4 1053 2. Section 70 of the ES aos Act is Be by inserting the following new subsection immediately after subsection (6)— "(6A) Where a procurement is of a value exceeding one billion shillings, in addition to the requirements set out in subsection (6), a procuring entity shall set out specific goods, works and services to be undertaken by a local firm under jomnt venture procurement." 13. The principal Act is amended in section 81 by deleting subsection (2) and substituting therefor the following new subsection— "(2) A clarification shall not change the terms of the tender or add any new document or information." by under 14. The principal Act is amended in section 83 deleting subsection (2) and_ substituting therefore athowme following new subsection— ¥ "(2) The conduct of due dicen subsection (1) includes but is not limited to obtaining confidential references from persons with whom the tenderer has had prior engagement, visiting contractor's offices, inspecting of plant, equipment and completed works, in addition to confirming the validity of documents presented." 15. Section 86 of the principal Act is amended by inserting the following new subsection immediately ener subsection (2)— ic citizen' "(3) A successful tenderer is a contractor, shall not subcontract a foreign company unless the knowledge, skill, good or service is not available in the country." 16. Section 89 principal Act is amended of the by— provision as (a) renumbering the existing subsection (1); : s Z (b) inserting the following new subsection immediately after subsection (1 )— | 'Amendment of 5 section 70 of Cap. 412C. Amendinent of section 81 of ae 412C. — 'A
1064 The Public Proceurment and Asset Disposal (Amendment) Bill, 2024 "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;
1066 'The Public Proceurment Disposal Bill, 2024 and Asset (Amendment) SS "person" has meaning assigned to it in Article 260 of the Constitution and includes sole proprietorship; : as "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; asset "procuring entity" means a public entity making a procurement or 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;
The Public Proceurment and Asset Disposal (Amendment) Bill, 2024 1069 "services" means any objects of procurement or disposal other than works and goods and includes professional, consultancy services, technical services, non-professional and commercial types of services as well as goods and works which are incidental to 'But not -SRsere ne the of those value services; ; "standard" means characteristics or set of characteristics for an item which for reasons of quality level or compatibility with other products is accepted by the manufacturers and users of that item as a required characteristic for all items of that type; "supplier" means a person who enters into a procurement contract with a procuring entity to supply goods, works or services; "supply chain management" means the design, planning, execution control and monitoring of supply chain activities which includes procurement, purchasing, logistics, transportation, warehousing, storage, stock control, contract management and distribution, with an objective of creating value to meet the objectives of the procuring entity; "tender" means an offer in writing by a candidate to supply goods, services or works at a price; or to acquire or dispose stores, equipment or other assets at a price, pursuant to an invitation to tender, request for quotation or proposal by a procuring entity; "tenderer" means a person who submitted a tender pursuant to an invitation by a public entity; "tender box" means a lockable secure physical or virtual box where tenders are submitted including by electronic means so as to be opened only after the tender submission deadline; "tender security" means a guarantee required from tenderers by the procuring entity and provided to the procuring oe to secure the fulfillment of any obligation in the tender process and includes such arrangements as bank or insurance guarantees, surety bonds, standby letters of credit, cheques for which a bank is primarily liable, cash deposits, promissory notes and bills of exchange tender securing declaration, or other guarantees from institutions as may be prescribed; "urgent need" means the need for goods, works or services in circumstances where there is an imminent or actual threat to public health, welfare, safety, or of damage to property, such that engaging in tendering proceedings or other procurement methods would not be practicable; "user department" means the unit of a procuring entity that requisitions the goods, works or services being procured; —
1070 The Public Proceurment and Asset Disposal (. 'Amendment) Bill, 2024 "works" means a combination of goods and services for the construction, repair, renovation, extension, alteration, dismantling or demolition of buildings, roads or other structures and includes— (a) commissioning the designing, building, installation, testing, and setting up of equipment and plant; (b) site preparation; and (c) other incidental services; "woman" means a person of the female gender 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 its directors are of the female gender; "writing" means printing, photography, facsimile, typewriting, electronic media and any other means of ee or reproducing words in a visible form; and : "youth" means a person who has attained the age of eighteen years and has not attained the age of thirty-five years and includes a company, association or body of persons, corporate or unincorporated in which at least seventy percent of shareholders are persons who have attained the age of eighteen years and have not attained the age of thirty-five years. Section 4 of Cap. 412C which it is proposed to amend— 4. Application of the Act (1) This Act applies to all State organs and public respect to— (a) procurement planning; (b) procurement processing; (c) inventory and asset management; (d) disposal of assets; and (e) contract management. (2) For avoidance of doubt, the following are not procurements or asset disposals with respect to which this Act applies— (a) the retaining of the services of an individual for a limited term if, in providing those services, the individual works primarily as though he or she were an employee, but this shall not apply to persons who are under a contract of service; litgeaoky, entities math —
The Public Proceurment and Asset Disposal (Amendment) Bil, 2024 : @) provide advice and technical support upon request; (i) research on the public procurement and asset disposal system and any developments arising from the same; : : (h) to investigate and act on complaints received on procurement and asset disposal proceedings from procuring entities, tenderers, contractors or the general public that are not subject of administrative review; ye (j) advise the Cabinet Secretary on the setting of standards including international public procurement and asset disposal standards; develop and manage on procurement and asset and it is available and easily accessible; (k) the State portal disposal ensure that (1) monitor and evaluate the preference and reservations provided for under this Act and provide quarterly public reports; create a central repository database that includes— (m) or (i) complaints made on procuring entities; (ii) a record of those prohibited from participating in tenders or those debarred; (iii) market prices of goods, services and works; 5 (iv) benchmarked prices; (v) State organs and public entities that are non-compliant with procurement laws; (vi) statistics related to public procurement and asset disposal; (vii) price comparisons for goods, services and works; and (viii) any information related to procurement that may be necessary for the public; (n) inform, as applicable, the Cabinet Secretary, Parliament, the relevant County Executive member for finance, the relevant County Assembly or Auditor-General on issues of noncompliance with procurement laws once the relevant State organ or public entity ignores the written directives of the Authority, including material breaches of the measures established under this Act; (o) generally report to Parliament and the relevant county assembly, :
1076 The Public Proceurment and Asset Disposal (Amendment) Bill, 2024. (i) is guilty of a serious violation of fair employment laws and practices; or : (j) is determined by the Review Board to have filed a request that is frivolous or vexatious or was made solely for the purpose of delaying the procurement proceeding or a performance of a contract. (2) Without limiting the generality of subsection (1) the Board may debar a person from participating in any procurement process if that person— (a) has breached the requirements of the tender securing declaration form in the tender documents; or (b) has not performed according to professionally regulated procedures. (3) The Authority, may also debar a person from participating in procurement or asset disposal proceedings— (a) on the recommendation of a law enforcement organ with an investigative mandate; g (b) on grounds prescribed by the Authority in Regulations. (4) A debarment under this section shall be for a specified period of time of not less than three years. (5) The procedure for debarment shall be prescribed by Regulations. Section 44 of Cap. 412C which it is proposed to amend— 44, Responsibilities of the accounting officer (1) An accounting officer of a public entity shall be primarily responsible for ensuring that the public entity complies with the Act. (2) In the performance of the responsibility under subsection (1), an accounting officer shall— (a) ensure that procurements of goods, works and services of the public entity are within approved budget of that entity; (b) constitute all procurement and asset disposal committees within a procuring entity in accordance with the Act; (c) ensure procurement plans are prepared in conformity with the medium term fiscal framework and fiscal policy objectives and, subject to subsection (3), submit them to the National Treasury;
1084 The Public Proceurment and Asset Disposal (Amendment) Bill, 2024 (2) An accounting officer of a procuring entity, on the recommendation of an evaluation committee or as prescribed in the signed Contract Agreement, may approve the request for— (a) use of prime costs; (b) use of contingencies; (c) reimbursable costs; and (d) use of provisional sums. (2A) Despite subsection (2), an accounting officer of a procuring entity, on the recommendation of an evaluation committee or as prescribed in the signed contract agreement, may approve the request for the extension of the contract period, which request shall be accompanied by a letter from the tenderer making justifications for such extension. (3) No contract price shall be varied upwards within twelve months from the date of the signing of the contract. (4) For the purposes of this section, any variation of a contract shall only be considered if the following are satis fied— (a) the price variation from the original price is based on the prevailing consumer price index obtained from Kenya National Bureau of Statistics; : (b) the quantity variation for goods does not exceed fifteen per cent of the original contract quantity; (c) the price or quantity variation is to be executed within the period of the contract; (d) the cumulative value of all contract variations for goods do not result in an increment of the total contract price by more than twenty five per cent of the original contract price; and (e) the cumulative value of professional services does not result in an increment of the total contract price by more than twenty-five per cent of the original contract price. (5) An accounting officer of a procuring entity shall submit a quarterly report of their varied or amended procurement contracts to the Authority. (6) Where variations result in an increment of the contract price by more than twenty-five percent, such variations shall be tendered for separately.