Public procurement in Kenya is regulated by the Public Procurement and Asset Disposal Act, adopted in December 2015. The procurement system is decentralized, with each procuring entity conducting procurement procedures separately, using standardized tender documentation. The public procurement (PP) law has some transparency elements, but mostly accommodates paper-based procurement that is prevalent in the country. Electronic procurement is offered as one option (electronic reverse auction) among many and can only be used in “exceptional cases”, if the procuring entity has a procurement portal that is approved by the Public Procurement Authority.
The National Treasury is charged with policy development, while the Public Procurement Regulatory Authority (PPRA) is given the management role, which includes monitoring of processes, data collection and analysis, developing standard documentation, dispute resolution, and so forth.
In June 2018, the President signed the Executive Order No. 2 requiring all procuring entities to publish procurement information (detailed information about the tender winner, description of the subject of procurement, members of the Evaluation and Inspection Committees) on a variety of public platforms, and obligating the National Treasury to ensure that all procurement are undertaken through the e-procurement module by January 1, 2019. The National Treasury already runs an e-procurement system, however, it is part of the Integrated Financial Management System that is currently accessible only for registered suppliers and not to outside observers.
The presidential order points to a realization of the importance of moving away from a paper-based system to an electronic one. This is a positive development that should pave the way for a full-scale transition later down the line. Centralized e-procurement offers tremendous benefits related to increased efficiency due to elimination of record keeping needs, speeding up of procurement processes, slashing corruption by reducing human-to-human contact, boosting competition through elimination of geographic barriers and various fees, and automatic generation of data that can be used for analysis. Currently, a large part of Kenya’s PP legislation and guidelines prepared by the Procurement Authority deal with the management of PP records. Moving to a centralized e-procurement system would eliminate this problem by removing the need to keep physical documents altogether.
Pursuant to the presidential Executive Order, the PPRA also runs a public procurement information portal, where procuring entities are required to upload tender notices and results each month. However, the database does not seem to be complete; e.g. inspection/evaluation information is completely absent.
Currently, transparency is not among the guiding principles of PPL in Kenya, instead, the law limits openness of procurement information for reasons of confidentiality. To lay a stronger foundation for the planned transition to e-procurement, a serious discussion needs to be launched on the issue, taking into account the experience of other countries. Since the Kenyan PPL already obligates procurers to keep records of many important pieces of procurement information, adding the transparency component would be a relatively simple undertaking once a consensus is achieved among key stakeholders.
Public Procurement Legislation available at – link.
Public Procurement Information Portal of Kenya – link.