The Public Procurementand Asset Disposal Amendment Act 2022 - as Plain Text by MWakili

NATIONAL COUNCIL FOR LAW REPORTING LIBRARY SPECIAL ISSUE Kenya Gazette Supplement No.

122 (Acts No.

32) REPUBLIC OF KENYA KENYA GAZETTE SUPPLEMENT ACTS, 2022 NAIROBI, 12th July, 2022 CONTENT Act Page 665 Act, 2022 The Public Procurement and Asset Disposal (Amendment) MATIONAL COUSCIt M29 JuL 2022 P.

O.

Box l 044cj - U01C0, NAiROBI, KENYA TEL: 2719231 FAX; 2712694 PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER, NAIROBI 665 THE PUBLIC PROCUREM ENT AND ASSET DISPOSAL (AMENDMENT) ACT, 2022 No.

32 of 2022 Date of Assent: 6th July, 2022 Date of Commencement: 26th July, 2022 AN A CT of Parliam ent to am end the Public Procur em ent and Asset Disposal Act and for connected purposes ENACTED by the Parliament of Kenya, as follows Short ti tle.

1.

This Act may be cited as the Public Procurement and Asset Disposal (Amendment) Act, 2022.

Amendment of 2.

Section 2 of the Public Procurement and A sset section 2 of No.

33 of 20 15.

Act, Disposal Act, in this Act referred to as the principal is am ended (a) in the definition of procurement professional, by deleting the words established under the Supplies Practitioners Management Act, 2007 appearing i mmediately after the word Management and substituting therefor the words or any other procurement or supply chain professional body recognised in Kenya; (b) by inserting the following new definitions in their proper alphabetical sequence complex and specialized contracts means contracts that include procurement where the terms and conditions of an agreement are different from standard commercial terms and conditions, and i ncludes contracts f or infrastructural works performed under intern ational agreements containing international terms and conditions; No.

17 of 20 15.

local contractor means a person or a fi rm registered in Kenya under the Companies Act, 2015 or any other written law and whose operation is based in Kenya; Amendment of 3.

Section 9 of the principal Act is amended in section 9 of No.

33 of 20 15.

subsection (1) by inserting the following new paragraph immediately after paragraph (r) 666 2022 Public Procurement and Asset Disposal (Amendment) No.

32 it (ra) develop, promote and support the training and capacity development of persons involved in procurement and asset disposal; Amendment of 4.

Section 26 of the pri ncipal Act is amended in section 26 of No.

33 of subsection (6) by deleting the word draft appeari ng 2015.

immediately after the words publicize the and substituting therefor the word annual.

Amendment of 5.

Section 39 of the pri ncipal Act is amended by section 39 the of No.

33 of deleting the word Board appearing immediately after 2015.

words words order of the and substituting therefor the 66 Director-General.

Amendment of 6.

Section 40 of the pri ncipal Act is amended in section 40 of No.

33 of subsection (2) by deleting the word Board appeari ng 2015.

immediately after the words attention of the and substituting therefor the words Director-General.

Amendment of 7.

Section 41 of the pri ncipal Act is amended in section 41 subsection (1) by inserting the following new paragraph of No.

33 of 2015.

immediately after paragraph (i) 66 (j) is determined by the Review Board to have filed a request that is fri volous or vexatious or was made solely for the purpose of delaying the procurement proceeding or a performance of a contract.

I nsertion of a new 8.

The pri ncipal Act is amended by inserting the section 43A in following new section immediately after section 43 No.

33 of 20 15.

Authority to enter 43 A.

(1) When conducting investigations, premises.

inspections, assessments and reviews relating to contracts, procurement and asset disposal proceedings, anyone authori zed by the Authori ty may enter any premises of a procuri ng entity, at a reasonable time and inspect the premises to make any inquiri es that may be necessary for the collection of i nf orm ation.

(2) Where an authorized person is refused entry or is prevented from entering premises, a magistrate may, on application by the Authority, issue a warrant authorizing the Police to enter the premises, using such force as may be reasonably necessai^ and to 667 No.

32 Public Procurement and Asset Disposal (Amendment) 2022 conduct the search and obtain the required i nf orm ation.

Amendment of 9.

Section 44 of the principal Act is amended by section 44 of No.

after 33 of 20 15.

inserting the following new subsection inunediately subsection (4) (5) Where a public entity lacks capacity to comply with this Act, an accounting officer shall seek assistance from the National Treasury.

Amendment of 10.

Section 46 of the principal Act is amended section 46 of No.

33 of 20 15.

(a) in subsection (4) by deleting paragraph (c) and substituting therefor the following paragraph a (c) have as its secretary, the person in charge of the procurement function or an officer from the procurement function appointed, in writing, by the head of procurement function;; (b) by deleting subsection (6).

Amendment of 11.

Section 48 of the principal Act is amended in section 48 of No.

33 of 20 15.

subsection (2) by deleting the words procuring unit of appearing inunediately after the words recommendation and substituting therefor the words head of the procurement function.

Amendment of 12.

Section 51 of the principal Act is amended in section 51 of No.

and 33 of 20 15.

subsection (2) (b) by deleting the words procurement disposal unit appearing inunediately after the words 99it and substituting therefor the words establish aa procurement function.

Amendment of 13.

Section 53 of the principal Act is amended by section 53 of No.

after 33 of 20 15.

inserting the following new subsections immediately subsection (11) (12) Upon submission of the procurement plans to the National Treasury pursuant to section 44(2)(c) of this Act, the accounting officer of a procuring entity shall publish and publicize its approved procurement plan as invitation to treat on itsw ebsite.

(13) On receipt of the procurement plans submitted by the procuring entities, the National Treasury shall publish and pubhcize the procurement plans as invitation to treat on the state tender portal.

668 No.

32 2022 Public Procurement and Asset Disposal (Amendment) Amendment of 14.

Section 54 of the pri ncipal Act is amended by section 54 of No.

after inserting the following new subsections immediately 33 of 20 15.

subsection (2) ( 6 (2A) The head of the procurement function shall carry out market surveys to inform the placing of orders or decision making on a procurement by the relevant awarding authority.

(2B) For infrastructure projects the head of the procurement function in liaison with the head of the technical function in a procuri ng entity shall, prepare a market survey at the beginning of every financial year of the cost of goods and services and thereafter prepare a current cost handbook to be revised every six months for use in the decision making in the procurement process by the procuri ng entity, of 15.

Section 67 of the pri ncipal Act is amended in Amendment section 67 of No.

section subsection (4), by deleting the expression 33 of 20 15.

67(2)(d)(iii)" appeari ng i mmediately after the words referred to in and substituting therefor the expression section 68(2)(d)(iii).

Amendment of 16.

Section 69 of the pri ncipal Act is amended by section 69 of No.

95 inserting the words and delegation of responsibility 33 of 20 15.

99 immediately after the words procurement approvals appeari ng in the marginal note.

Amendment of 17.

Section 71 of the pri ncipal Act is amended in section 71 of No.

,99 subsection (3) by deleting the word tenderer appeanng 33 of 20 15.

immediately after the word A and substituting therefor the words procuring entity.

Amendment of 18.

Section 80 of the pri ncipal Act is amended in section 80 of No.

subsection (1) by deleting the expression under section 33 of 20 15.

82(3) appeari ng immediately aft er the word rejected.

Repeal and 19, The pri ncipal Act is amended by repealing section replacement of new 82 of the Act and substituting therefor the following section 82 of No.

section 33 of 20 15.

Correction, revision, 82.

(1) Subject to subsection (2) of this adj ustment or amendment of section, the tender sum as submitted and tender.

read out duri ng the tender opening shall be absolute and final and shall not be the subject of correction, revision, adjustment or or amendment in any way by any person entity.

669 2022 Public Procurement and Asset Disposal (Amendment) No.

32 (2) For avoidance of doubt, the provisions of subsection (1) shall not apply to sections 103, 131 and 141 of this A ct.

Amendment of 20.

The principal Act is amended in section 86(1) by section 86 of No.

33 of 20 15.

inserting the following proviso immediately after paragraph (d)- Provided that the provisions of this subsection shall not apply to section 141 of this Act.

Amendment of 21.

Section 89 of the principal Act is amended in section 89 of No.

33 of 20 15.

paragraph (b), by deleting the expression 118(2) 96(2) appearing immediately after the expression sections and and substituting therefor the expression 118(1).

Amendment of 22.

Section 92 of the principal Act is amended by section 92 of No.

33 of 20 15.

(a) re-numberi ng the existing provision as subsection (l ); and (b) inserting the f ollowing new subsection immediately after subsection (1) (2) The procedure f or competitive negotiations set out in sections 131, 132 and 133 of this Act shall apply, with necessary modifications, to procurement of goods, works and non-consultancy services.

A mendment of 23.

Section 96 of the pri ncipal Act is amended section 96 of No.

33 of 20 15.

(a) in subsection (2), by inserting the following words immediately after the words nationwide 99 circulation ( 6 or a notice in at least tw o free to air television stations and two radio stations of national reach ; (b) in subsection (4), by inserting the following words immediately after the words county-wide 99 circulation a or a notice in at least tw o free to air television stations and two radio stations of national reach.

Amendment of 24.

Section 98 of the pri ncipal Act is amended in section 98 of No.

33 of 20 15.

subsection (1) by deleting the word and appearing immediately aft er the word documents.

Amendment of 25.

Section 114 of the pri ncipal Act is amended in section 114 of No.

33 of 20 15.

subsection (6) by deleting the words procurement 670 2022 No.

32 Public Procurement and Asset Disposal (Amendment) management unit appearing immediately after the word A and substituting therefor the words procurement f unction.

Amendment of 26.

Section 117 of the principal Act is amended- section 117 of No.

33 of 20 15.

(a) in paragraph (a), by deleting the expression section 74 appearing immediately after the words subject to and substituting therefor the expression section 73; and (b) by deleting the marginal note and substituting therefor the words initiation of procurement.

Amendment of 27.

Section 119 of the principal Act is amended in section 119 of No.

subsection (1) by deleting the word may appearing 33 of 20 15.

immediately after the words procuring entity and substituting therefor the word shall.

Amendment of 28.

Section 121 of the principal Act is amended section 121 of No.

33 of 20 15.

(a) in subsection ( 1), by deleting the words accounting officer of a procuring entity appearing immediately after the word The and evaluation substituting therefor the words committee; (b) by i nserting the following new subsection immediately after subsection (4) (5) Notwithstanding provisions of subsection (3), where a repeat process fails to yield the requisite numbers of qualified candidates, the procuring entity shall proceed with the subject procurement and make a report to the Authority.

Amendment of 29.

Section 124 of the principal Act is amended section 124 of No.

33 of 20 15.

(a) by deleting subsection (14); (b) in subsection (15), by deleting the words for approval appearing immediately after the words the Authority and substituting therefor the words within fourteen days; and (c) by inserting the following new subsection immediately after subsection (15) 671 No.

32 2022 Public Procurement and Asset Disposal (Amendment) (16) The Authority shall i ssue written directions and guidelines governing the reporting requirements for use of alternative selection methods by the accounting officers of procuring entities.

Amendment of 30.

Section 138 of the principal Act is amended by section 138 of No.

33 of deleting subsection (5) and substituting therefor the 2015.

following subsection (5) This section shall not apply to procurement contracts awarded by national security organs through classified procurement methods and procedures provided for under Part Vni.

Amendment of 31.

Section 139 of the principal Act is amended by section 139 of No.

33 of 2015.

(a) deleting subsection (2) and substituting therefor the following new subsection (2) An accounting officer of a procuring entity, on the recommendation of an evaluation committee or as prescribed in the signed Contract Agreement, may approve the request for (a) use of prime costs; (b) use of contingencies; (c) reimbursable costs; and (d) use of provisional sums.

(b) inserting the following new subsection immediately after subsection (2) (2A) Despite subsection (2), an accounting officer of a procuring entity, on the recommendation of an evaluation committee or as prescribed in the signed contract agreement, may approve the request for the extension of the contract period, which request shall be accompanied by a letter from the tenderer making justifications for such extension.

(c) deleting subsection (4) and substituting therefor the following new subsection (4) For the purposes of this section, any variation of a contract shall only be considered if the following are satisfied 672 No.

32 Public Procurement and Asset Disposal (Amendment) 2022 (a) the price variation from the original price is based on the prevailing consumer price index obtained from Kenya National Bureau of Statistics; (b) the quantity variation for goods does not exceed fifteen per cent of the original contract quantity; (c) the price or quantity variation is to be executed within the period of the contract; (d) the cumulative value of all con tr ac t variations for goods do not result in an increment of the total contract price by more than twenty five per cent of the original contract price; and (e) the cumulative value of professional services does not result in an increment of the total contract price by more than twenty-five per cent of the original contract price.

(d) inserting the following new subsection immediately after subsection (6) (7) The method for computing price variation under this section shall be prescribed in regulations.

Repeal and 32.

The principal Act is amended by repealing section replacement of 141 and substituting therefor the following new section section 14 1 of No.

33 of 20 15.

Framework 141.

(1) Subject to any prescribed contracting and multiple awards.

restrictions an accounting officer of a procuring entity may apply framework contracting arrangements by making awards of indefinite-delivery contracts and multiple awards of indefinite or definite quantity contracts for procurements under this Act.

(2) For the purposes of subsection (1), multiple award means award of separate (partial) contracts to two or more bidders of the same item.

Amendment of 33.

Section 167 of the principal Act is amended section 167 of No.

33 of 20 15.

(a) by inserting the following proviso immediately after subsection (2) 673 2022 Public Procurement and Asset Disposal (Amendment) No.

32 cc Provided that this shall not apply to tenders reserved for women, youth, persons with disabilities and other disadvantaged groups, (b) in subsection (4) (b), by deleting the expression section 62 appearing immediately after the words in accordance with and substituting therefor the expression section 63.

Amendment of 34.

Section 169 of the principal Act is amended by section 169 of No.

33 of 20 15.

(a) re-numbering the existing provisions as subsection (1); and (b) inserting the f ollowing new subsection immediately after subsection (1) (2) Notwithstanding the provisions of subsection (1), filing fees for review by candidates under reserved procurements for women, youth, persons with disabilities and other disadvantaged groups may be waived by the secretary or where required fees shall be as prescribed.

Amendment of 35.

Section 172 of the principal Act is amended by section 172 of No.

> 5 inserting the words and be debarred by the Authority 33 of 20 15.

immediately after the words deposit paid.

Amendment of 36.

Section 176 of the principal Act is amended section 176 of No.

33 of 20 15.

(a) in subsection (l )(e), by deleting the expression n section 78 appearing immediately after the words opened under and substituting therefor the expression section 77(6); (b) in subsection (l )(f), by deleting the expression ti section 66 appearing immediately after the word it under and substituting therefor the expression it section 67 ; and (c) in subsection (l )(h), by deleting the expression it section 60 appearing immediately af^ter the words contrary to and substituting therefor the expression section 54.

Amendment of the 37.

The First Schedule is amended by deleting First Schedule of paragraph 3.

No.

33 of 20 15.

Amendment of the 38.

The Second Schedule is amended by deleting Second Schedule paragraph 3.

of No.

33 of 20 15.

Amendment of the 39.

The Third Schedule is amended Third Schedule of No.

33 of 20 15.

674 2022 Public Procurement and Asset Disposal (Amendment) No.

32 (a) in paragraph 2, by deleting the expression section 66 and substituting therefor the expression ti section 67 ; (b) in paragraph 3(1), by deleting the expression 95 section 67 and substituting therefor the expression section 68(2); (c) in paragraph 3(2), by deleting the expression a section 51(2) and substituting therefor the expression section 68(2); and (d) in paj agraph 4, by deleting the expression section 67 and substituting therefor the expression a section 138.

.