2ND ANNUAL GENERAL PUBLIC PROCUREMENT STAKEHOLDERS FORUM, 2009

31st J l 2009

CRITICAL AREAS OF

31st July, 2009

ACRITICAL AREAS OF

IMPROVEMENT IN THE CURRENT LAW

By: Mwaniki GachokaChairman, Administrative Review Board

DEFINITION OF A CANDIDATE

• Section 3 Defines a candidate as a person who has submitted a tender to the Procuring Entity

Section 93 limits the person who can seek for administration review to a Candidate

Comment:-The definition excludes parties who could be aggrieved in the procurement process immediately after the advertisement noticeafter the advertisement notice

PRE- QUALIFICATION

• Regulation 24(4)

• The procuring entity shall allow the candidates at least 14 days to prepare and submit their applications to be y p p pppre-qualified –

Comment:Comment:-– No time set for pre-qualified tenderers to return

their bids-– There is need to introduce a sub-regulation to fill

the gap– Currently being abused - only give quotations toCurrently being abused only give quotations to

preferred firms

TERMINATION• Section 36(1)

A PE may at any time terminate procurement proceedings• A PE may , at any time, terminate procurement proceedings without entering into a contract

Comment:CThe High Court held that a Procuring Entity cannot

terminate procurement proceedings after notification of award

• Section 36(6)• Termination of a procurement proceeding shall not be p p g

reviewed by Review Board or CourtComment:

Attempts to ousts Court’s jurisdiction p j

Case:

Mi A li i N 1260 f 200 S lMisc. Application No. 1260 of 2007 Selex Sistemi Vs ARB & 2nd Kenya Civil Aviation AuthorityAviation Authority

The decision and ruling of the ARB was challenged for failure to consider guiding principles in the interpretation of ouster clausesprinciples in the interpretation of ouster clauses. It was contrary to public policy and intention of parliament for purporting to allow PE to arbitrary start terminate and re start tender proceedingsstart terminate and re-start tender proceedings.

SUMMARY OF EVALUATION

Section 44(3)A ili f f l ti t th A li t• Availing of summary of evaluation to the Applicant

Comment:-Not clear what constitutes a summary and when it should be availed to the Applicantbe availed to the Applicant

Regulation 66 (3) A candidate to be provided with written reasons within 14 days after request as to why the tender/proposal was unsuccessfulafter request as to why the tender/proposal was unsuccessful

Comment:• The days given exceed the time available for the

candidates to seek for the judicial review as the request j qfor the reasons can only be made after notification

• Once an Applicant has lodged an application for Review, the procurement process is stopped and the Procuring Entity cannot communicate with the Applicant

PREFERENCE AND RESERVATIONS

• Regulation 28(2)(b)(ii) - Preferences and reservations

Comment:-There is no preferences where shareholding is 100% Kenyan

• Case:Dela Rue vs KRA

STANDARD TENDER DOCUMENTS

• Section 29

• Use of standard tender documents made• Use of standard tender documents made in tandem with the current Act in line with the Public Procurement and Disposal Actthe Public Procurement and Disposal Act and other relevant Acts i.e.

• CAP525 – Architects & Quantity SurveyorsQ y y• Communications amendments Act 2008

TENDER COMMITEES

• Regulation 10C iti f th t d itt• Composition of the tender committees

Comment:-There is need to review the composition of the schools Tender committee and other Procuring Entities who are have small outfits

• Regulation 52• PE to confirm qualification of the lowest evaluated bidder

Comment:-Who is to confirm the qualifications? Tender or evaluation committeecommittee

NOTIFICATION – SECTION 67

• The section is being abused by PE by not communicating the decision of the tender committee immediately if the award goes to ‘unwanted’ person/firm This leads to the expiry‘unwanted’ person/firm. This leads to the expiry of the validity period of the tender.

• Recommendation:-period on hen notification sho ld be– period on when notification should be done after tender committee awards should be includedshould be included

PRELIMINARY OBJECTION

• Regulation 77(1)• A party notified under Reg. 74 may file a P.O to p y g y

the hearing of the Request for Review within 5 days from notification

• Preliminary Objection can be raised any time

WITHDRAWAL OF APPEAL/TIME FOR BOARD’S SITTING

• Regulation 78• Time for Board’s meeting (8.00 a.m.-5.00 p.m.)Comment:-

Ci t f th B d t it b dCircumstances may force the Board to sit beyond 5.00 p.m.

• Section 83(1)( )• Withdrawal of request for review effective upon receiptComment:-

Authenticity of the letter should be established Who meet the costs?

Judicial review

• Section 100(1) • Board’s decision final unless judicial review commences within• Board s decision final unless judicial review commences within

14 days

Comment:-Comment:Not in tandem with other laws on judicial review namely law reform act and order 53 which provides 21 days after leave (Selex Sistemi case)

• Section 100(2)• A party aggrieved by Board’s decision may appeal to H.C

Comment:-Appealing to the High Court may open up hearing afresh. Prolong procurement process as compared to seeking J di i l R iJudicial Review

Director General’s orders & Debarment& Debarment

• Sections 106 and 117 • Director General’s enforcement orders and debarment Comment:-

N t bj t t j di i l i• Not subject to judicial review

• Parties to the Review on debarment do not includeParties to the Review on debarment do not include the Procuring Entity - section 120

• Section 109 on the Review of the DG’s orders, the DG is not party to the Review

Director General’s Orders & Debarment

• DG’s orders on compliance and debarment

& Debarment

Comment:-N i i i th l ti h ti– No provisions in the regulations on how parties should make presentations in the hearing.

– The provision for the Board to determine such other parties to the Review is not clear

DISPOSAL

• Part X of the Act concentrates on disposal of stores and equipment and leaves out real property, buildings and other assets

• Procedures for Disposal need to be enhanced

• There is no appeal window after a disposal procedure

• What happens when the highest bidder declines the award?

CONFLICT OF INTEREST

• There is a perceived conflict of interest in the Review against the Director Generals orders since he is the one who appoints the Secretary of the Board from among the staff of theof the Board from among the staff of the Authority

CommentReq ires the creation of an independent– Requires the creation of an independent Review Board

SECTION 133-

• Procurement and disposal by Armed Forces, Police etc

Comment:-This provision requires detailed Regulations as they are not available currently

GENERAL PENALTY

• Section 137

• The wordings of the section need• The wordings of the section need ammendment

Thank You!Thank You!