General Procurement Rules notes

General Procurement Rules

  • Meaning of procurement rules
  • General procurement rules Importance of general procurement rules

Definition of procurement rules: these are rules intended to provide a suitable, uniform and detailed framework to govern procurement across all public entities.

General Procurement Rules

  1. Procurement and asset disposal planning
  • All procurement by State organs and public entities are subject to the rules and principles of PPAD Act, 2015.
  • An accounting officer shall prepare an annual procurement plan which is realistic in a format set out in the Regulations within the approved budget prior to commencement of each financial year as part of the annual budget preparation process.
  • Any public officer who knowingly recommends to the accounting officer excessive procurement of items beyond a reasonable consumption of the procuring entity commits an offence under PPAD Act, 2015.
  • All asset disposals shall be planned by the accounting officer concerned through annual asset disposal plan in a format set out in the Regulations.
  • A procurement and asset disposal planning shall be based on indicative or approved budgets which shall be integrated with applicable budget processes and in the case of a State Department or County Department, such plans shall be approved by the Cabinet Secretary or the County Executive Committee member responsible for that entity.
  • All procurement and asset disposal planning shall reserve a minimum of thirty per cent of the budgetary allocations for enterprises owned by women, youth, persons with disabilities and other disadvantaged groups.
  • Multi-year procurement plans may be prepared in a format set out in the Regulations and shall be consistent with the medium term budgetary expenditure framework for projects or contracts that go beyond one year.
  • Accounting officer shall not commence any procurement proceeding until satisfied that sufficient funds to meet the obligations of the resulting contract are reflected in its approved budget estimates.
  • An accounting officer who knowingly commences any procurement process without ascertaining whether the good, work or service is budgeted for, commits an offence under PPAD Act, 2015.
  • For greater certainty, the procurement and disposal plans approved under subsection (5) shall include choice of procurement and disposal methods and certain percentages referred to under subsection
  • Any state or public officer who fails to prepare procurement and disposal plans shall be subject to internal disciplinary action.
  1. Procurement pricing and requirement not to split of contracts.
  • No procuring entity may structure procurement as two or more procurements for the purpose of avoiding the use of a procurement procedure except where prescribed.
  • Standard goods, services and works with known market prices shall be procured at the prevailing market price.
  • The PPRA shall issue a quarterly market price index as reference guide to assist accounting officers make informed price decisions.
  • Public officers involved in transactions in which standard goods, services and works are procured at unreasonably inflated prices shall, in addition to any other sanctions prescribed in PPAD Act, 2015 or the Regulations made thereunder, be required to pay the procuring entity for the loss resulting from their actions.
  1. Eligibility to bid

(1) A person is eligible to bid for a contract in procurement or an asset being disposed, only if the person satisfies the following criteria —

  • The person has the legal capacity to enter into a contract for procurement or asset disposal;
  • The person is not insolvent, in receivership, bankrupt or in the process of being wound up;
  • The person, if a member of a regulated profession, has satisfied all the professional requirements;
  • The person has fulfilled tax obligations;
  • The person has not been convicted of corrupt or fraudulent practices
  • Is not guilty of any serious violation of fair employment laws and practices

(2) A person or consortium shall be considered ineligible to bid, where in case of a corporation, private company, partnership or other body, the person or consortium, their spouse, child or sub-contractor has substantial or controlling interest.

(3) A person or other body having a substantial or controlling interest shall be eligible to bid where—

  • Such person has declared any conflict of interest; and
  • Performance and price competition for that good, work or service is not available or can only be sourced from that person or consortium.

(4) A State organ or public entity shall require a person to provide evidence or information to establish that they satisfy the qualifications/criteria.

(5) A State organ or public entity shall consider as ineligible a person for submitting false, inaccurate or incomplete information about his or her qualifications.

  1. Use of the list of another state organ or public entity

(1) To identify qualified persons, a State organ or public entity may seek, in writing, to use another State organ’s, public entity’s or regulated professional body’s registration list of all registered persons in the category, provided that the list is valid and developed through a competitive process in accordance with the relevant provisions of PPAD Act, 2015 or, in the case of regulated professional bodies, developed through a process in accordance with relevant provisions of the legislation regulating the particular profession.

(2) The State organ or public entity shall then subject the list, together with its own, where applicable, to the procedures in PPAD Act, 2015.

  1. List of registered suppliers

(1) The head of the procurement function of a procuring entity shall maintain and update lists of registered suppliers, contractors and consultants in the categories of goods, works or services according to its procurement needs.

(2) Submission of names shall be continuous and the registration list shall be updated periodically as prescribed in Regulations and in accordance with PPAD Act, 2015.

  1. Standard procurement and asset disposal documents.

(1) An accounting officer of a procuring entity shall use standard procurement and asset disposal documents issued by the PPRA in all procurement and asset disposal proceedings.

(2) The tender documents used by a procuring entity under subsection (1) shall contain sufficient information to allow fairness, equitability, transparency, cost-effectiveness and competition among those who may wish to submit their applications.

  1. Limitation on contracts with state and public officers

(1) A State Organ or public entity shall not enter into a contract for procurement with—

  • A public officer or state officer or a member of a committee or Board of that State organ or public entity
  • An officer of that public entity or state organ

(2) A State officer or a public officer shall not award or influence the award of a contract to—

  • Himself or herself;
  • The State officer’s or public officer’s spouse or child;
  • A business associate or agent; or
  • A corporation, private company, partnership or other body in which the officer has a substantial or controlling interest

(3) A state officer or public officer who has an interest in a matter under consideration in a public procurement or asset disposal shall disclose in writing, the nature of that interest and shall not participate in any procurement or asset disposal relating to that interest.

  1. Specific requirements

(1) An accounting officer of a procuring entity shall prepare specific requirements relating to the goods, works or services being procured that are clear, that give a correct and complete description of what is to be procured and that allow for fair and open competition among those who may wish to participate in the procurement proceedings.

(2) The specific requirements shall include all the procuring entity’s technical requirements with respect to the goods, works or services being procured.

(3) The technical requirements shall, where appropriate —

  • Conform to design, specification, functionality and performance;
  • Be based on national or international standards whichever is superior;
  • Factor in the life of the item;
  • Factor in the socio-economic impact of the item;
  • Be environment-friendly;
  • Factor in the cost disposing the item; and
  • Factor in the cost of servicing and maintaining the item.

(4) The technical requirements shall not refer to a particular trademark, name, patent, design, type, producer or service provider or to a specific origin unless —

  • There is no other sufficiently precise or intelligible way of describing the requirements
  • The requirements allow equivalents to what is referred to.
  1. Tender security

(1) An accounting officer of a procuring entity may require that tender security be provided with tenders, subject to such requirements or limits as may be prescribed.

(2) The form of tender security in subsection (1) shall be—

  • As prescribed in the Regulations;
  • Stated as an absolute value;
  • An amount of not more than two percent of the tender as valued by the procuring entity.

(3) Tender security shall be forfeited if the person submitting the tender —

  • Withdraws the tender after the deadline for submitting tenders but before the expiry of the period during which tenders shall remain valid;
  • Refuses to enter into a written contract as required under section 136 or fails to furnish any required performance security.

(4) A procuring entity may immediately release any tender security if—

  • The procurement proceedings are terminated;
  • The procuring entity determines that none of the submitted tenders is responsive;
  • A contract for the procurement is entered into; or
  • A bidder declines to extend the tender validity.

(5) Tender securities shall not be required in procurements reserved for small and micro-enterprises or enterprises owned by women, youth, persons with disabilities and other disadvantaged groups participating in a procurement proceeding and the target group shall be required to fill and sign the Tender Securing Declaration Form as prescribed.

  1. Declaration not to engage in corruption

A tender, proposal or quotation submitted by a person shall include a declaration that the person will not engage in any corrupt or fraudulent practice and a declaration that the person or his or her sub-contractors are not debarred from participating in procurement proceedings.

  1. Termination or cancellation of procurement and asset disposal proceedings.

(1) An accounting officer of a procuring entity, may, at any time, prior to notification of tender award, terminate or cancel procurement or asset disposal proceedings without entering into a contract where any of the following applies—

  • The subject procurement have been overtaken by—
    • Operation of law; or
    • Substantial technological change
  • Inadequate budgetary provision;
  • No tender was received;
  • There is evidence that prices of the bids are above market prices;
  • Material governance issues have been detected;
  • All evaluated tenders are non-responsive;
  • Force majeure;
  • Civil commotion, hostilities or an act of war; or upon receiving subsequent evidence of engagement in fraudulent or corrupt practices by the tenderer

(2) An accounting officer who terminates procurement or asset disposal proceedings shall give The PPRA a written report on the termination within fourteen days.

(3) The report prepared by the Accounting Officer shall include the reasons for the termination.

(4) An accounting officer shall notify all persons who submitted tenders of the termination within fourteen days of termination and such notice shall contain the reason for termination.

  1. Form of communications, electronic procurement and asset disposal.

(1) All communications and enquiries between parties on procurement and asset disposal proceedings shall be in writing.

(2) Information and Communication Technologies (ICT) may be used in procurement and asset disposal proceedings as prescribed with respect to—

  • Publication of notices;
  • Submission and opening of tenders;
  • Tender evaluation;
  • Requesting for information on the tender or disposal process;
  • Dissemination of laws, regulations and directives;
  • Digital signatures; or
  • As may be prescribed by regulations.
  1. Inappropriate influence on evaluations

(1) After the deadline for the submission of tenders, proposals or quotations —

  • A person who submitted a tender shall not make any unsolicited communications to the procuring entity or any person involved in the procurement proceedings that might reasonably be construed as an attempt to influence the evaluation and comparison of tenders; and
  • A person shall not attempt, in any way, to influence that evaluation and comparison

(2) A person who contravenes the provisions of subsection (1) commits an offence and shall lead to the tenderer being disqualified and the public officer facing disciplinary action in addition to any other action under PPAD Act, 2015.

(3) Upon completion of the evaluation process, a tenderer may communicate with the procuring entity on the procurement proceedings.

  1. 14. Corrupt, coercive, obstructive, collusive or fraudulent practice, conflicts of interest

(1) A person to whom PPAD Act, 2015 applies shall not be involved in any corrupt, coercive, obstructive, collusive or fraudulent practice; or conflicts of interest in any procurement or asset disposal proceeding.

(2) A person referred to under subsection (1) who contravenes the provisions of that sub-section commits an offence.

(3) Without limiting the generality of the subsection (1) and (2), the person shall be—

  • Disqualified from entering into a contract for a procurement or asset disposal proceeding; or
  • If a contract has already been entered into with the person, the contract shall be voidable.

(4) The voiding of a contract by the procuring entity under subsection (7) does not limit any legal remedy the procuring entity may have.

(5) An employee or agent of the procuring entity or a member of the Board or committee of the procuring entity who has a conflict of interest with respect to procurement —

  • Shall not take part in the procurement proceedings;
  • Shall not, after a procurement contract has been entered into, take part in any decision relating to the procurement or contract; and
  • Shall not be a subcontractor for the bidder to whom was awarded contract, or a member of the group of bidders to whom the contract was awarded, but the subcontractor appointed shall meet all the requirements of PPAD Act, 2015.

(6) An employee, agent or member described in subsection (1) who refrains from doing anything prohibited under that subsection, but for that subsection, would have been within his or her duties shall disclose the conflict of interest to the procuring entity.

(7) If a person contravenes subsection (1) with respect to a conflict of interest described in subsection (5)(a) and the contract is awarded to the person or his relative or to another person in whom one of them had a direct or indirect pecuniary interest, the contract shall be terminated and all costs incurred by the public entity shall be made good by the awarding officer.

(8) For the purpose of this section, a person has a conflict of interest with respect to a procurement if the person or a relative of the person —

  • Seeks, or has a direct or indirect pecuniary interest in another person who seeks, a contract for the procurement; or
  • Owns or has a right in any property or has a direct or indirect pecuniary interest that results in the private interest of the person conflicting with his duties with respect to the procurement.

(9) The ownership of, or right in, any property referred to in subsection (8)(b) shall not include rights arising by virtue of owning shares in publicly listed companies.

(10) For the purpose of subsection (8), the following are persons seeking a contract for procurement —

  • A person submitting a tender, proposal or quotation; or
  • If direct procurement is being used, a person with whom the procuring entity is negotiating.

(11) In this section, “relative” means —

  • A spouse, child, parent, brother or sister;
  • A child, parent, brother or sister of a spouse; or
  • Any other prescribed persons.

(12) Any person who contravenes the provisions of this section commits an offence.

  1. Confidentiality.

(1) During or after procurement proceedings and subject to subsection (3), no procuring entity and no employee or agent of the procuring entity or member of a board, commission or committee of the procuring entity shall disclose the following —

  • Information relating to procurement whose disclosure would impede law enforcement or whose disclosure would not be in the public interest;
  • Information relating to procurement whose disclosure would prejudice legitimate commercial interests, intellectual property rights or inhibit fair competition;
  • Information relating to the evaluation, comparison or clarification of tenders, proposals or quotations
  • The contents of tenders, proposals or quotations

(2) For the purposes of subsection (1) an employee or agent or member of a board, commission or committee of the procuring entity shall sign a confidentiality declaration form as prescribed.

(3) This section does not prevent the disclosure of information if any of the following apply —

  • The disclosure is to an authorized employee or agent of the procuring entity or a member of a board or committee of the procuring entity involved in the procurement proceedings;
  • The disclosure is for the purpose of law enforcement;
  • The disclosure is pursuant to a court order; or
  • The disclosure is made to The PPRA or Review Board under PPAD Act, 2015.
  1. Procurement records.

(1) An accounting officer of a procuring entity shall keep records for each procurement for at least six years after the resulting contract has been completed or, if no contract resulted, after the procurement proceedings were terminated.

(2) The records for procurement shall include —

  • A brief description of the goods, works or services being procured;
  • If a procedure other than open tendering was used, the reasons for doing so;
  • If, as part of the procurement procedure, anything was advertised in a newspaper or other publication, a copy of that advertisement as it appeared in that newspaper or publication;
  • For each tender, proposal or quotation that was submitted —
    • The name and address of the person making the submission;
    • The price, or basis of determining the price, and a summary of the other principal terms and conditions of the tender, proposal or quotation; and
    • A summary of the proceedings of the opening of tenders, evaluation and comparison of the tenders, proposals or quotations, including the evaluation criteria used as prescribed;
  • If the procurement proceedings were terminated without resulting in a contract, an explanation of why they were terminated;
  • A copy of every document that PPAD Act, 2015 requires the procuring entity to prepare; and
  • Such other information or documents as are prescribed.

(3) After a contract has been awarded to any person or the procurement proceedings have been terminated, the procuring entity shall, on request, make the records for the procurement available to a person who submitted a tender, proposal or quotation, or any interested member of the public where such information held is aligned to the principle of public interest or, if direct procurement was used, a person with whom the procuring entity was negotiating.

(4) The accounting officer of a procuring entity may charge a fee for making the records available but the fee shall not exceed the costs of making the records available to any person.

(5) No disclosure shall be made under subsection (3) that would be contrary to section 67(1), but a disclosure, under subsection (3), of anything described in paragraphs (a) to (f) of subsection (2) shall be deemed not to be contrary to paragraphs  (b) to (d) of section 67(1). (6) An accounting officer of a procuring entity shall maintain a proper filing system with clear links between procurement and expenditure files that facilitates an audit trail.

  1. Procurement approvals

(1) All approvals relating to any procedures in procurement shall be in writing and properly dated, documented and filed.

(2) No procurement approval shall be made to operate retrospectively to any date earlier than the date on which it is made except on procurements in response to an urgent need

(3) In approving procurements relating to an urgent need, the accounting officer shall be furnished with adequate evidence to verify the emergency.

(4) No procurement approval shall be made by a person exercising delegated authority as an accounting officer or head of the procurement function unless such delegation has been approved in writing by the accounting officer or the head of the procurement unit, respectively.

(5) An accounting officer of a procuring entity shall maintain specimen signatures of all persons authorized to make approvals within the procurement process and these signatures shall be availed to all staff and members where applicable.

(6) Responsibility for each approval made in the procurement procedure shall rest with the individual signatories and accounting officer, whether he or she delegated The PPRA or not.

Importance of General Procurement Rules

  • Monitoring Procurement Process

General procurement rules guide you through the different stages of the procurement process. You can identify whether the process is progressing according to plan by comparing it to the rules and make changes as necessary within the margins they define. The use of General procurement rules helps you evaluate the contract-awarding process, for example. Adhering closely to such rules enables you to avoid such errors as failing to notify suppliers about the rejection of their bids.

  • Enhance Transparency

General procurement rules are a crucial element in maintaining transparency, accountability, impartiality and fairness in the procurement process. It helps to prevent corruption issues, such as suppliers bribing those in charge of the procurement process, the fixing of bid prices or the awarding of contracts to one supplier without competitive bidding. The existence of rules helps ensure that supplies are procured only from ethical sources with good track records.

  • Efficient Tender Evaluation

Your organization can use General procurement rules for procurement as a reference point to efficiently evaluate any proposals received from potential suppliers. General procurement rules can help you determine the cost-effectiveness or quality of the proposals submitted. Failure to prepare proposals in accordance with established criteria renders bids ineligible for selection or negotiation.

  • Solving Legal Problems

Having procurement rules helps in evaluating bids that may have different performance levels by identifying the ones that have deviated from the set procurement requirements. The identification of such deviations involves comparing them to standard procedures, after which possible conflicts can be settled in court using these standards. After the procurement process, you can refer to the rules to unearth any supplier’s deviation from the set performance requirements. This can save you from costs that could arise from liability cases.

 



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