WAR ON CORRUPTION

Procurement laws impede transparency in Covid-19 response

There are glaring gaps in laws and policies in regard to emergency procurement

In Summary

• There have been queries raised on the credibility of how the disbursed funds will be used and tracked.

• Four Kilifi county officers were on Wednesday arrested by the EACC over irregular procurement of the tender for the construction of Kilifi Covid-19 Complex centre.

Kilifi Covid-19 Complex Centre
Kilifi Covid-19 Complex Centre
Image: COURTESY

The Kenyan government has been receiving and allocating colossal amounts of funds to flatten the curve in the fight against Covid-19 pandemic. It estimates to spend Sh40 billion on fighting the virus.

However, there have been queries raised on the credibility of how the disbursed funds will be used and tracked.

In fact, four Kilifi county officers were on Wednesday arrested by the EACC over irregular procurement of the tender for the construction of Kilifi Covid-19 Complex centre.

 

Earlier in April, some Bungoma MCAs have vowed to impeach speaker Emmanuel Situma over a controversy surrounding the use of Sh6.5 million for Covid-19 response, the Star reported. 

This is because of the glaring gaps in laws and policies in regard to emergency procurement as well as information publishing around emergency procuring.

The Public Procurement and Disposal (PPAD) Act 2015 provides for use of direct procurement whenever there is an urgent need.

The act defines urgent need as a need for goods, works or services in circumstances where there is an imminent or actual threat to public health, welfare, safety, or damage to property

. This is because engaging in tendering procedures or other procurement methods would be impractical due to the time involved.

Other circumstances where a procuring entity may use direct procurement include instances of war, invasion, disorder and natural disaster.

Under these urgent circumstances, the act provides that an accounting officer of a procuring entity shall appoint an ad hoc evaluation committee that would be responsible to negotiate with suppliers of goods and works and ensure procurement needs are met.

It, therefore, suffices to assume that procuring entities tackling the Covid-19 pandemic both at the national and county government level have been using direct procurement to purchase medical equipment and other necessities since the first coronavirus case was announced early March.

But does this procurement procedure as captured in the act guarantee a clean procurement process and that the billions of shillings disbursed will be utilized effectively and achieve value for money?

The Executive Order No. 2 of 2018 states in part that pursuant to the PPAD Act 2015, and other enabling legislation, public procurement of public goods, works arising from the declaration of a national emergency or national disaster, shall be exempt from publication and updating on the public procurement information portal.

 

This means procuring entities that are currently in the frontline fighting against the pandemic are not obligated to publish any information on the procurement being undertaken.

Further, the Public Procurement Regulatory Authority recently issued circular outlining measures when procuring and advised entities involved in the process to scale down their procurements.

It further instructed accounting officers to review approved procurement plans and methods and where necessary, re-allocate resources that fast track procurement and facilitate the delivery of essential services during the pandemic.

The PPRA guidelines, however, just touch on the operational and technical nature of procurements but don’t highlight the legal implications that clearly may be an open conduit for collusion, price gouging and corruption.

Because of the rush, emergency procurements can sometimes be prone to unqualified suppliers, poor quality goods, shoddy contractors and inordinately high costs.

Undertaking direct procurement with no obligation to publish information on the process, therefore, does not provide for transparency that would ensure transparency during an emergency situation such as the one we are facing. This, therefore, creates a loophole for crooks to misuse public funds.

Strengthening procurement legislation for emergency situations will help reduce corruption and ensure as many lives are saved during disasters and epidemics.

Four years since the enactment of the PPAD Act in 2015, the government is yet to approve and gazette the PPAD regulations.

Once gazetted the regulations will assist the harmonisation and standardisation of public procurement and asset disposal management system and ensure accountability, efficiency, transparency and proper utilisation of public resources.

The National Treasury needs to urgently gazette these regulations to safeguard citizens from procurement-related corruption.

Additionally, emergency procurement strategies need to be rapidly digitised with data on prices, suppliers, lead times and specifications and promptly updated.

It is also important for governments to work innovatively and in real-time with civil society who play a major role in ensuring transparency and accountability during such uncertain times.

Publishing emergency procurements perhaps under more relaxed circumstances will also help non-state actors and other stakeholders in monitoring and oversight of the funds to help the government achieve value for money and increase citizen confidence in management of funds in emergencies.

Otieno deputy program officer at Transparency International Kenya