By Paul Emanuelli
This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
Kenya’s Public Procurement and Disposal Act 2005 established a number of statutory offences aimed at regulating ethics in government procurement. The Act made it a statutory offence to attempt to influence the evaluation of tenders and prohibited corrupt practices, fraudulent practices, and collusion. The Act also provided for debarment proceedings that can lead to a publicly listed ban of up to five years against those who have contravened the noted ethics rules, breached past contracts, misrepresented their qualifications, or refused to enter into a contract once they were selected. Highlights from the debarment provisions now contained in the updated Public Procurement and Disposal Act 2015 are reproduced below:
Definitions
…
“corruption” has the meaning assigned to it in the Anti Corruption and Economic Crimes, Act 2003 and includes, giving, receiving or soliciting of anything of value to influence the action of a public official in the procurement or disposal process or in contract execution.
…
“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, and includes collusive practices amongst bidders prior to or after bid submission designed to establish bid prices at artificial non competitive levels and to deprive the procuring entity of the benefits of free and open competition.
…
38. Inappropriate influence on evaluations, etc.
38.(1) After the deadline for the submission of tenders, proposals or quotations –
a. no person who submitted a tender, proposal: quotation shall make any unsolicited communications to the procuring entity or person involved in the procurement proceedings that might reasonably be construed as attempt to influence the evaluation comparison of tenders, proposals or quotations; and
b. no person who is not officially involved in evaluation and comparison of tenders, proposals or quotations shall attempt, in any way, influence that evaluation and comparison.
(2) A person who contravenes subsection (1) is guilty of an offence and is liable on conviction –
a. if the person is an individual, to a fine not exceeding four million shillings or to imprisonment for a term not exceeding three years or to both; or
b. if the person is a corporation, to a fine not exceeding ten million shillings.
40. Corrupt practice.
40.(1) No person, agent or employee shall be involved in any corrupt practice in any procurement proceeding.
(2) If a person or an employee or agent of a person contravenes subsection (1) the following shall apply –
a. the person shall be disqualified from entering into a contract for the procurement; or
b. if a contract has already been entered into with the person, the contract shall be voidable at the option of the procuring entity.
(3) The voiding of a contract by the procuring entity under subsection (2)(b) does not limit any other legal remedy the procuring entity may have.
(4) A person, employee or agent who contravenes subsection (1) shall be guilty of an offence.
41. Fraudulent practice.
41.(1) No person shall be involved in a fraudulent practice in any procurement proceeding.
(2) If a person contravenes subsection (1) the following shall apply –
a. the person shall be disqualified from entering into a contract for the procurement; or
b. if a contract has already been entered into with the person, the contract shall be voidable at the option of the procuring entity.
(3) The voiding of a contract by the procuring entity under subsection (2)(b) does not limit any other legal remedy the procuring entity may have.
(4) A person who contravenes subsection (1) shall be guilty of an offence.
42. Collusion.
42.(1) No person shall collude or attempt to with any other person –
a. to make any proposed price higher than otherwise have been the case;
b. to have that other person refrain submitting a tender, proposal or quotation withdraw or change a tender, proposal or quotation; or to submit a tender, proposal or quotation specified price or with any specified inclusions or exclusions.
(2) If a person contravenes subsection following shall apply –
a. both persons referred to in subsection (1) be disqualified from entering into a contract the procurement; or
b. if a contract has already been entered into either person referred to in subsection (1) contract shall be voidable at the option procuring entity.
(3) The voiding of a contract by the procuring under subsection (2)(b) does not limit any other remedy the procuring entity may have.
(4) A person who contravenes subsection (1) shall be guilty of an offence.
Part IX – DEBARMENT FROM PARTICIPATING IN PROCUREMENT PROCEEDINGS
115 – Debarment.
115.(1) The Director-General, with the approval of the Advisory Board, may debar a person from participating in procurement proceedings on the ground that the person –
a. has committed an offence under this Act;
b. has committed an offence relating to procurement under any Act;
c. has breached a contract for a procurement by a public entity;
d. has, in procurement proceedings, given false information about his qualifications; or
e. has refused to enter into a written contract as required under section 68.
(2) The Director-General, with the approval of the Advisory Board, may also debar a person from participating in procurement proceedings on a prescribed ground.
(3) A debarment under this section shall be for a period of time of not less than five years, as may be specified by the Director-General.
125 – List of debarred persons.
125. The Authority shall maintain and make available to public entities a list of persons debarred from participating in procurement proceedings under this Part.
