Related documents
- Is amended by 24th Annual Supplement
LAWS OF KENYA
PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT
CAP. 412C
- Published in Kenya Gazette Vol. CXVIII—No. 2 on 8 January 2016
- Assented to on 18 December 2015
- Commenced on 7 January 2016
- [Amended by Public Procurement and Asset Disposal Act Corrigenda (Corrigendum 60 of 2016) on 6 May 2016]
- [Amended by Public Procurement and Asset Disposal Act Corrigenda (Corrigendum 73 of 2016) on 27 May 2016]
- [Amended by Finance Act, 2017 (Act No. 15 of 2017) on 1 July 2017]
- [Amended by Public Procurement and Asset Disposal (Amendment) Act, 2022 (Act No. 32 of 2022) on 26 July 2022]
- [Revised by 24th Annual Supplement (Legal Notice 221 of 2023) on 31 December 2022]
Part I – PRELIMINARY
1. Short title
This Act may be cited as the Public Procurement and Asset Disposal Act.2. Interpretation
In this Act, unless the context otherwise requires—"accounting officer" has the meaning assigned to it under section 2 of the Public Finance Management Act (Cap. 412A);"appeal" means a request for administrative review or complaint filed with the Appeals Review Board pursuant to section 167 of this Act;"assets" means movable and immovable property, tangible and intangible, including immovable property, stores, equipment, land, buildings, animals, inventory, stock, natural resources like wildlife, intellectual rights vested in the state or proprietary rights;"Authority" means the Public Procurement Regulatory Authority established under section 8 of this Act;"Board" means the Public Procurement Regulatory Board established under section 10 of this Act;"Cabinet Secretary" means the Cabinet Secretary for the time being responsible for matters relating to finance;"candidate" means a person who has obtained the tender documents from a public entity pursuant to an invitation notice by a procuring entity;"citizen contractor" means a person or a firm wholly owned and controlled by persons who are citizens of Kenya;"common-user items" means goods, works or services that are usable by procuring entities across the board irrespective of type or category, and the items include office equipment, furniture, motor vehicles and stationery;"complex and specialized contracts” means contracts that include procurement where the terms and conditions of an agreement are different from standard commercial terms and conditions, and includes contracts for infrastructural works performed under international agreements containing international terms and conditions;"consultancy services" means services of predominantly an intellectual, technical or advisory nature, and includes services offered by all professionals;"contract period" means the period between contract signing and the end of the defects liability period;"contract administration" means management of terms of procurement or asset disposal contracts made with contractors or suppliers after tender award by a procuring entity, for the purpose of assuring compliance with obligations such as timely delivery, quality and quantity inspection, acceptance, payment, claims, dispute resolution and completion, among other terms;"contractor" means a person who enters into a procurement contract with a procuring entity, and includes the main contractor;"corruption" has the meaning assigned to it under section 2 of the Anti-Corruption and Economic Crimes Act (Cap. 65);"design competition" means a procurement procedure for obtaining competitive tenders for services which are creative in nature and which require that part of the services be carried as part of the tender to facilitate evaluation of the tenders and such services may include architecture, landscaping, engineering, urban design projects, urban and regional planning, fine arts, interior design, marketing, advertising and graphic designs;"Director-General" means the Director-General of the Authority provided for under section 15 of this Act;"disadvantaged group" means persons denied by mainstream society access to resources and tools that are useful for their survival in a way that disadvantages them or individuals who have been subjected to prejudice or cultural bias because of their identities as members of groups or categories of persons without regard to their individual qualities, and includes enterprises in which a majority of the members or shareholders are youth, women, persons with disability or categories as shall be prescribed;"disposal" means the divestiture of public assets, including intellectual and proprietary rights and goodwill and other rights of a procuring entity by any means including sale, rental, lease, franchise, auction or any combination however classified;"electronic reverse auction" means an online real-time purchasing technique utilized by the procuring entity to select the successful submission, which involves the presentation by tenderers, suppliers or contractors of successively lowered bids during a scheduled period of time and the automatic evaluation of bids;"e-procurement" means the process of procurement using electronic medium such as the internet or other information and communication technologies;"framework agreement" means a pact between a procuring entity and a selected supplier (or suppliers) or contractor (or contractors) identified for a definite term to supply goods works or service whose quantities and delivery schedules are not definable or determinable at the beginning;"framework contract" means a pact between a procuring entity and a selected supplier (or suppliers) or contractor (or contractors) identified for a definite term to supply goods works or service whose quantities and deliveries are not definable or determinable at the beginning, with a commitment to order a minimum quantity of the required goods, works, or services;"fraudulent practice" includes a misrepresentation of fact in order to influence a procurement or disposal process or the exercise of a contract to the detriment of the procuring entity or the tenderer or the contractor, and includes collusive practices amongst tenderers prior to or after tender submission designed to establish tender prices at artificial non-competitive levels and to deprive the procuring entity of the benefits of free and open competition;"financial year" has the meaning assigned to it under Article 260 of the Constitution;"fiscal agency" means a person or an organization, or trust company, that acts on behalf of the Government of Kenya in performing various financial duties, including assistance in the arrangement for issuance of international sovereign bonds, redemption of bonds or coupons, handle tax issues, replace lost or damaged securities;"goods" includes raw materials, products, equipment, commodities in solid, liquid or gaseous form, electricity and services that are incidental to the supply of the goods, works and services;"loans" has the meaning assigned to it under Article 260 of the Constitution;"local contractor” means a person or a firm registered in Kenya under the Companies Act (Cap. 486) of or any other written law and whose operation is based in Kenya;"locally produced product or service" means goods and services that are manufactured in Kenya by firms that are registered and undertaking their business in Kenya;"obstruction" means acts intended to materially impede access to required information in exercising a duty under this Act;"person" has meaning assigned to it in Article 260 of the Constitution and includes sole proprietorship;"person with disability" means a person with disability who has attained the age of eighteen years and includes a company, association or body of persons, corporate or unincorporated in which at least seventy percent of the shareholders, members or persons and a majority of the directors are persons with disability;"public procurement" means procurement by procuring entities using public funds;"prescribed" means prescribed by Regulations under this Act;"preference" means the right or opportunity to select a tenderer from an identified target group that is considered more desirable than another;"pre-qualification" means the procedure to identify and shortlist tenderers that are qualified, prior to invitation for tenders;"pre-qualification procedure" means a procedure by which candidates are invited to demonstrate their qualifications prior to, and as a condition for, being invited to tender or submit proposals;"Principal Secretary" means the Principal Secretary for the time being responsible for matters relating to finance;"procurement" means the acquisition by purchase, rental, lease, hire purchase, license, tenancy, franchise, or by any other contractual means of any type of works, assets, services or goods including livestock or any combination and includes advisory, planning and processing in the supply chain system;"procuring agent" means an organization which has been registered by the Authority, and competitively engaged by a procuring entity on its behalf, or an organization established under this Act, to carry out procurement or asset disposal activities;"procurement contract" means an agreement concluded between the procuring entity and a contractor (or contractors) resulting from a tendering proceeding;"procuring entity" means a public entity making a procurement or asset disposal to which this Act applies;"procurement professional" means a person who has professional qualifications in procurement or supply chain management from a recognised institution and is a member of the Kenya Institute of Supplies Management or any other procurement or supply chain professional body recognised in Kenya;"procurement function" means a division within a procuring entity staffed with procurement professionals who are officially concerned with managing the procurement and asset disposal process and reports directly to the head of procuring entity functionally and administratively;"professional" means a person who has professional qualifications in a specialized field and who is engaged in the practice of a skill or trade, having undertaken the relevant formal academic and professional training including undertaking practical learning in the form of apprenticeship or tutelage under the guidance of a suitably qualified and experienced person in the field of training or tutelage;"professional body" means a body representing members of a profession, which is regulated by statute, code of conduct or rules as may be amended from time to time;"public entity" includes—3. Guiding principles
Public procurement and asset disposal by State organs and public entities shall be guided by the following values and principles of the Constitution and relevant legislation—4. Application of the Act
5. Conflicts with other Acts
6. Conflict with international agreements
Part II – BODIES INVOLVED IN THE REGULATION OF PUBLIC PROCUREMENT AND ASSET DISPOSAL
A. Role of the National Treasury in public procurement and assets disposal
7. Role of the National Treasury on public procurement and assets disposal
B– Public Procurement Regulatory Authority
8. The Public Procurement Regulatory Authority
9. Functions of Authority
10. Public Procurement Regulatory Board
11. Qualifications of members of the Board
12. Functions of the Board
13. Tenure of office
A member of the Board of the Authority including the chairperson shall hold office for a term of three years but shall be eligible for re-appointment for a further term of three years.14. Procedures of the Board
15. Director-General of the Authority
16. Term of office of Director-General
The Director-General appointed under section 15(1) shall hold office for a term of three years but shall be eligible for re-appointment for a further term of three years.17. Functions of the Director-General
18. Restrictions on activities of Director-General
During the period of his or her appointment, the Director-General shall not—19. Terms and conditions of service of Director-General and staff
20. Vacancy of office
The office of the Director-General shall become vacant if the holder—21. Removal of Director-General
22. Acting Director-General
The Board may designate a member of the staff of the Authority to act as the Director-General during the illness or absence of the Director-General or during a vacancy in the office for a period not exceeding three months within which time the Public Service Commission will have reconstituted the Recruitment Panel to recruit another Director-General.23. Staff of the Authority
The Board may, upon such terms and conditions of service as it may determine, employ management staff of the Authority as may be necessary for the proper performance of its functions taking into account the need for ethnic and regional balance and gender parity.24. Financial arrangements
25. Audit
The Authority shall be audited by the office of the Auditor-General in accordance with Articles 226(3) and 229 of the Constitution and the Public Audit Act (Cap. 412B).26. Annual reports
C – Public Procurement Administrative Review Board
27. Establishment of the Public Procurement Administrative Review Board
28. Functions and powers of the Review Board
29. Composition of the Review Board
30. Qualifications of members of the Review Board
31. Tenure of office
32. Terms and conditions of service of the Review Board members
Part III – COUNTY GOVERNMENT RESPONSIBILITIES WITH RESPECT TO PUBLIC PROCUREMENT AND ASSET DISPOSAL
33. Roles and Responsibilities of the County Government
Part IV – POWERS TO ENSURE COMPLIANCE
34. Powers to ensure compliance
A public entity shall provide the National Treasury or the Authority with such information relating to procurement and asset disposal as may be required in writing.35. Investigations
36. Powers of investigators
37. Report of investigation
After completing his or her investigation, an investigator shall prepare and submit a report to the Authority.38. Order by the Director-General
39. Request for a Judicial review
The procuring entity and any other person who was entitled to be given an opportunity to make representations under section 38 (2) may request for Judicial Review against an order of the Director-General to the High Court within fourteen days after the order is made.[Act No. 32 of 2022, s. 5.]40. No investigation if issue before Review Board
41. Debarment
42. Judicial Review
A party to the debarment may seek Judicial Review from the decision of the Authority to the High Court within fourteen days after the decision is made.43. Inspections, Assessments and Reviews relating to contracts, procurement and asset disposal proceedings
43A. Authority to enter premises.
Part V – INTERNAL ORGANISATION OF PROCURING ENTITIES
44. Responsibilities of the accounting officer
45. Corporate decisions and segregation of responsibilities
46. Evaluation Committee
47. Procurement function
48. Inspection and acceptance committee
49. Sector-specific procuring and disposal agencies
A procuring entity or procuring entities with common interest may establish a procuring agency at national or county level for the purpose of procurement and distribution of sector-specific goods, works and services on behalf of procuring entities within the respective sector and shall be in accordance with this Act and the regulations made thereunder.50. Consortium buying
51. Procuring agents or asset disposal agents
52. Transfer of procuring responsibility to another public entity or procuring agent
Part VI – GENERAL PROCUREMENT AND ASSET DISPOSAL PRINCIPLES
53. Procurement and asset disposal planning
54. Procurement pricing and requirement not to split of contracts
55. Eligibility to bid
56. Use of list of another state organ or public entity
57. List of registered suppliers
58. Standard procurement and asset disposal documents
59. Limitation on contracts with state and public officers
60. Specific requirements
61. Tender security
62. Declaration not to engage in corruption
A tender, proposal or quotation submitted by a person shall include a declaration that the person will not engage in any corrupt or fraudulent practice and a declaration that the person or his or her sub-contractors are not debarred from participating in procurement proceedings.63. Termination or cancellation of procurement and asset disposal proceedings
64. Form of communications, electronic procurement and asset disposal
65. Inappropriate influence on evaluations, etc.
66. Corrupt, coercive, obstructive, collusive or fraudulent practice, conflicts of interest
67. Confidentiality
68. Procurement records
69. Procurement approvals and delegation of responsibility
Part VII – BASIC PROCUREMENT RULES
70. Standard tender documents
71. Registration of suppliers
72. Responsibility for complying with Act, etc.
Contractors, suppliers and consultants shall comply with the provisions of this Act and the Regulations.73. Initiation of procurement process
Subject to the procurement planning, initiation of the procurement process shall be as prescribed in the Regulations.74. Invitation to tender
75. Modifications to tender documents
76. Modification of bids
77. Submission and receipt of tenders
78. Opening of tenders
79. Responsiveness of tenders
80. Evaluation of tenders
81. Clarifications
82. Correction, revision, adjustment or amendment of tender
83. Post-qualification
84. Professional opinion
85. Recommendation for contract awards
Subject to prescribed thresholds all tenders shall be evaluated by the evaluation committee of the procuring entity for the purpose of making recommendations to the accounting officer through the head of procurement to inform the decision of the award of contract to the successful tenderers.86. Successful tender
87. Notification of intention to enter into a contract
88. Extension of tender validity period
89. International tendering and competition
If there will not be effective competition for a procurement unless foreign tenderers participate, the following shall apply—Part VIII – CLASSIFIED PROCUREMENT METHODS AND PROCEDURES
90. Classified procurements and disposals
Part IX – METHODS OF PROCUREMENT OF GOODS, WORKS AND SERVICES
91. Choice of procurement procedure
92. Methods of procurement
93. Pre-qualification
94. Pre-qualification documents
95. Approval of pre-qualified candidates
Details of Procurement Methods
A – Open Tender
96. Advertisement
97. Time for preparing tenders
98. Provision of tender documents
B— Two-Stage Tendering
99. Two-Stage Tendering
C— Design Competition
100. Condition for use of Design Competitions
An accounting officer of a procuring entity may use a design competition procedure for the purpose of determining the best architectural, physical planning and any other design scheme, engineering, graphic or any other design scheme for its use.101. Procedure for design competition
D— Restricted Tendering
102. Restricted tendering
E — Direct Procurement
103. When direct procurement may be used
104. Procedure for direct procurement
An accounting officer of a procuring entity shall adhere to the following procedures with respect to direct procurement—(a)issue a tender document which shall be the basis of tender preparation by tenderer and subsequent negotiations.(b)appoint an ad hoc evaluation committee pursuant to section 46 to negotiate with a person for the supply of goods, works or non- consultancy services being provided;(c)ensure appropriate approvals under this Act have been granted;(d)ensure the resulting contract is in writing and signed by both parties.F — Request for Quotations
105. When request for quotations may be used
A procuring entity may use a request for quotations from the register of suppliers for a procurement if—106. Procedure for request for quotations
G — Low-Value Procurement
107. When low-value procurement may be used
A procuring entity may use a low-value procurement procedure if—108. Procedure for low-value procurement
The procedure and conditions for the use of low-value procurement method by different classes of public entities or different classes of goods, works or services being procured shall be as prescribed in the regulations.H — Force Account
109. Force Account
I — Electronic Reverse Auction
110. Reverse Auction
The Authority may in exceptional circumstances approve a system of electronic reverse auction method of procurement for goods, works or non-consultancy services by a procuring entity.111. Conditions for use of Reverse Auctions
For an accounting officer of a procuring entity to be qualified to use the reverse auction method it shall possess—112. Procedure for Reverse Auction
In the reverse auction method of procurement—113. Successful reverse auctioneering bid
Subject to the reserve price set by the procuring entity, the successful bid shall be the bid with lowest price at the bid submission deadline.J — Framework Agreement
114. Framework agreement
K — Specially Permitted Procurement
114A. Specially permitted procurement procedure
Part X – PROCUREMENT OF CONSULTANCY SERVICES
115. Application of this Part
This Part applies to procurement of professional services which are predominately intellectual or advisory in nature.116. When request for proposals may be used
117. Initiation of procurement
Initiation of the procurement shall—118. Request for proposal inviting expression of interest
119. Notice inviting expressions of interest
120. Opening of proposals
The provisions of section 78 of this Act with respect to the opening of proposals shall apply with modifications.121. Evaluation and shortlisting
122. Determination of qualified persons
123. Request for proposals to qualified persons
124. Selection methods for requests for proposals
125. Time for preparing proposals
Time for preparation of proposals shall be in accordance with section 97 of this Act.126. Evaluation of proposals
127. Successful proposal
The successful proposal shall be the responsive proposal with the highest score determined by an accounting officer in accordance with procedure and criteria set out under section 86 of this Act.128. Negotiations with successful request for proposal tenderer
129. Contract requirements
130. Restriction on entering into related contracts
A person who enters into a contract resulting from procurement by a request for proposals shall not enter into any other subsequent contract for the procurement of goods, services or works related to that original contract.131. Competitive Negotiations
An accounting officer of a procuring entity may conduct competitive negotiations as prescribed where—132. Procedure for Competitive Negotiations
133. Successful best and final offer
Part XI – PROCUREMENT CONTRACTS
134. Preparation of contracts
135. Creation of procurement contracts
136. Refusal to sign contract
137. Changes to contract responsibilities
The accounting officer of a procuring entity shall not request or require, as a condition of awarding a contract, that a person who submitted a tender undertake responsibilities not set out in the tender documents.138. Publication of procurement contracts
139. Amendments or variations to contracts
140. Interest on overdue amounts and liquidated damages
The following shall apply with respect to delayed performance and overdue amounts owed by a procuring entity and a contractor under a contract for a procurement —141. Framework contracting and multiple awards
142. Performance Security
143. Nature of performance security
The performance security may not generate interest and it shall be determined in accordance with the form provided for in the tendering document and may be paid in form of a bank guarantee, issued by an authorized financial institution or an irrevocable letter of credit.144. Seizure of the performance Security
145. Recovery of the performance Security
146. Advance payment
No works, goods or services contract shall be paid for before they are executed or delivered and accepted by the accounting officer of a procuring entity or an officer authorized by him or her in writing except where so specified in the tender documents and contract agreement. Such an advance payment shall not be paid before the contract is signed.147. Amount of advance payment and its security
148. Use of advance payment
The successful tenderer shall use the advance paid only in activities related to the tender. If the successful tenderer uses the entire advance or part of it in other activities that are unrelated to the tender, the advance shall immediately be considered as a debt which shall be paid by seizing the entire security or part of it.149. Sub-contracting
150. Contract administration
151. Complex and specialized contract implementation team
152. Contract monitoring
The head of the procurement function shall prepare monthly progress reports of all procurement contracts of the procuring entity and submit them to the accounting officer.153. Termination of contract
154. Contract close out
An accounting officer of a procuring entity shall close out a procurement contract immediately after completion and the close out shall involve the following—Part XII – PREFERENCES AND RESERVATION IN PROCUREMENT
155. Requirement for preferences and reservations
156. Eligibility for more than one preference scheme
Where a person is entitled to more than one preference scheme, the scheme with the highest advantage to the person shall be applied.157. Participation of candidates in preference and reservations
158. Procurement plans and monitoring compliance
Part XIII – INVENTORY CONTROL, ASSET AND STORES MANAGEMENT AND DISTRIBUTION
159. Receipt, and recording of goods, works and services
160. Objectives of Inventory Control, Asset and Stores Management and Distribution
161. Inventory, Stores and Assets Management system
162. Management of Inventory, Stores and Assets
Part XIV – DISPOSAL OF ASSETS
163. Disposal committee
164. Disposal procedure
165. Methods of disposal
166. Restriction on disposal to employees, etc
Part XV – ADMINISTRATIVE REVIEW OF PROCUREMENT AND DISPOSAL PROCEEDINGS
167. Request for a review
168. Notification of review and suspension of proceedings
Upon receiving a request for a review under section 167, the Secretary to the Review Board shall notify the accounting officer of a procuring entity of the pending review from the Review Board and the suspension of the procurement proceedings in such manner as may be prescribed.169. Rejection of requests by Review Board Secretariat
170. Parties to review
The parties to a review shall be—171. Completion of review
172. Dismissal of frivolous appeals
Review Board may dismiss with costs a request if it is of the opinion that the request is frivolous or vexatious or was made solely for the purpose of delaying the procurement proceedings or performance of a contract and the applicant shall forfeit the deposit paid and be debarred by the Authority.[Act No. 32 of 2022, s. 35.]173. Powers of Review Board
Upon completing a review, the Review Board may do any one or more of the following—174. Right to review is additional right
The right to request a review under this Part is in addition to any other legal remedy a person may have.175. Right to judicial review to procurement
Part XVI – OFFENCES AND SANCTIONS
176. Prohibitions and offences
177. General penalty and sanctions
A person convicted of an offence under this Act for which no penalty is provided shall be liable upon conviction—178. Protection from personal liability and indemnity
Part XVII – POLICY OPERATIONALIZATION AND REVIEW
179. Consultative meetings
180. Making of Regulations
The Cabinet Secretary shall make Regulations for the better carrying out of the provisions of this Act and, without limiting the generality of the foregoing, may make Regulations to facilitate the implementation of this Act, and such regulations shall not take effect unless approved by Parliament pursuant to the Statutory Instruments Act (Cap. 2A).181. Code of Ethics
The Authority shall develop a Code of Ethics to apply to every person on whom this act applies.Part XVIII – REPEAL, TRANSITION AND SAVINGS PROVISIONS
182. [Spent]
183. [Spent]
History of this document
31 December 2022 this version
Revised by
24th Annual Supplement
26 July 2022
01 July 2017
Amended by
Finance Act, 2017
Read this version
27 May 2016
06 May 2016
08 January 2016
07 January 2016
Commenced
18 December 2015
Assented to
Cited documents 11
Act 10
1. | Public Finance Management Act | 688 citations |
2. | Anti-Corruption and Economic Crimes Act | 571 citations |
3. | Leadership and Integrity Act | 322 citations |
4. | Universities Act | 294 citations |
5. | Statutory Instruments Act | 241 citations |
6. | Urban Areas and Cities Act | 225 citations |
7. | Basic Education Act | 172 citations |
8. | State Corporations Act | 154 citations |
9. | Public Audit Act | 114 citations |
10. | National Government Co-ordination Act | 58 citations |
Legal Notice 1
1. | Declaration of Protected Area | 1 citation |
Documents citing this one 366
Judgment 314
Gazette 21
Legal Notice 13
Act 7
1. | Public Finance Management Act | 688 citations |
2. | State Corporations Act | 154 citations |
3. | National Government Constituencies Development Fund Act | 40 citations |
4. | Social Health Insurance Act | 6 citations |
5. | Digital Health Act | 2 citations |
6. | National Lottery Act | 2 citations |
7. | Facilities Improvement Financing Act |
Bench Bulletin 6
1. | Bench Bulletin - Issue 41 | |
2. | Bench Bulletin - Issue 49 | |
3. | Bench Bulletin - Issue 54 | |
4. | Bench Bulletin - Issue 57 | |
5. | Bench Bulletin - Issue 58 | |
6. | Bench Bulletin - Issue 60 |
Bill 5
Subsidiary legislation
Title
|
Date
|
|
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The Public Procurement and Asset Disposal Regulations | Legal Notice 69 of 2020 | 31 December 2022 |
The Public Procurement and Disposal (Preference and Reservations) Regulations | Legal Notice 58 of 2011 | 31 December 2022 |