PUBLIC PROCUREMENT AND DISPOSAL ACT

1 LAWS OF KENYAPUBLIC PROCUREMENT AND DISPOSAL ACTNO. 3 OF 2005 Revised Edition 2013 [2012]Published by the National Council for Law Reportingwith the Authority of the [Rev. 2013] PUBLIC PROCUREMENT and DisposalNo. 3 of 2005P53-3[Issue 1]NO. 3 OF 2005 PUBLIC PROCUREMENT AND DISPOSAL ACTARRANGEMENT OF SECTIONSPART I of the of with other with international with conditions on donated II BODIES INVOLVED IN THEREGULATION OF PUBLIC PROCUREMENTA PUBLIC PROCUREMENT oversight of of of the of office of on activities of and conditions of service of of of and annual PUBLIC PROCUREMENT oversight Advisory of Advisory of Advisory of Advisory of Advisory PUBLIC PROCUREMENT Administrative Review III INTERNAL ORGANISATION OF PUBLIC ENTITIES RELATINGTO matrix and segregation of for complying with Act, 3 of 2005 PUBLIC PROCUREMENT and DISPOSAL [Rev.]

2 2013][Issue 1]P53-4 PART IV GENERAL PROCUREMENT of PROCUREMENT not to be split or to be awarded on contracts with employees, that not of PROCUREMENT of influence on evaluations, in of of PROCUREMENT to on overdue and audits relating to V OPEN sets out to to tender for preparing of tender and receipt of to of of tender validity of arithmetic of if no responsive of of award of of contract.[Rev. 2012] PUBLIC PROCUREMENT and DisposalNo. 3 of 2005P53 - 5[Issue 2] to sign to contract VI ALTERNATIVE PROCUREMENT sets out Restricted restricted tendering may be Direct direct PROCUREMENT may be Request for request for proposals may be inviting expressions of of of qualified for proposals to qualified of of successful with submitter of successful on entering into certain related Request for may be Procedure for Low-value may be Specially Permitted PROCUREMENT may VII ADMINISTRATIVE REVIEW OF PROCUREMENT for a of proceedings, of frivolous requests, to of of Review to review is additional to judicial review to 3 of 2005 PUBLIC PROCUREMENT and DISPOSAL [Rev.

3 2012][Issue 2]P53 - 6 PART VIII AUTHORITY POWERS TO ENSURE to of of by for a of frivolous requests, of to of of Review to review is additional investigation, etc., if issue before Review IX DEBARMENT FROM PARTICIPATINGIN PROCUREMENT to make for a of frivolous requests, of to of of Review to review is additional of debarred X DISPOSAL OF STORES AND of for complying with Act, on DISPOSAL to employees, of Part VIII to XI procurements and disposals by armed forces, police, obstruction, contravention of penalty.[Rev. 2013] PUBLIC PROCUREMENT and DisposalNo. 3 of 2005P53-7[Issue 1] from personal of Act, of Cap. consequential SCHEDULE PROVISIONS RELATING TO MEMBERS OF THE ADVISORY BOARDSECOND SCHEDULE PROVISIONS RELATING TO THE CONDUCT OF BUSINESS ANDAFFAIRS OF THE ADVISORY BOARDTHIRD SCHEDULE TRANSITIONAL PROVISIONSFOURTH SCHEDULE CONSEQUENTIAL AMENDMENTS[Rev.

4 2013] PUBLIC PROCUREMENT and DisposalNo. 3 of 2005P53 - 9[Issue 2]NO. 3 OF 2005 PUBLIC PROCUREMENT AND DISPOSAL ACT[Date of assent: 26th October, 2005.][Date of commencement: 1st January, 2007.]An Act of Parliament to establish procedures for efficient PUBLIC procurementand for the DISPOSAL of unserviceable, obsolete or surplus stores, assetsand equipment by PUBLIC entities and to provide for other related matters[Act No. 3 of 2005, 171/2006, Act No. 9 of 2007, Act No. 10 of 2010, Act No. 15 of 2013.]PART I PRELIMINARY1. Short titleThis Act may be cited as the PUBLIC PROCUREMENT and DISPOSAL Purpose of the ActThe purpose of this Act is to establish procedures for PROCUREMENT and thedisposal of unserviceable, obsolete or surplus stores and equipment by publicentities to achieve the following objectives (a)to maximise economy and efficiency;(b)to promote competition and ensure that competitors are treated fairly;(c)to promote the integrity and fairness of those procedures;(d)to increase transparency and accountability in those procedures;(e)to increase PUBLIC confidence in those procedures.

5 And(f)to facilitate the promotion of local industry and Definitions(1) In this Act, unless the context otherwise requires accounting officer means (a)for a PUBLIC entity other than a local authority, the person appointedby the Permanent Secretary to the Treasury as the accountingofficer or, if there is no such person, the chief executive of thepublic entity; or(b)for a local authority, the town or county clerk of the local authority; Advisory board means the PUBLIC PROCUREMENT oversight AdvisoryBoard established under section 21; Authority means the PUBLIC PROCUREMENT oversight Authority establishedunder section 8; candidate means a person who has submitted a tender to a procuringentity;No. 3 of 2005 PUBLIC PROCUREMENT and DISPOSAL [Rev. 2013][Issue 2]P53 - 10 citizen contractor means a natural person or an incorporated companywholly owned and controlled by persons who are citizens of Kenya; contractor means a person who enters into a PROCUREMENT contract witha procuring entity; corruption has the meaning assigned to it in the Anti-corruption andEconomic Crimes Act, 2003 (No.)

6 3 of 2003) and includes the offering, giving,receiving or soliciting of anything of value to influence the action of a publicofficial in the PROCUREMENT or DISPOSAL process or in contract execution; Director-General means the Director-General of the Authority providedfor under section 10; DISPOSAL means the divestiture of PUBLIC assets, including intellectualand proprietary rights and goodwill and other rights of a procuring entity byany means including sale, rental, lease, franchise, auction or any combinationhowever classified, other than those regulated by any other written law; fraudulent practice includes a misrepresentation of fact in order toinfluence a PROCUREMENT or DISPOSAL process or the exercise of a contract tothe detriment of the procuring entity, and includes collusive practices amongstbidders prior to or after bid submission designed to establish bid prices atartificial non competitive levels and to deprive the procuring entity of the benefitsof free and open competition; goods includes raw materials, things in liquid or gas form, electricity andservices that are incidental to the supply of the goods; local contractor means a contractor who is registered in Kenya underthe Companies Act (Cap.

7 486) and whose operation is based in Kenya; Minister means the Minister responsible for matters relating to finance; prescribed means prescribed by regulation under this Act; PROCUREMENT means the acquisition by purchase, rental, lease, hirepurchase, license, tenancy, franchise, or by any other contractual means of anytype of works, assets, services or goods including livestock or any combination; procuring entity means a PUBLIC entity making a PROCUREMENT to whichthis Act applies; PUBLIC entity means (a)the Government or any department of the Government;(b)the courts;(c)the commissions established under the Constitution;(d)a local authority under the Local Government Act (Cap. 265);(e)a State corporation within the meaning of the State CorporationsAct (Cap. 446);(f)the Central Bank of Kenya established under the Central Bank ofKenya Act (Cap. 491);(g)a co-operative society established under the Co-operativeSocieties Act (Cap.

8 490);[Rev. 2013] PUBLIC PROCUREMENT and DisposalNo. 3 of 2005P53-11[Issue 1](h)a PUBLIC school within the meaning of the Education Act (Cap. 211);(i)a PUBLIC university within the meaning of the Universities Act ( );(j)a college or other educational institution maintained or assistedout of PUBLIC funds; or(k)an entity prescribed as a PUBLIC entity for the purpose of thisparagraph; PUBLIC funds has the meaning assigned to it in the Exchequer and AuditAct (Cap. 412) and includes monetary resources appropriated to procuringentities through the budgetary process, as well as extra-budgetary funds,including aid grants and credits, put at the DISPOSAL of procuring entities byforeign donors, and revenues of procuring entities; Review board means the PUBLIC PROCUREMENT Administrative ReviewBoard established under section 25; services means any objects of PROCUREMENT or DISPOSAL other than worksand goods and includes professional, non professional and commercial types ofservices as well as goods and works which are incidental to but not exceedingthe value of those services; the regulations means regulations made under this Act.

9 Urgent need means the need for goods, works or services incircumstances where there is an imminent or actual threat to PUBLIC health,welfare, safety, or of damage to property, such that engaging in tenderingproceedings or other PROCUREMENT methods would not be practicable; works means the construction, repair, renovation or demolition ofbuildings, roads or other structures and includes (a)the installation of equipment and materials;(b)site preparation; and(c)other incidental services.(2) A regulation prescribing a PUBLIC entity for the purpose of paragraph (k) ofthe definition of PUBLIC entity in subsection (1) may prescribe a class of publicentities or may specify particular PUBLIC Application of Act(1) This Act applies with respect to (a) PROCUREMENT by a PUBLIC entity;(b)contract management;(c)supply chain management, including inventory and distribution; and(d) DISPOSAL by a PUBLIC entity of stores and equipment that areunserviceable, obsolete or surplus.

10 (2) For greater certainty, the following are not procurements with respect towhich this Act applies (a)the retaining of the services of an individual for a limited term if, inproviding those services, the individual works primarily as though hewere an employee;No. 3 of 2005 PUBLIC PROCUREMENT and DISPOSAL [Rev. 2013][Issue 1]P53-12(b)the acquiring of stores or equipment if the stores or equipment arebeing disposed of by a PUBLIC entity in accordance with the proceduredescribed in section 129(3)(a);(c)the acquiring of services provided by the Government or a departmentof the Government.(3) For greater certainty, the following are procurements with respect to whichthis Act applies (a)the renting of premises, except as described under subsection (2)(c);(b)the appointing, other than under the authority of an Act, of anindividual to a committee, task force or other body if the individual willbe paid an amount other than for expenses;(c)the acquiring of real Conflicts with other Acts(1) If there is a conflict between this Act or the regulations made under this Actand any other Act or regulations, in matters relating to PROCUREMENT and DISPOSAL ,this Act or the regulations made under this Act shall prevail.