Public procurement in Kenya

Law and regulator

The Public Procurement and Asset Disposal Act 2015 is the main law ¹. Kenya Law publishes a revised version dated 31 December 2022 ¹. The Public Procurement and Asset Disposal Regulations 2020 were published as Legal Notice 69 on 30 April 2020 and commenced the same day ².

The Public Procurement Regulatory Authority describes itself as the body that monitors, assesses and reviews the procurement and asset disposal system ³. Its website links to the Act, the Regulations and the Public Procurement Information Portal at tenders.go.ke ³.

Procurement methods

Section 91(1) says open tendering shall be the preferred method for goods, works and services ¹. Under section 91(2), an entity may use another method only if the Act allows it and its conditions are met ¹. Section 92 lists these methods ¹.

• Open tender, two-stage tendering and design competition ¹.
• Restricted tendering and direct procurement ¹.
• Request for quotations, low-value procurement and electronic reverse auction ¹.
• Force account, competitive negotiations, request for proposals and framework agreements ¹.
• Any other method set in regulations and described in the tender documents ¹.

Direct procurement under section 103

Section 103(2) allows direct procurement in five cases ¹. A public officer who breaches these conditions commits an offence under section 103(3) ¹.

• Only one supplier can provide the goods, works or services, or one supplier holds exclusive rights, and no reasonable alternative exists ¹.
• War, invasion, disorder, natural disaster or urgent need makes other methods impractical, and the urgency was not foreseeable or caused by the entity's delay ¹.
• A catastrophic event creates an urgent need and other methods would take too long ¹.
• Additional supplies are needed from an existing supplier for standardization or compatibility ¹.
• The purchase is from a public entity at a fair and reasonable price ¹.

Procedure and reporting

Section 104 requires the accounting officer to issue a tender document, appoint an ad hoc evaluation committee to negotiate, confirm the required approvals and sign a written contract ¹.

Regulation 90 of the 2020 Regulations requires prior written approval of the accounting officer, except in urgent need ². The accounting officer must be satisfied the price is at the prevailing real market price ². Direct procurements above KSh 500,000 must be reported to the Authority within 14 days after notification of the award ². The usual 14-day wait between award notice and contract signing does not apply ².

Review and appeal

Section 27(1) establishes the Public Procurement Administrative Review Board as a central independent appeals board ¹. Its function is to review, hear and determine tendering and asset disposal disputes ⁴.

A bidder may seek administrative review within 14 days of notification of award or of the alleged breach, under section 167(1), as quoted by the Court of Appeal in February 2024 ⁵. In that case the Board ruled on 17 November 2023, the High Court ruled on 4 January 2024 and the Court of Appeal ruled on 23 February 2024 ⁵.

PPPs and privately initiated proposals

The Public Private Partnerships Act was assented to on 7 December 2021 and commenced on 23 December 2021 ⁶. It sets up a Public Private Partnership Committee, a Directorate and a Petition Committee ⁶.

Section 40 lets private parties submit privately initiated proposals for projects that match national infrastructure priorities ⁷. Section 41 requires the PPP Directorate, with the contracting authority, to carry out due diligence on the private party before evaluating a proposal ⁷. In November 2023 the Directorate said it planned to hire a firm through an international tender to run these integrity checks ⁷.