding threeyears or to both; or

(b) if the person is a corporation, to a fine notexceeding ten million shillings.

Participation inprocurement.

39. (1) Candidates shall participate in procurementproceedings without discrimination except whereparticipation is limited in accordance with this Act andthe regulations.

(2) Subject to subsection (8), the Minister shall, inconsideration of economic and social developmentfactors, prescribe preferences and or reservations inpublic procurement and disposal.

(3) The preferences and reservations referred to insubsection (2) shall -

(a) be non-discriminatory in respect of the targetedgroups;

(b) allow competition amongst the eligible;

(c) be monitored and evaluated.

(4) The preferences and reservations shall apply to

(a) candidates such as disadvantaged groups, micro,small and medium enterprises;

(b) works, services and goods, or any combinationthereof;

(c) identified regions; and


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(d) such other categories as may be prescribed.

(5) A procuring entity shall, when processingprocurement, comply with the provisions of this Act andthe regulations in respect of preferences and reservations.

(6) To qualify for a specific preference or reservation,a candidate shall provide evidence of eligibility.

(7) The Authority shall maintain an up-to-dateregister of contractors in works, goods and services, or any combination thereof, in order to be cognizant at alltimes of the workload and performance record.

(8) In applying the preferences and reservationsunder this section -

(a) exclusive preference shall be given to citizensof Kenya where

(i) the funding is 100% from the Governmentof Kenya or a Kenyan body; and

(ii) the amounts are below the prescribedthreshold.

(b) a prescribed margin of preference may be given -

(i) in the evaluation of bids to candidatesoffering goods manufactured, mined,extracted and grown in Kenya; or

(ii) works, goods and services where apreference may be applied depending onthe percentage of shareholding of thelocals on a graduating scale as prescribed.


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Corrupt practice. 40. (1) No person, agent or employee shall be involvedin any corrupt practice in any procurement proceeding.

(2) If a person or an employee or agent of a personcontravenes subsection (1) the following shall apply

(a) the person shall be disqualified from enteringinto a contract for the procurement; or

(b) if a contract has already been entered into withthe person, the contract shall be voidable at theoption of the procuring entity.

(3) The voiding of a contract by the procuring entityunder subsection (2)(b) does not limit any other legal

remedy the procuring entity may have.

(4) A person, employee or agent who contravenessubsection (1) shall be guilty of an offence.

Fraudulentpractice.

41. (1) No person shall be involved in a fraudulentpractice in any procurement proceeding.

(2) If a person contravenes subsection (1) thefollowing shall apply

(a) the person shall be disqualified from enteringinto a contract for the procurement; or

(b) if a contract has already been entered into withthe person, the contract shall be voidable at theoption of the procuring entity.

(3) The voiding of a contract by the procuring entityunder subsection (2)(b) does not limit any other legalremedy the procuring entity may have.

(4) A person who contravenes subsection (1) shall beguilty of an offence.


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Collusion. 42. (1) No person shall collude or attempt to colludewith any other person

(a) to make any proposed price higher than wouldotherwise have been the case;

(b) to have that other person refrain fromsubmitting a tender, proposal or quotation orwithdraw or change a tender, proposal orquotation; or

(c) to submit a tender, proposal or quotation with aspecified price or with any specified inclusionsor exclusions.

(2) If a person contravenes subsection (1) thefollowing shall apply

(a) both persons referred to in subsection (1) shallbe disqualified from entering into a contract forthe procurement; or

(b) if a contract has already been entered into witheither person referred to in subsection (1), thecontract shall be voidable at the option of theprocuring entity.

(3) The voiding of a contract by the procuring entityunder subsection (2)(b) does not limit any other legalremedy the procuring entity may have.

(4) A person who contravenes subsection (1) shall beguilty of an offence.

Conflicts of interest.

43. (1) An employee or agent of the procuring entityor a member of a board or committee of the procuringentity who has a conflict of interest with respect to aprocurement


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(a) shall not take part in the procurementproceedings; and

(b) shall not, after a procurement contract has beenentered into, take part in any decision relatingto the procurement or contract.

(2) An employee, agent or member described insubsection (1) who refrains from doing anythingprohibited under that subsection that, but for thatsubsection, would have been within his duties shalldisclose the conflict of interest to the procuring entity.

(3) If a person contravenes subsection (1) withrespect to a conflict of interest described in subsection(5)(a) and the contract is awarded to the person or hisrelative or to another person in whom one of them had adirect or indirect pecuniary interest, the contract shall bevoidable at the option of the procuring entity.

(4) The voiding of a contract by the procuring entityunder subsection (3) does not limit any other legalremedy the procuring entity may have.

(5) For the purpose of this section, a person has aconflict of interest with respect to a procurement if theperson or a relative of the person

(a) seeks, or has a direct or indirect pecuniaryinterest in another person who seeks, a contractfor the procurement; or

(b) owns or has a right in any property or has adirect or indirect pecuniary interest that resultsin the private interest of the person conflictingwith his duties with respect to the procurement.


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(6) In this section, relative means

(a) a spouse, child, parent, brother or sister;

(b) a child, parent, brother or sister of a spouse; or

(c) any other prescribed relative.

(7) For the purpose of subsection (5), the followingare persons seeking a contract for a procurement

(a) a person submitting a tender, proposal orquotation; or

(b) if direct procurement is being used, a personwith whom the procuring entity is negotiating.

(8) Any person who contravenes the provisions of this section shall be guilty of an offence.

Confidentiality. 44. (1) During or after procurement proceedings, noprocuring entity and no employee or agent of theprocuring entity or member of a board or committee of the procuring entity shall disclose the following

(a) information relating to a procurement whosedisclosure would impede law enforcement orwhose disclosure would not be in the publicinterest;

(b) information relating to a procurement whosedisclosure would prejudice legitimatecommercial interests or inhibit fair competition;

(c) information relating to the evaluation,comparison or clarification of tenders, proposalsor quotations; or


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(b) if a procedure other than open tendering wasused, the reasons for doing so;

(c) if, as part of the procurement procedure,anything was advertised in a newspaper or otherpublication, a copy of that advertisement as itappeared in that newspaper or publication;

(d) for each tender, proposal or quotation that wassubmitted

(i) the name and address of the personmaking the submission; and

(ii) the price, or basis of determining theprice, and a summary of the otherprincipal terms and conditions of thetender, proposal or quotation;

(e) a summary of the evaluation and comparison of the tenders, proposals or quotations, includingthe evaluation criteria used;

(f) if the procurement proceedings were terminatedwithout resulting in a contract, an explanation of why they were terminated;

(g) a copy of every document that this Act requiresthe procuring entity to prepare; and

(h) such other information or documents as areprescribed.

(3) After a contract has been awarded or theprocurement proceedings have been terminated, theprocuring entity shall, on request, make the records forthe procurement available to a person who submitted a


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tender, proposal or quotation or, if direct procurementwas used, a person with whom the procuring entity wasnegotiating.

(4) The procuring entity may charge a fee formaking the records available but the fee shall not exceedthe costs of making the records available.

(5) No disclosure shall be made under subsection (3)that would be contrary to section 44(1), but a disclosure,under subsection (3), of anything described in paragraphs(a) to (f) of subsection (2) shall be deemed not to becontrary to paragraphs (b) to (d) of section 44(1).

(6) A procuring entity shall maintain a proper filingsystem with clear links between procurement andexpenditure files.

Publication of procurementcontracts.

46. (1) The Authority shall publish notices of thecontracts awarded by procuring entities together withsuch other information as may be prescribed.

(2) The Authority shall issue directions governing thepublication of notices under this section, includingdirections specifying what must be included in a noticeand how it must be published.

Amendments tocontracts.

47. An amendment to a contract resulting from theuse of open tendering or an alternative procurementprocedure under Part VI is effective only if

(a) the amendment has been approved in writing bythe tender committee of the procuring entity; and

(b) any contract variations are based on theprescribed price or quantity variations for goods,works and services .


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Invitation totender.

51. The procuring entity shall prepare an invitationto tender that sets out the following

(a) the name and address of the procuring entity;

(b) the tender number assigned to the procurementproceedings by the procuring entity;

(c) a brief description of the goods, works orservices being procured including the time limitfor delivery or completion;

(d) an explanation of how to obtain the tenderdocuments, including the amount of any fee;

(e) an explanation of where and when tenders mustbe submitted and where and when the tenderswill be opened; and

(f) a statement that those submitting tenders ortheir representatives may attend the opening of tenders.

Tender

documents.52. (1) The procuring entity shall prepare tender

documents in accordance with this section and theregulations.

(2) The tender documents shall contain enoughinformation to allow fair competition among those whomay wish to submit tenders.

(3) The tender documents shall set out thefollowing

(a) the specific requirements prepared under section34 relating to the goods, works or services


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being procured and the time limit for delivery orcompletion;

(b) if works are being procured, relevant drawingsand bills of quantities;

(c) the general and specific conditions to which thecontract will be subject, including anyrequirement that performance security beprovided before the contract is entered into;

(d) the tender number assigned to the procurementproceedings by the procuring entity;

(e) instructions for the preparation and submission

of tenders including

(i) the forms for tenders;

(ii) the number of copies to be submittedwith the original tender;

(iii) any requirement that tender security beprovided and the form and amount of any such security; and

(iv) any requirement that evidence beprovided of the qualifications of theperson submitting the tender;

(f) an explanation of where and when tenders mustbe submitted, a statement that the tenders willbe opened immediately after the deadline forsubmitting them and an explanation of wherethe tenders will be opened;

(g) a statement that those submitting tenders ortheir representatives may attend the opening of tenders;


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(h) a statement of the period during which tendersmust remain valid;

(i) the procedures and criteria to be used toevaluate and compare the tenders;

(j) a statement that the procuring entity may, at anytime, terminate the procurement proceedingswithout entering into a contract; and

(k) anything else required, under this Act or theregulations, to be set out in the tenderdocuments.

Modifications totenderdocuments.

53. (1) A procuring entity may amend the tenderdocuments at any time before the deadline for submittingtenders by issuing an addendum.

(2) An amendment may be made on the procuringentitys own initiative or in response to an inquiry.

(3) The procuring entity shall promptly provide acopy of the addendum to each person to whom theprocuring entity provided copies of the tenderdocuments.

(4) The addendum shall be deemed to be part of thetender documents.

Advertisement. 54. (1) The procuring entity shall take such steps asare reasonable to bring the invitation to tender to theattention of those who may wish to submit tenders.

(2) If the estimated value of the goods, works orservices being procured is equal to, or more than theprescribed threshold for national advertising, the

procuring entity shall advertise, at least twice in a


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newspaper of general nationwide circulation which hasbeen regularly published for at least two years before thedate of issue of the advertisement, and on its website in

instances where the procuring entity has a website, andthe advertisement shall also be posted at any conspicuousplace reserved for this purpose in the premises of theprocuring entity as certified by the head of theprocurement unit.

Time forpreparingtenders.

55. (1) The time allowed for the preparation of tenders must not be less than the minimum period of timeprescribed for the purpose of this subsection.

(2) For the purpose of this section, the time allowedfor the preparation of tenders is the period of timebetween whatever steps the procuring entity takes tobring the invitation to tender to the attention of thosewho may wish to submit tenders and the deadline forsubmitting tenders.

(3) If the tender documents are amended undersection 53 when the time remaining before the deadlinefor submitting tenders is less than one third of the timeallowed for the preparation of tenders, the procuringentity shall extend the deadline as necessary to allow theamendment of the tender documents to be taken into

account in the preparation or amendment of tenders.Provision of tenderdocuments.

56. (1) The procuring entity shall provide copies of the tender documents expeditiously and in accordancewith the invitation to tender.

(2) The procuring entity may charge such fees asmay be prescribed for copies of the tender documents.

Tender security. 57. (1) A procuring entity may require that tendersecurity be provided with tenders.

(2) The procuring entity may determine the form and


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amount of the tender security, subject to suchrequirements or limits as may be prescribed.

(3) Tender security shall be forfeited if the personsubmitting the tender

(a) withdraws the tender after the deadline forsubmitting tenders but before the expiry of theperiod during which tenders must remain valid;

(b) rejects a correction of an arithmetic error undersection 63; or

(c) refuses to enter into a written contract asrequired under section 68 or fails to furnish anyrequired performance security.

(4) The procuring entity shall immediately releaseany tender security if

(a) the procurement proceedings are terminated;

(b) the procuring entity determines that none of thesubmitted tenders is responsive; or

(c) a contract for the procurement is entered into.

Submission andreceipt of tenders.

58. (1) A tender must be in writing, it must be signedand it must be sealed in an envelope.

(2) A tender and the envelope it is sealed in mustbear the tender number assigned to the procurementproceedings by the procuring entity.

(3) A tender must be submitted before the deadlinefor submitting tenders and any tender received after thatdeadline shall be returned unopened.


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(4) The procuring entity shall ensure that the placewhere tenders must be submitted is open and accessibleand shall provide, in that place, a tender box that

complies with the prescribed requirements.

(5) Each tender that is delivered shall be placedunopened in the tender box

(a) if the tender is delivered by post, by the staff of the procuring entity immediately upon receipt;or

(b) if the tender is delivered otherwise than by post,by the person delivering the tender.

(6) If a tender that is delivered by post isinadvertently opened, the fact of that opening shall berecorded on the envelope by the person who opened thetender and then the tender shall be placed in the tenderbox.

(7) If a tender or part of a tender is too large to beplaced in the tender box it shall be received in themanner set out in the tender documents or the invitationto tender or, if no such manner is set out, in the mannerdetermined by the procuring entity.

Changes totenders.

59. (1) Before the deadline for submitting tenders, aperson who submitted a tender may change or withdrawit in accordance with the following

(a) the change or withdrawal must be in writing;and

(b) the change or withdrawal must be submittedbefore the deadline for submitting tenders andin accordance with the procedures forsubmitting tenders.


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(2) After the deadline for submitting tenders, a personwho submitted a tender shall not change, or offer to

change, the substance of the tender.

(3) The procuring entity shall not attempt to have thesubstance of a tender changed.

Opening of tenders.

60. (1) The accounting officer shall appoint a tenderopening committee specifically for the procurement inaccordance with the following requirements and suchother requirements as may be prescribed

(a) the committee shall have at least threemembers; and

(b) at least one of the members shall not bedirectly involved in the processing orevaluation of the tenders.

(2) Immediately after the deadline for submittingtenders, the tender opening committee shall open alltenders received before that deadline.

(3) Those submitting tenders or their representativesmay attend the opening of tenders.

(4) The tender opening committee shall assign anidentification number to each tender.

(5) As each tender is opened, the following shall beread out loud and recorded in a document to be called thetender opening register

(a) the name of the person submitting the tender;

(b) the total price of the tender including anymodifications or discounts received before the


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deadline for submitting tenders except as may be prescribed; and

(c) if applicable, what has been given as tendersecurity.

(6) The procuring entity shall, on request, provide acopy of the tender opening register to a personsubmitting a tender.

(7) Each member of the tender opening committeeshall

(a) sign each tender on one or more pages asdetermined by the tender opening committee;and

(b) initial, in each tender, against the quotation of the price and any modifications or discounts.

(8) The tender opening committee shall preparetender opening minutes which shall set out

(a) a record of the procedure followed in opening thetenders; and

(b) the particulars of those persons submittingtenders, or their representatives, who attendedthe opening of the tenders.

(9) Each member of the tender opening committeeshall sign the tender opening minutes.

Extension of tender validityperiod.

61. (1) Before the expiry of the period during whichtenders must remain valid the procuring entity mayextend that period.

(2) The procuring entity shall give notice of an


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(b) errors or oversights that can be corrected withoutaffecting the substance of the tender.

(3) A deviation described in subsection (2)(a)shall

(a) be quantified to the extent possible; and

(b) be taken into account in the evaluation andcomparison of tenders.

Notification if noresponsivetenders.

65. If the procuring entity determines that none of the submitted tenders is responsive, the procuring entityshall notify each person who submitted a tender.

Evaluation of tenders.

66. (1) The procuring entity shall evaluate andcompare the responsive tenders other than tendersrejected under section 63(3).

(2) The evaluation and comparison shall be doneusing the procedures and criteria set out in the tenderdocuments and no other criteria shall be used.

(3) The following requirements shall apply withrespect to the procedures and criteria referred to insubsection (2)

(a) the criteria must, to the extent possible, beobjective and quantifiable; and

(b) each criterion must be expressed so that it isapplied, in accordance with the procedures,taking into consideration price, quality andservice for the purpose of evaluation.

(4) The successful tender shall be the tender with thelowest evaluated price.


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(5) The procuring entity shall prepare an evaluationreport containing a summary of the evaluation andcomparison of tenders.

(6) The evaluation shall be carried out within suchperiod as may be prescribed.

Notification of award of contract.

67. (1) Before the expiry of the period during whichtenders must remain valid, the procuring entity shallnotify the person submitting the successful tender that histender has been accepted.

(2) At the same time as the person submitting thesuccessful tender is notified, the procuring entity shallnotify all other persons submitting tenders that their

tenders were not successful.

(3) For greater certainty, a notification undersubsection (2) does not reduce the validity period for atender or tender security.

Creation of contract.

68. (1) The person submitting the successful tenderand the procuring entity shall enter into a written contractbased on the tender documents, the successful tender, anyclarifications under section 62 and any corrections undersection 63.

(2) The written contract shall be entered into withinthe period specified in the notification under section67(1) but not until at least fourteen days have elapsedfollowing the giving of that notification.

(3) No contract is formed between the personsubmitting the successful tender and the procuring entityuntil the written contract is entered into.

Refusal to signcontract.

69. (1) If the person submitting the successful tenderrefuses to enter into a written contract as required undersection 68, the procuring entity shall notify, under section


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67(1), the person who submitted the tender that,according to the evaluation under section 66, would havebeen successful had the successful tender not been

submitted.(2) Section 67(2), section 68 and this section apply,

with necessary modifications, with respect to the tenderof the person notified under subsection (1).

(3) This section does not apply if the period duringwhich tenders must remain valid has already expired.

Changes tocontractresponsibilities.

70. The procuring entity shall not request or require,as a condition of awarding a contract that a person whosubmitted a tender undertake responsibilities not set out

in the tender documents.Internationaltendering.

71. If there will not be effective competition for aprocurement unless foreign persons participate, thefollowing shall apply

(a) the invitation to tender and the tenderdocuments must be in English;

(b) if the procuring entity is required to advertise theinvitation to tender under section 54(2), theprocuring entity shall also advertise the

invitation to tender in one or more English-language newspapers or other publications that,together, have sufficient circulation outsideKenya to allow effective competition for theprocurement;

(c) the period of time between the advertisementunder paragraph (b) and the deadline forsubmitting tenders must be not less than theminimum period of time prescribed for thepurpose of this paragraph;

(d) the technical requirements must, to the extent


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compatible with requirements under Kenyan law,be based on international standards or standardswidely used in international trade;

(e) a person submitting a tender may, in quotingprices or providing security, use a currency thatis widely used in international trade and that thetender documents specifically allow to be used;and

(f) any general and specific conditions to which thecontract will be subject must be of a kindgenerally used in international tendering.

P ART VI ALTERNATIVE P ROCUREMENT P ROCEDURES

Part sets outrequirements.

72. This Part sets out the requirements for theprocurement procedures that are alternatives to opentendering.

A Restricted tendering

When restricted tendering maybe used.

73. (1) A procuring entity may engage in procurementby means of restricted tendering in such manner as maybe prescribed.

(2) A procuring entity may use restricted tenderingif the following conditions are satisfied -

(a) competition for contract, because of the complexor specialised nature of the goods, works orservices is limited to prequalified contractors:

(b) the time and cost required to examine andevaluate a large number of tenders would bedisproportionate to the value of the goods,works or services to be procured; and

there is only a few known suppliers of the


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(c) the qualifications necessary to be invited tosubmit a proposal; and

(d) an explanation of where and when expressionsof interest must be submitted.

(3) The procuring entity shall advertise the noticeinviting expressions of interest in at least two dailynewspapers of nation-wide circulation.

Terms of reference.

79. The procuring entity shall prepare terms of reference that set out the following

(a) the specific requirements prepared undersection 34 relating to the services and, if applicable, the goods being procured and thetime limit for delivery or completion; and

(b) anything else required under the regulations tobe set out in the terms of reference.

Determination of qualifiedpersons.

80 . After the deadline for submitting expressions of interest the procuring entity shall examine eachexpression of interest to determine if the personsubmitting it is qualified to be invited to submit aproposal in accordance with the notice invitingexpressions of interest.

Request forproposals toqualifiedpersons.

81. (1) The procuring entity shall give each personwho it determines is qualified to be invited to submit aproposal a request for proposals and a copy of the termsof reference.

(2) The request for proposals shall set out thefollowing


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(b) the general and specific conditions to whichthe contract will be subject,

(c) instructions for the preparation andsubmission of proposals which shall requirethat a proposal include a technical proposaland a financial proposal;

(d) an explanation of where and when proposalsmust be submitted;

(e) the procedures and criteria to be used toevaluate and compare the proposalsincluding

(i) the procedures and criteria for evaluatingthe technical proposals which shallinclude a determination of whether theproposal is responsive;

(ii) the procedures and criteria for evaluatingthe financial proposals; and

(iii) any other additional method of evaluation, which may includeinterviews or presentations, and theprocedures and criteria for thatadditional method;

(f) a statement giving notice of the restriction, insection 87, on entering into other contracts;and

(g) anything else required, under this Act or theregulations to be set out in the request forproposals.


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Evaluation of proposals.

82. (1) The procuring entity shall examine theproposals received in accordance with the request forproposals.

(2) For each proposal, the procuring entity shallevaluate the technical proposal to determine if it isresponsive and, if it is, the procuring entity shall assign ascore to the technical proposal, in accordance with theprocedures and criteria set out in the request forproposals.

(3) For each proposal that is determined, undersubsection (2), to be responsive, the procuring entityshall evaluate and assign a score to the financialproposal, in accordance with the procedures and criteriaset out in the request for proposals.

(4) If the request for proposals provides foradditional methods of evaluation, the procuring entityshall conduct such methods in accordance with theprocedures and criteria set out in the request forproposals.

(5) The successful proposal shall be the responsiveproposal with the highest score determined by theprocuring entity by combining, for each proposal, inaccordance with the procedures and criteria set out in therequest for proposals, the scores assigned to the technicaland financial proposals under subsections (2) and (3) andthe results of any additional methods of evaluation undersubsection (4).

Notification of successfulproposal.

83. (1) The procuring entity shall notify the personwho submitted the successful proposal that his proposalwas successful.

(2) At the same time as the person who submittedthe successful proposal is notified, the procuring entity


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shall notify all other persons who submitted proposalsthat their proposals were not successful.

Negotiationswith submitter of successfulproposal.

84. (1) The procuring entity may negotiate with theperson who submitted the successful proposal and mayrequest and permit changes, subject to section 85(2).

(2) If the negotiations with the person whosubmitted the successful proposal do not result in acontract the procuring entity may negotiate with theperson who submitted the proposal that would have beensuccessful had the successful proposal not beensubmitted and subsection (1) and this subsection apply,with necessary modifications, with respect to thosenegotiations.

Contractrequirements.

85. (1) This section shall apply with respect to thecontract resulting from a procurement by a request forproposals.

(2) The contract may not vary from the requirementsof the terms of reference, the request for proposals or theterms of the successful proposal except in accordancewith the following

(a) the contract may provide for a different pricebut only if there is a proportional increase orreduction in what is to be provided under thecontract; and

(b) the variations must be such that if the proposal,with those variations, was evaluated again undersection 83, the proposal would still be thesuccessful proposal.

(3) The contract must be in writing.

(4) The contract must set out either


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(a) the maximum amount of money that can be paid

under the contract; or

(b) the maximum amount of time that can be paidfor under the contract.

Internationalcompetition.

86. If there will not be effective competition unlessforeign persons participate, the following shall apply

(a) the notice inviting expressions of interest and therequest for proposals must be in English;

(b) in addition to the advertisement requiredunder section 54(2), the procuring entity shallalso advertise the notice inviting expressionsof interest in one or more English-languagenewspapers or other publications that,together, have sufficient circulation outsideKenya to allow effective competition for theprocurement;

(c) the technical requirements must, to the extentcompatible with requirements under Kenyanlaw, be based on international standards orstandards widely used in international trade;

(d) a person submitting a proposal may, inquoting prices or providing security, use acurrency that is widely used in internationaltrade and that the request for proposalsspecifically allows to be used; and

(e) any general and specific conditions to whichthe contract will be subject must be of a kindgenerally used in international trade.


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Restriction onentering intocertain relatedcontracts.

87. A person who enters into a contract resultingfrom a procurement by a request for proposals shall notenter into any other contract for the procurement of

goods or works that follows from or is related to thatoriginal contract.

D - Request for quotations

When may beused.

88. A procuring entity may use a request forquotations for a procurement if

(a) the procurement is for goods that are readilyavailable and for which there is an establishedmarket; and

(b) the estimated value of the goods being procuredis less than or equal to the prescribed maximumvalue for using requests for quotations.

Procedure. 89. (1) This section sets out the procedure for aprocurement using a request for quotations.

(2) The procuring entity shall prepare a request forquotations that sets out the following


(b) the specific requirements prepared under section34 relating to the goods being procured;

(c) an explanation of where and when quotationsmust be submitted; and

(d) anything else required under this Act or theregulations to be set out in the request forquotations.

(3) The procuring entity shall deal with the request


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for quotations in accordance with the following

(a) the procuring entity shall give the request to

such persons as the procuring entity determines;

(b) the request must be given to as many persons asnecessary to ensure effective competition andmust be given to at least three persons, unlessthat is not possible; and

(c) the procuring entity shall give the request to eachperson early enough so that the person hasadequate time to prepare a quotation.

(4) The successful quotation shall be the quotationwith the lowest price that meets the requirements set outin the request for quotations.

(5) The following shall apply with respect to thecontract resulting from a procurement by a request forquotations

(a) the procuring entity shall place a purchase orderwith the person submitting the successfulquotation; and

(b) the person submitting the successful quotationshall confirm the purchase order in writing.

(6) If there will not be effective competition unlessforeign persons participate, the following shall apply

(a) the request for quotations must be in English;

(b) the technical requirements must, to the extentcompatible with requirements under Kenyan law,be based on international standards or standardswidely used in international trade;


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(c) a person submitting a quotation may, in quotingprices or providing security, use a currency that

is widely used in international trade and that therequest for quotations specifically allows to beused; and

(d) any general and specific conditions to which thecontract will be subject must be of a kindgenerally used in international trade.

E - Procedure for low-value procurements

When may beused.

90. (1) A procuring entity may use a low-valueprocurement procedure if

(a) the estimated value of the goods, works orservices being procured are less than or equal tothe prescribed maximum value for that low-valueprocurement procedure; and

(b) any other prescribed conditions for the use of thelow-value procurement procedure are satisfied.

(2) A regulation prescribing a maximum value for alow-value procurement procedure or prescribingconditions for the use of such a procedure may prescribedifferent values or conditions for different classes of public entities or different classes of goods, works orservices being procured.

Procedure. 91. (1) The procedure for a low-value procurementshall be as prescribed.

(2) A regulation prescribing a low-value procurementprocedure may

(a) prescribe different procedures for different


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subsection (1), the Authority may exempt the procedurefrom the application of a provision of Part IV or vary theapplication of such a provision.

P ART VII - ADMINISTRATIVE R EVIEW OFP ROCUREMENT P ROCEEDINGS

Request for areview.

93 .(1) Subject to the provisions of this Part, anycandidate who claims to have suffered or to risk suffering, loss or damage due to the breach of a dutyimposed on a procuring entity by this Act or the regulations, may seek administrative review as in suchmanner as may be prescribed.

(2) The following matters shall not be subject to thereview under subsection (1)-

(a) the choice of a procurement procedure pursuantto Part IV;

(b) a decision by the procuring entity under section36 to reject all tenders, proposals or quotations;

(c) where a contract is signed in accordance tosection 68; and

(d) where an appeal is frivolous.

Suspension of proceedings, etc.

94 Upon receiving a request for a review undersection 93, the secretary to the Review Board shall notifythe procuring entity of the pending review and thesuspension of the procurement proceedings in suchmanner as may be prescribed.

Dismissal of frivolousrequests, etc.

95. The Review Board may dismiss a request for areview if the Review Board is of the opinion that therequest is frivolous or vexatious or was made solely for

the purpose of delaying the procurement proceedings orthe procurement.


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Parties to review. 96. The parties to a review shall be

(a) the person who requested the review;

(b) the procuring entity;

(c) if the procuring entity has notified a personthat the persons tender, proposal or quotationwas successful, that person; and

(d) such other persons as the Review Board maydetermine.

Completion of review.

97 .(1) The Review Board shall complete its reviewwithin thirty days after receiving the request for the

review.

(2) In no case shall any appeal under this Act stay ordelay the procurement process beyond the time stipulatedin the Act or the regulations.

Powers of Review Board.

98. Upon completing a review the Review Boardmay do any one or more of the following

(a) annul anything the procuring entity has done inthe procurement proceedings, includingannulling the procurement proceedings in theirentirety;

(b) give directions to the procuring entity withrespect to anything to be done or redone in theprocurement proceedings;

(c) substitute the decision of the Review Board forany decision of the procuring entity in theprocurement proceedings; and

(d) order the payment of costs as between parties tothe review.


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Right to reviewis additionalright.

99. The right to request a review under this Part is inaddition to any other legal remedy a person may have.

Right to judicialreview toprocurement.

100 .(1) A decision made by the Review Board shall,be final and binding on the parties unless judicial reviewthereof commences within fourteen days from the dateof the Review Boards decision.

(2) Any party to the review aggrieved by thedecision of the Review Board may appeal to the HighCourt . and the decision of the High Court shall be final.

(3) A party to the review which disobeys thedecision of the Review Board or the High Court shall be

in breach of this Act and any action by such partycontrary to the decision of the Review Board or the HighCourt shall be null and void.

(4) If judicial review is not declared by the HighCourt within thirty days from the date of filing, thedecision of the Review Board shall take effect.

P ART VIII - AUTHORITY P OWERS TO E NSUREC OMPLIANCE

Information toAuthority. 101. A public entity shall provide the Authority with

such information relating to procurement as the Director-General may require in writing.

Investigations. 102. (1) The Director-General may order aninvestigation of procurement proceedings for the purposeof determining whether there has been a breach of thisAct, the regulations or any directions of the Authority.

(2) An investigation shall be conducted by aninvestigator appointed for the purpose by the Director-

General.


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has been a breach of this Act, the regulations or anydirections of the Authority, the Director-General may, byorder, do any one or more of the following

(a) direct the procuring entity to take such actionsas are necessary to rectify the contravention;

(b) cancel the procurement contract, if any;

(c) terminate the procurement proceedings; or

No.3 of 2001.

(d) prepare and submit a summary of theinvestigators findings and recommendations tothe procuring entity and to the Kenya Anti-Corruption Commission established under the

Anti-Corruption and Economic Crimes Act2003.

(2) Before making an order under subsection (1), theDirector-General shall give the following persons anopportunity to make representations

(a) the procuring entity; and

(b) any other person whose legal rights the Director-General believes may be adversely affected bythe order.

Request for areview.

106. (1) The procuring entity and any other personwho was entitled to be given an opportunity to makerepresentations under section 105(2) may request theReview Board to review the order of the Director-General under section 109.

(2) A request for a review may only be made withintwenty-one days after the order was made.

(3) A request for a review shall be accompanied by

the prescribed fee.


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Dismissal of frivolousrequests, etc.

107. The Review Board may dismiss a request for areview if the Review Board is of the opinion that the

request is frivolous or vexatious.Convening of review.

108. The Review Board shall meet to conduct areview within twenty-one days after receiving the requestfor the review.

Parties to review. 109. The parties to a review are

(a) the person who requested the review;

(b) the procuring entity; and.

(c) such other persons as the Review Board maydetermine.

Completion of review.

110. The Review Board shall complete its reviewwithin thirty days after receiving the request for thereview.

Powers of Review Board.

111. Upon completing a review the Review Boardmay do any or both of the following

(a) confirm, vary or overturn the Director-

Generals order; and

(b) order the payment of costs as between parties tothe review.

Appeals. 112. A party to the review may appeal against thedecision of the Review Board to the High Court withinfourteen days after the decision is made.

Right to reviewis additionalright.

113. The right to request a review under section 106is in addition to any other legal remedy a

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Public Procurement and Disposal Act, 2005

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