References: Section 43 (1-3) of the Public Procurement and Disposal Act, 2005 provides that an employee, agent or member of a procurement board or committee who has a conflict of interest may neither participate in proceedings nor take part in decisions relating to the contract. Such a person also must disclose such conflict to the procuring entity, failing which any contract won could be declared void.

References: Section 9 (c) of the Public Procurement and Disposal Act provides that the Public Procurement Oversight Authority (PPOA) must assist in the implementation and operation of the procurement system by advising and assisting procuring entities. The law further requires PPOA to develop, promote and support training and professional development of procurement staff, giving written directions to procurement entities that it should ensure engage professional staff.

References: That conflict of interest regulations are not enforced diligently is evident in the Anglo-Leasing saga in which contracts were awarded to offshore companies in which key Government officers have interests. More recently, it has been revealed that members of the former president's family might have established off-shore facilities to buy shares in the privatized Safaricom. The most far-reaching indictment must however be a High Court advocate's analysis entitled "Procurement (Act) is not Tamper-proof', found at www.tikenya.org/documents/Adili92.pdf

References: As with other public officers, procurement officers must declare their assets annually as mandated by Part IV of the Public Officers Ethics Act.

References: Section 4 of the Public Procurement and Disposal Act, Part V, Part VI Sections 72A-72C provide that all procurements by public entities, contract management, supply chain management and disposal of stores and equipment that are unserviceable, obsolete or surplus. Transactions will be by open tender, with provisions that allow for restricted tendering, direct procurement and request for proposals.

References: Public Procurement and Disposal Act, Section 74, Part VI allows that under exceptional circumstances stipulated by law, direct procurement may be used "as long as the purpose is not to avoid competition." Direct procurement is permitted when there is only a single supplier and there is no reasonable alternative for the good; and where there is an unforeseen urgency that alternative procurement methods cannot accommodate.

References: Public Procurement and Disposal Act, sections 25 and 100 provide that procurement complaints are handled by the Review and Appeals Board, whose decisions are final unless a judicial review of its decision commences within 14 days.

References: Section 100, of the Public Procurement and Disposal Act provides that unsuccessful tenders who are dissatisfied with the decisions of the Public Procurement Administrative Review Board can go to court within 14 days.

References: Public Procurement and Disposal Act, Part IX and sections 115, 117, 122 and 125 provide that companies guilty of violations may be shut out of future bids, at the discretion of the director general. After such rulings, affected parties may seek a review of the matter, after which the Review Board can confirm or overturn the director general's debarment. A confirmed debarment can be challenged in the High Court within 14 days. The authority must publish and circulate a list of all debarred persons or entities.

References: It is unclear the extent to which companies that have previously violated regulations are barred from future activities. For example, the proprietor of a road construction firm that had been blacklisted by the NARC government has since entertained guests in the president's home district, suggesting he cannot be an outsider. Interestingly, while the Finance ministry's website had a link to a list of companies barred from future procurement transactions, that link is no longer there on either the ministry website or that of the Public Procurement Oversight Authority at [ LINK ]

Might this suggest the government has toned down on the need to expose miscreants?

References: Public Procurement and Disposal Act, Section 54 requires that procuring entities must "take (reasonable) steps to bring the invitation to tender to the attention of those who may wish to submit tenders." Law stipulates the frequency with which different tenders must be advertised in the media.

References: The government must publish contracts it has awarded, as stipulated by the Public Procurement and Disposal Act, Section 46.

References: The new Public Procurement and Disposal Act is available online at various Web sites, including those of the finance ministry and the Kenya Anti-Corruption Commission. The law also can be purchased at the Government Printers in Nairobi.

References: [ LINK ], [ LINK ]

References: Given the expenditure levels involved in procurement, interested citizens can access the laws either through the Internet or by purchasing the documents at a nominal fee from Government Printers.

References: The extent to which major procurements are widely advertised in practice is difficult to tell. However, the daily print media is full of tender advertisements while the Treasury/PPOA Web site also has an obviously incomplete log of procurement contracts: see [ LINK ]

Often, the emergence of a scandal brings to the fore the underhand dealings in procurement.

Peer Review Comments: The government does not advertise in all print media.

References: The average citizen is unlikely to be too interested in procurement activities and would therefore not be too concerned with who has won what. However, procurement stakeholders have the right of information (by law) and can demand outcomes from the government department apart from getting it from other sources, such as the media and internet.