The new law, assented to by President Uhuru Kenyatta last month, provides for rigorous checks for any state entity seeking to change contract terms and amounts.
Accounting officers will have to ensure that the price variation is based on the prevailing consumer price index obtained from the Kenya National Bureau of Statistics.
Changes would only be allowed where the quantity variation for goods does not exceed 15 per cent of the original contract quantity.
Variations would only be allowed where the price or quantity variation is to be executed within the period of the contract.
Any changes, the law provides, should not exceed the original price by more than 25 per cent, the same with professional services.
“The tender sum as submitted and read out during the tender opening shall be absolute and final and shall not be the subject of correction, revision, adjustment or amendment," the law reads.
Auditor General Nancy Gathungu has in numerous reports flagged variations of contracts occasioning additional expenses borne by taxpayers.
The rule, however, would not apply to contracts where direct procurement is justified, for competitive negotiations and for framework contracts.
Single sourcing of contractors has also been banned in the new law, with the PPRA required to give prior approval of any use of exceptional tendering methods.
The Public Procurement and Asset Disposal (Amendment) Act, 2022, further sets that state agencies must conduct market surveys before settling on a contract price.
“The head of the procurement function shall carry out market surveys to inform the placing of orders or decision making on procurement by the relevant awarding authority," the new Act reads.
For infrastructure projects, a market survey would be done at the beginning of every financial year of the cost of goods and services.
Officers are thereafter required to prepare a current cost handbook to be revised every six months.
Extensions, which Gathungu has singled out as one of the avenues through which unscrupulous officers occasion additional costs, would also be heavily restricted.
Going forward, such requests for the extension of the contract period will have to be accompanied by a letter from the contractor making justifications for such extension.
The new laws also provide that firms that file unfounded cases before the Public Procurement Review Board would be debarred.
This would be if it is determined that such firms have filed a request that is frivolous or vexatious or was made to delay the procurement proceeding or performance of a contract.
The new law also grants the Public Procurement Regulatory Authority (PPRA) unfettered access to premises under investigation for procurement breaches.
Where such entry is denied, the law provides that the authority may seek a court order empowering the police to use any amount of force to access the said premises.
It is also provided that the director general can order investigations into a matter which the review board had concluded.
The law is further being tightened to make heads of procurement as secretaries of tender evaluation committees. If they nominate someone else, they will have to put it in writing.
Heads of procurement are also required to be mandatory members of the inspection and acceptance committee.
State agencies would also be further required to publish their procurement plans on their websites, and the same published by the National Treasury on the public tender portal.
In the new law, procurement will not be shelved because a contract has failed to yield six proposals, or three in the minimum.
“Where a repeat process fails to yield the requisite numbers of qualified candidates, the procuring entity shall proceed with the subject procurement and make a report to the authority (PPRA),” the new Act reads.
Publication of tenders will not apply to contracts awarded by national security organs through classified procurement methods and procedures.
PPRA has also been mandated to develop, promote and support the training and capacity development of persons involved in procurement and asset disposal.
(Edited by Tabnacha O)
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