a)
Enumerate FIVE procurement methods prescribed under the Public Procurement
Act 2015 and outline one circumstance appropriate for the use of each
procurement method identified.
Open Tendering
Pursuant
to the Public Procurement Act, Open tendering is the most preferred method of
procurement subject to the circumstances of a particular case[1].
Open tendering is suitable for good, works and services whose minimum
expenditure is six million Ksh (6,000,000)[2].
The Procuring entity shall take all the reasonable steps to advertise the
tender to the public[3].
These includes; the newspapers, government portals or a conspicuous place at
the procuring entity’s premise[4].
After advertising the procuring entity shall provide the relevant tender
documents on their website[5]
Two Stage Tendering
A
procuring entity by virtue of complexity, inadequate knowledge or advancements
in technology may use this method of tendering. This may be because it may not
be feasible or rather effective for the procurement entity to formulate
specifications of the goods, service or works required[6].
The
Procedure of this method is that the tenderers in stage one will submit their
proposals without a tender price[7].
Based on their submissions the procuring entity shall shortlist the preferred
tenderers. In stage two, the shortlisted tenderers will submit a final tender
with prices based on the specifications of the procuring entity[8].
The procuring entity may consult experts[9].
The Procurement entity may also modify the specifications as long as the same
is communicated to the tenderers in the invitation to submit final tenders.
Design Competition Tendering
When
a procuring entity wants to get the best architectural design, physical
planning or any other scheme, engineering or graphic design it may use this
method[10] .
The procedure is that the procuring entity should invite design proposals from
the public[11].
The preparation for the invite must state; name and address of procuring
entity, description of technical functions and an explanation where the tenders
will be delivered and opened etc. After the submission of proposals by the
tenderers, an evaluation committee will assess the designs and the top 3
designs will receive a prize as honorarium[12]
Restricted Tendering
A
procuring entity may use this form of tendering process where the cost and time
required to assess a large number of tenders will be disproportionate to the
value of the goods[13].
Restricted tendering is when the tender will only be open to a few select
suppliers and not the broad public in general.
Direct Procurement
As
long as the purpose is not to avoid competition, a procuring entity may use
this form of procurement. This mode of procurement is suitable when the
circumstances are such that there are only a few set of suppliers that can
deliver the specific goods that are required[14].
b)
One of the key objectives of the Law is
to achieve value for money in public procurement. Explain the term “value for
money” in the context of public
procurement and identify any THREE
ways through which the Act ensures that the value for money objective is
achieved.
Value for money is the concept used
to assess an organizations capacity to obtain the maximum benefit from the
goods, services or works that are acquired. It must take into account a complex
mix of factors which include quality, cost, use of resources and fitness for
the purpose. It is meant to ensure no gold
plating. It calls for a balance between economics, efficiency and
effectiveness. It is a critical element in the awarding of tenders which is
meant to ensure the lowest cost which fits the purpose envisaged by the
procuring entity.
Section 139 of the Act covers the
variations of procurements contracts. It states that no variation of a
procurement contract by the government may raise the price upwards within the
first year of performance. This ensures that within the first year of
performance the government will get the value for their money fully. This is a
way through which the Public Procurement Act enhances the concept of value for
money
Section 3(h) of the Public
Procurement Act states that a guiding principle of public procurement is the
maximization of the value for money.
Section 102(b) of the Public
Procurement Act states that restricted tendering will be preferred as a method
of procurement where the cost associated with processing a large number of
tenders is disproportionate to the value of the goods being acquired.
c) Analyze
any FOUR other objectives of the
Kenyan Government public procurement policy and
how their achievement could sacrifice the value for money objective
Probity and Integrity
is the prevention of corruption in the procurement. It has two aspects; it is
meant to prevent actual corruption and secure the appearance of probity.
Probity may affect value for money when the need to ensure probity requires
finances that are disproportionate to the value of goods being acquired. As
such necessary probity measures and vetting would if applied sacrifice the
value for money of the goods that are being obtained
Accountability,
As members of the public we must make sure that the government is responsible
with the public money as in essence it is our money. As such the government may
be required to publish information relating to procurement matters and install
accountability mechanism. At times this mechanisms may be too costly as
compared to the value of the goods being acquired in a specific procurement, in
this essence it sacrifices value for money.
Equal treatment of Providers,
This objective calls for the just and unbiased treatment of the providers. This
objective may clash with the objective of value for money as it is important to
decide how much weight to give to the equal treatment. If a late and
non-conforming tender is received and has a cheaper financial consideration
then value for money would demand that it be accepted but the objective of
equal treatment will disallow its admission. In this essence it may sacrifice
value for money.
Fair Treatment of Suppliers, this objective
demands that suppliers are accorded their rights under Article 47 of the
Constitution and most importantly that the procurer must enhance the rules of
natural justice. If a proposal is rejected the law demands that the bidder be
notified why and be given a chance to defend himself before the tender is
awarded to someone else. However if there are a large number of bidders it
would be disproportionate to observe this rules as it may defeat the value for
money of the goods being procured.
[1]
Section 91(1) Public Procurement and Disposal Act, 2015
[2] 1st
Schedule Public Procurement Regulations 2006
[3]
Section 96(1) Public Procurement and Disposal Act, 2015
[4]
Section 96(2) Public Procurement and Disposal Act, 2015
[5]
Section 98(1) Public Procurement and Disposal Act, 2015
[6]
Section 99(1) Public Procurement and Disposal Act, 2015
[7] Section
99(2) Public Procurement and Disposal Act, 2015
[8]
Section 99(3) Public Procurement and Disposal Act, 2015
[9]
Section 99(7) Public Procurement and Disposal Act, 2015
[10] Section
100 Public Procurement and Disposal Act, 2015
[11] Section
101(1) Public Procurement and Disposal Act, 2015
[12]
Section 101(5) Public Procurement and Disposal Act, 2015
[13]
Section 101(2) Public Procurement and Disposal Act, 2015
[14]
Section 104 Public Procurement and Disposal Act, 2015
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