PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT
[Date of assent: 18th December, 2015.]
[Date of commencement: 7th January, 2016.]
AN ACT of Parliament to give effect to Article 227 of the Constitution; to provide procedures for efficient public procurement and for assets disposal by public entities; and for connected purposes
[Act No. 33 of 2015, Corr. No. 60/2016, Corr. No. 73/2016, Act No. 15 of 2017.]
PART I – PRELIMINARY
- Short title
This Act may be cited as the Public Procurement and Asset Disposal Act, 2015. 2. Interpretation
(1) In this Act, unless the context otherwise requires—
“accounting officer” has the meaning assigned to it under section 2 of the Public Finance Management Act, 2012 (No. 18 of 2012);
“appeal” means a request for administrative review or complaint filed with the Appeals Review Board pursuant to section 167 of this Act;
“assets” means movable and immovable property, tangible and intangible, including immovable property, stores, equipment, land, buildings, animals, inventory, stock, natural resources like wildlife, intellectual rights vested in the state or proprietary rights;
“Authority” means the Public Procurement established under section 8 of this Act;
Regulatory
Authority
“Board” means the Public Procurement Regulatory Board established under section 10 of this Act;
“Cabinet Secretary” means the Cabinet Secretary for the time being responsible for matters relating to finance;
“candidate” means a person who has obtained the tender documents from a public entity pursuant to an invitation notice by a procuring entity;
“citizen contractor” means a person or a firm wholly owned and controlled by persons who are citizens of Kenya;
“common-user items” means goods, works or services that are usable by procuring entities across the board irrespective of type or category, and the items include office equipment, furniture, motor vehicles and stationery;
“complex and specialized contracts” means contracts that include procurement where the terms and conditions of an agreement are different from standard commercial terms and conditions;
“consultancy services” means services of predominantly an intellectual, technical or advisory nature, and includes services offered by all professionals;
“contract period” means the period between contract signing and the end of the defects liability period;
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“contract administration” means management of terms of procurement or asset disposal contracts made with contractors or suppliers after tender award by a procuring entity, for the purpose of assuring compliance with obligations such as timely delivery, quality and quantity inspection, acceptance, payment, claims, dispute resolution and completion, among other terms;
“contractor” means a person who enters into a procurement contract with a procuring entity, and includes the main contractor;
“corruption” has the meaning assigned to it under section 2 of the Anti- Corruption and Economic Crimes Act 2003 (No. 3 of 2003);
“design competition” means a procurement procedure for obtaining competitive tenders for services which are creative in nature and which require that part of the services be carried as part of the tender to facilitate evaluation of the tenders and such services may include architecture, landscaping, engineering, urban design projects, urban and regional planning, fine arts, interior design, marketing, advertising and graphic designs;
“Director-General” means the Director-General of the Authority provided for under section 15 of this Act;
“disadvantaged group” means persons denied by mainstream society access to resources and tools that are useful for their survival in a way that disadvantages them or individuals who have been subjected to prejudice or cultural bias because of their identities as members of groups or categories of persons without regard to their individual qualities, and includes enterprises in which a majority of the members or shareholders are youth, women, persons with disability or categories as shall be prescribed;
“disposal” means the divestiture of public assets, including intellectual and proprietary rights and goodwill and other rights of a procuring entity by any means including sale, rental, lease, franchise, auction or any combination however classified;
“electronic reverse auction” means an online real-time purchasing technique utilized by the procuring entity to select the successful submission, which involves the presentation by tenderers, suppliers or contractors of successively lowered bids during a scheduled period of time and the automatic evaluation of bids;
“e-procurement” means the process of procurement using electronic medium such as the internet or other information and communication technologies;
“framework agreement” means a pact between a procuring entity and a selected supplier (or suppliers) or contractor (or contractors) identified for a definite term to supply goods works or service whose quantities and delivery schedules are not definable or determinable at the beginning;
“framework contract” means a pact between a procuring entity and a selected supplier (or suppliers) or contractor (or contractors) identified for a definite term to supply goods works or service whose quantities and deliveries are not definable or determinable at the beginning, with a commitment to order a minimum quantity of the required goods, works, or services;
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“fraudulent practice” includes a misrepresentation of fact in order to influence a procurement or disposal process or the exercise of a contract to the detriment of the procuring entity or the tenderer or the contractor, and includes collusive practices amongst tenderers prior to or after tender submission designed to establish tender prices at artificial non-competitive levels and to deprive the procuring entity of the benefits of free and open competition;
“financial year” has the meaning assigned to it under Article 260 of the Constitution;
“fiscal agency” means a person or an organization, or trust company, that acts on behalf of the Government of Kenya in performing various financial duties, including assistance in the arrangement for issuance of international sovereign bonds, redemption of bonds or coupons, handle tax issues, replace lost or damaged securities;
“goods” includes raw materials, products, equipment, commodities in solid, liquid or gaseous form, electricity and services that are incidental to the supply of the goods, works and services;
“loans” has the meaning assigned to it under Article 260 of the Constitution; “locally produced product or service” means goods and services that
are manufactured in Kenya by firms that are registered and undertaking their business in Kenya;
“obstruction” means acts intended to materially impede access to required information in exercising a duty under this Act;
“person” has meaning assigned to it in Article 260 of the Constitution and includes sole proprietorship;
“person with disability” means a person with disability who has attained the age of eighteen years and includes a company, association or body of persons, corporate or unincorporated in which at least seventy percent of the shareholders, members or persons and a majority of the directors are persons with disability;
“public procurement” means procurement by procuring entities using public funds;
“prescribed” means prescribed by Regulations under this Act; “preference” means the right or opportunity to select a tenderer from an
identified target group that is considered more desirable than another; “pre-qualification” means the procedure to identify and shortlist tenderers
that are qualified, prior to invitation for tenders;
“pre-qualification procedure” means a procedure by which candidates are invited to demonstrate their qualifications prior to, and as a condition for, being invited to tender or submit proposals;
“Principal Secretary” means the Principal Secretary for the time being responsible for matters relating to finance;
“procurement” means the acquisition by purchase, rental, lease, hire purchase, license, tenancy, franchise, or by any other contractual means of any type of works, assets, services or goods including livestock or any combination and includes advisory, planning and processing in the supply chain system;
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“procuring agent” means an organization which has been registered by the Authority, and competitively engaged by a procuring entity on its behalf, or an organization established under this Act, to carry out procurement or asset disposal activities;
“procurement contract” means an agreement concluded between the procuring entity and a contractor (or contractors) resulting from a tendering proceeding;
“procuring entity” means a public entity making a procurement or asset disposal to which this Act applies;
“procurement professional” means a person who has professional qualifications in procurement or supply chain management from a recognised institution and is a member of the Kenya Institute of Supplies Management established under the Supplies Practitioners Management Act, 2007 (No. 20 of 2007);
“procurement function” means a division within a procuring entity staffed with procurement professionals who are officially concerned with managing the procurement and asset disposal process and reports directly to the head of procuring entity functionally and administratively;
“professional” means a person who has professional qualifications in a specialized field and who is engaged in the practice of a skill or trade, having undertaken the relevant formal academic and professional training including undertaking practical learning in the form of apprenticeship or tutelage under the guidance of a suitably qualified and experienced person in the field of training or tutelage;
“professional body” means a body representing members of a profession, which is regulated by statute, code of conduct or rules as may be amended from time to time;
“public entity” includes—
(a) the national government or any organ or department of the national government;
(b) a county government or any organ or department of a county government;
(c) the Judiciary and the courts;
(d) the Commissions established under the Constitution;
(e) the Independent Offices established under the Constitution;
(f) a state corporation within the meaning of the State Corporations Act (Cap. 446);
(g) the Central Bank of Kenya established under the Constitution; (h) a public school within the meaning of the Basic