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Public Procurement Oversight Authority

Public Procurement Oversight Authority. THE ROLES AND RIGHTS OF BIDDERS IN THE PUBLIC PROCUREMENT AND DISPOSAL SYSTEM. Schematic Representation of Legal and Regulatory Hierarchy. BODIES INVOLVED IN THE REGULATION OF PUBLIC PROCUREMENT (Section 8-25)

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Public Procurement Oversight Authority

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  1. Public Procurement Oversight Authority THE ROLES AND RIGHTS OF BIDDERS IN THE PUBLIC PROCUREMENT AND DISPOSAL SYSTEM

  2. Schematic Representation of Legal and Regulatory Hierarchy

  3. BODIES INVOLVED IN THE REGULATION OF PUBLIC PROCUREMENT (Section 8-25) • Deals with the establishment of the Public Procurement Oversight Authority (PPOA), Public Procurement Oversight Advisory Board, and Public Procurement Administrative Review Board. • Functions of the Bodies (a)  Public Procurement Oversight Authority (PPOA): • ensuring procurement procedures are complied with; • monitor the performance of the public procurement system and report to the Minister (M&E) • assist in the implementation of an efficient and effective public procurement system through:

  4. Preparation of manuals • Providing advice and assistance to procuring entities • Training and professional development • Issuing directions to procuring entities • Ensuring engagement of procurement professionals • Transfer of procurement authority. • Offer other functions provided under this Act.

  5. Director General: • Shall be the Chief Executive of the Authority • Appointed by the Advisory Board • Approved by Parliament • Term of office – 5 years, renewable once • Termination by the Advisory Boards– Conditions: • Incompetence • Infirmity • Conviction • Corruption • employed in other public office • Bankruptcy.

  6. Advisory Board: (i) Composition – 9 members appointed by the Minister from persons nominated by prescribed (private and public) organizations. (First schedule for prescribed organizations), and the Director-General. (ii) Functions: • Advise the Authority • Approve estimates of revenue and expenditures of the Authority.

  7. Recommend appointment or termination of Director- General in accordance with this Act. • Approval of debarment. • Other functions and duties provided for under the Act.

  8. Public Procurement Administrative Review Board • Composition of the Board shall be nine (9) members as prescribed in the regulations. • The Authority shall provide administrative services to the Review Board. • The functions are prescribed in Part VII of the Acts.

  9. Qualifications to be awarded a contract one should; • Have necessary qualifications, resources and equipment • Have legal capacity to enter into a contract • Not be insolvent, in receivership or bankrupt • Be debarred from participating in procurement proceedings

  10. Limitations on Contracts ith Employees • Unless allowed, a procuring entity shall not enter into a contract for a procurement with — (a) an employee of the procuring entity or a member of a board or committee of the procuring entity; (b) a Minister, public servant or a member of a board or committee of the Government or any department of the Government or a person appointed to any position by the President or a Minister; or (c) a person, including a corporation, who is related to a person described in paragraph (a) or (b). NB a relative is limited to a spouse or child.

  11. PROCUREMENT RULES • Participation, no discrimination except as prescribed (preference and reservations) •  Maximum opportunities to SMEs • No involvement in corrupt practices •  No involvement in fraudulent practices •  No collusive practices •  No conflict of interest

  12. No disclosure of confidential information •   Keeping of proper procurement records •   Publication of contract awards (PPOA)

  13. Rights Of The Suppliers • To participate in public procurement fairly and get non discriminatory treatment in the tendering process-S.31(6) & 39(1) of the Act, 2005 • Right to attend tender opening session if a candidate • Right to be awarded tender if one meets requirements/lowest evaluated • To seek clarifications and get response from PE, addendum, notice of extension of tender validity-61(2), notice of termination of procuring proceedings-S.39 (2) • To get reasons why his/her bid was not successful, upon request-Reg. 66(2) of Regulations, of 2006

  14. Rights Of The Suppliers cont’d • To seek administrative review on PE’s decisions-ARB Review S.93(1) & Reg 73 of Regulations, 2006 which is additional to other legal remedy the person may have. S 99 • To be represented by an advocate or person of your choice in review under ARB-Reg.76 • Seek Judicial Review-S 100 • To modify or withdraw bid before deadline for submission • To get a copy of tender opening register upon request-S.60(6)

  15. Rights Of The Suppliers cont’d • To be notified of the tender outcome-section 67 of the Act • To be paid promptly or in accordance with the terms and conditions of the contract and be paid interest on over due payments if provided(S.48) • To get records for the procurement after the contract has been awarded or the procuring proceedings have been terminated upon request-S. 45(3)

  16. Obligations Of The Suppliers • To obtain and submit bid documents in the manner prescribed in the tender notice, tender documents-closing/opening, venue of submission, language, form and amount of bid security if required etc • To adhere and follow bidding instructions e.g. proper filling of documents • demonstrate that they are qualified for the tender awarded - S.31 • supply the right quantity and quality and deliver at the right time • Maintain confidentiality • Perform the obligations of the contracts • Offer indemnity • Avoid corruption, inappropriate influences (e.g. on evaluations) , collusive and fraudulent practices-S.38, 40, 41, 42.

  17. 3. Corruption risks - Contract Implementation • Accept/receive less quantity or quality or type other than what was ordered • Partial delivery • Diversion of goods for personal use or resale/ “sister projects” • Unjustified variation of the orders • Delay in acceptance of goods

  18. 4. Corruption risks - Payments • Payment before delivery • Payment for goods, services or works not received • Selective payment of suppliers • Full payment for partial delivery • Delayed payment • Excessive number of signatures required to approve progress of payments.

  19. Corruption risks- Suppliers/ contractors • Bid Suppression: some competitors agree to refrain from bidding or withdraw a previously submitted bid. • Divide the pie: Competitors agree in advance the winning bid • Complementary bidding: Bidders agree to submit bids that are either too high to be accepted or contain special terms that will not be acceptable to the buyer. • Bid rotation schemes: Bidders collude to take turns being the lowest bidder.

  20. Provisions In The Act That Relate To Unethical Conduct • Section 30: Splitting or inflating procurement • Section 38: Inappropriate influence on evaluation: Unsolicited communications, unauthorized persons • Sec. 40 - No person, agent or employee shall be involved in any corrupt practice in any procurement proceedings. • Sec. 41: No fraudulent practice. • Sec. 42 - No collusion (propose a price higher than would have been, refrain from submitting, withdraw or change a tender, etc) • Sec. 43 - No conflict of Interest • Sec. 44 – Confidentiality in procurement proceedings.

  21. Effects Of Unethical Practices • Loss of goodwill from public • Slows down economic development • Disregard for standards and virtues of integrity • Withdrawals of international (Donors) support • Loss of public/stakeholders’ confidence in public procurement • May lead to escalation of corruption risks in procurement

  22. DEBARMENT FROM PARTICIPATING IN PROCUREMENT PROCEDURES (Section 115-125) • Director-General with the approval of the Advisory Board may debar a person from participating in procurement proceedings Grounds of debarment: • an offence under this Act • offence relating to procurement under any other Act • breach of contracts • Giving false information about qualifications • Refusal to enter into a written contract

  23. Period of debarment (5 years) • Right to make representations • A person shall be allowed to make presentation before debarment • Request for Review • A debarred person may request a review by the Review Board • Judicial Review • Judicial review is also available to the debarred person • List of debarred persons. • The PPOA shall maintain and make available to public entities a list of persons debarred from participating in procurement proceedings

  24. ADMINISTRATIVE REVIEW OF PROCUREMENT PROCEDURES (Section 93-100) This part deals with • Request for a review • An aggrieved party has a right of administrative review • Matters not subject to a review: • Choice of procurement procedure • Rejection of all tenders • Signed contracts • Frivolous appeals. • Suspension of proceedings • Procurement proceedings to be suspended upon request for review

  25. Dismissal of frivolous appeals •  Parties to Review • The person who requested the review • The procuring entity • Successful tenderer notified by the procuring entity • Such other persons as the Review Board may determine

  26. Powers of Review Board • Annul anything the procuring entity has done in the procurement proceedings • Give directions to the procuring entity with respect to anything to be done or redone in the procurement proceedings • Substitute the PEs decision with the Board • Order payment of costs between parties • Judicial review. • Any party to the review aggrieved may appeal to the High Court

  27. AUTHORITY POWERS TO ENSURE COMPLIANCE ( Section 101-114) • Information to Authority • Public entities required to give information relating to procurement to the Authority • Investigations • Director-General may order investigations and appoint an investigator • Powers to investigate • The investigator shall have access to all books, returns, reports and other documents of the procuring entity or a person who participated in the procurement proceedings, including electronic documents

  28. Report of investigation • The Director-General shall prepare a summary of findings and recommendations and give a copy of the summary to the procuring entity and to the Ethics and Anti-Corruption Commission. • Request for Review Procuring entities and any other persons affected by actions resulting from the recommendations by the investigator may request the review of the order by the Review Board. • Dismissal of frivolous requests Review Board may dismiss a request on this ground

  29. Offences:  Obstruction  lying or misleading delay in opening of tenders or evaluation or award of contracts Exerting unduly influence or pressure on any member of a tender committee, an employee or agent of a PE to take a particular action which favours or tend to favour a particular bidder opening bids prior to appointed time. 29

  30. General Penalty: • Fine not exceeding Kshs.4 million or imprisonment forterm not exceeding 10 years or both for an individual. •    If corporate body, fine not exceeding Kshs.10 million. •    Public officer shall be disqualified from public office. •    Private individual shall be debarred •    Protection from personal liability: Code of ethics All procurement and disposal to be carried in accordance with the code of ethics specified by PPOA • Minister to issue Regulations to implement the Act

  31. Thanks and God Bless

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