The Public Procurement Administrative Review Board

Introduction
Procurement has been defined as the acquisition by purchase, rental, lease, license, franchise or
by any other contractual means of any type of works, assets, services or goods. 1 It has also been
defined as the purchasing, hiring or obtaining by any other contractual means of goods,
construction and services. It is an activity which is undertaken by both public and private
entities. However, where undertaken by public entities, there are certain procedures which must
be followed so as to ensure that the public gets the most efficient and economical deal from the
procurement process. The need for transparent and effective procurement procedures right from
the process of bidding and awarding tenders to resolving disputes arising from the procurement
process is underscored by the fact that where public bodies are concerned, it usually involves use
of taxpayers money and that secondly, whatever goods or services procured are usually meant
for public use or benefit. Consequently, it is of paramount importance that a streamlined
procurement process is put in place so as to minimize any chances of wastage of public
resources. It goes without say that an effective dispute resolution process is part and parcel of a
working procurement process. The need for a judicious and impartial adjudication of matters
arising from disputed procurement proceedings is what necessitated the formation of the Public
Procurement Complaints, Review and Appeals Board which was succeeded by the Public
Procurement Administrative Review Board.
History of the Public Procurement Administrative Review Board
Initially, the supplies manual of 1978 was the basis of government purchase. This was
supplemented by circulars from time to time by treasury.2 A review was launched in November
1998 which led to the following findings:
i.

There was no uniform process of public procurement.

ii.

There were no penalties or sanctions against those who flouted the law and misused funds
apart from threatened internal action.

1
2

iii.

The dispute settling mechanisms were very weak.

iv.

Records were not properly kept.

Public Procurement and Disposal Act,s(3) (1)

<www.ppoa.go.ke/index.php?option+=contentandview> (accessed 1 August 2013)

The review was conducted after the World Bank found out that a lot of the money it disbursed to
the country was misappropriated and not accounted for.3 This led to the promulgation of the
Exchequer and Audit (Public Procurement) Regulations of 2001, established under the
Exchequer and Audit Act,4 which created the Public Procurement Directorate and the Public
Procurement Complaints, Review and Appeal Board. The Directorate was in charge of
government procurement and had an oversight role. The Appeal Board was tasked with hearing
complaints from contractors who felt that the process of tendering was not transparent and to
hear complaints about any decisions which were deemed by aggrieved parties to have been
unfair. It would also entertain appeals from the private sector which had been presented to the
Directorate but were not acted upon.
However, concerns arose as to the ability of such a system to run a crucial facet of governance. It
was still under the Treasury and relied upon the Treasury for funding and staffing and this
exposed it to manipulation. This compromised the independence of public expenditure auditing
and procurement systems. Consequently, the Public Procurement Administrative Review Board
was established with the coming into force of the Public Procurement and Disposal Act in 20055
which also established the Public Procurement Oversight Authority, and the Public Procurement
and Advisory Board. The Oversight Authority and the Advisory Board are the equivalent of the
Directorate in the previous dispensation but with specific functions while the Administrative
Review Board is a continuation of what was the Complaints Review and Appeal Board under
the Exchequer and Audit (Public Procurement) Act 2001.
Composition and Membership of the Review Board
The Composition and membership of the Review Board is provided for in the Public
Procurement Regulations of 2006. Rule 67 provides that members of the review board shall be
appointed for term of three years and shall be eligible for reappointment for one further term of
three years. Rule 68 sets out the composition of the Board as follows:
(a) Six members appointed by the Minister from among persons nominated by
3

Country Procurement Assessment Review, 1997 (please get the full details of this source then cite according to
OSCOLA).
4
Cap 412 Laws of Kenya (now repealed).
5
Section 25 of the Act establishes the Public Procurement Administrative Review Board and specifically provides
that it shall be a continuation of the Public Procurement Complaints, Review and Appeal Board established under
the Exchequer and Audit Regulations 2001.

i.

The Kenya Association of Manufacturers.

ii.

The Law society of Kenya.

iii.

The Architectural Association of Kenya.

iv.

The Institution of Engineers of Kenya.

v.

The Institute of Certified Public Accountants of Kenya.

vi.

The Kenya Institute of Supplies Management.

vii.

The Institute of Certified Public Secretaries of Kenya.

viii.

The Chartered Institute of Arbitrators.

ix.

The Kenya National Chamber of Commerce and Industry.

x.

The Kenya Institute of Management.

xi.

The Computer Society of Kenya.

xii.

The Pharmaceutical Society of Kenya.

xiii.

The Federation of Kenya Employers.

xiv.

The Central Organization of Trade Unions.

(b) Three other members appointed by the Minister.

(c) A chairman appointed by the Minister from among persons appointed under paragraph
(a) above.
(d) A secretary to the review board appointed by the Minister.
Relevant Provisions of the Act Specifically Addressing the Public Procurement
Administrative Review Board
Section 93 of the Act provides that any candidate who claims to have suffered or risks suffering
loss or damage due to the breach of a duty imposed on a procuring entity by the Act may seek
administrative review in the manner provided for by the Act. In The Kenya Pipeline Company LT
v Hyosung Ebara co. ltd & 2 others,6 the judge, in referring to the Public Procurement
Administrative Board, stated as follows;
The Review Board is a specialized statutory tribunal established to deal with all
complaints of breach of duty by the procuring entity. By regulation 89, it has
power to engage an expert to assist in the proceedings in which it feels that it lacks
the necessary experience. Section 98 of the Act confers very wide powers on the
6

(2012) eKLR.

Review Board. It is clear from the nature of powers given to the Review Board
including annulling, anything done by the procurement entity and substituting its
decision for that of the procuring entity that the administrative review envisaged
by the Act is indeed an appeal. From its nature the Review Board is obviously
better equipped than the High Court to handle disputes relating to breach of duty
by procurement entity. It follows that its decision in matters within its jurisdiction
should not be lightly interfered with.
However, there are certain matters which shall not be subject to review. These include; the
choice of a procurement procedure; a decision by the procuring entity to reject all tenders,
proposals or quotations, where a contract is signed pursuant to section 68 of the Act7 and where
an appeal is frivolous.8 The Board may equally dismiss a request for review if it is of the opinion
that the request was made solely for the purpose of delaying the procurement proceedings or the
procurement.9
The right to request for a review under the Act is in addition to any other legal remedy that an
aggrieved person may have.10 This provision arguably permits an aggrieved party to seek legal
redress directly from the courts rather than going to the Review Board first. The parties to a
review shall include: the person who requested the review, the procuring entity, the person or
entity which was awarded the tender by the procuring entity and any other persons that the
review board may determine.11 The review board must complete its review within thirty days
after receiving the request for the review.12
Powers of the Review
These are provided in Section 98 of the Act and include the power to:
a) Annul anything the procuring entity has done in the procurement proceedings.
b) Give directions to the procuring entity with respect to anything to be done or redone in
the procurement proceedings.

Creation of a contract.
Public Procurement and Disposal Act, s93(2).
9
Ibid s95.
10
Ibid s99; 113 & 124.
11
Ibid s96.
12
Ibid s97(1).
8

c) Substitute the decision of the review board for any decision of the procurement entity in
the procurement proceedings.
d) Order the payment of costs as between the parties to the review.13
Consequently, if the board exercises powers outside those donated to it by the statute, it will have
acted ultra vires and any such exercise of power will be a ground for judicial review of its
decision by the High Court.
Section 105 of the Act grants the Director General of the Public Procurement Oversight
Authority certain powers where an investigation has established that there has been a breach of
the Act by a procuring entity. These include:
a) To direct the procuring entity to take such actions as are necessary to rectify the breach.
b) To cancel the procurement contract if any has been awarded.
c) To terminate the procurement proceedings.
d) To prepare and submit a summary of the investigators findings to the procuring entity
and to the Kenya Anti-Corruption Commission (now Ethics and Anti-Corruption
Commission).
The Act equally grants the Administrative Review Board powers to review any of the orders
made by the Director General pursuant to the provisions of Section 105.14 Such a review shall be
made within twenty one days of the Director Generals order. Section 107 grants the Review
Board powers to dismiss a request for such review where it is of the opinion that the request is
frivolous or vexatious. Where it admits a request for review, the review board must complete its
review within thirty days after admitting it.15 Upon completion, the review board may:
(a) Confirm, vary or overturn the Directors order or;
(b) Order the payment of costs as between parties to the review.

The Review Board also has powers to review the decision of the Director General to debar any
person from the procurement proceedings on any of the grounds stated in section 115.16

13

Ibid s98 .
Ibid s106.
15
Ibid s110.
16
Debarment on grounds of committing an offence under the PPOA, any other offence to do with procurement
under any Act, giving false information as to qualifications and failing to enter a written contract as provided for
in s 68.
14

Rule Making and Adjudication functions of the Review Board

The cardinal function of the board is to review decisions of public procuring entities in Kenya
and the decisions of the Director-General of the Public Procurement Oversight Authority. The
following section will highlight some of the cases that the board has adjudicated.
In Otieno Odongo & partners, as the applicant, and the Ministry of Water and Irrigation, as the
procuring entity,17 the applicant sought the orders of the Board to review a decision of the
Tender Committee of the Ministry of Water and Irrigation in the matter for Consulting Services
for the Engineering Design and Construction Supervision of Intake Wells for Garissa Water.
The applicants had submitted their bid for the services. They were ranked number four, with a
mark of 70% and, therefore, disqualified. The applicants lodged a request for review seeking
inter alia that the board annuls the decision of the Technical Evaluation Committee and give
directions to the Tender Committee to adopt the procedures and criteria set out in the RFP
documents and that there be a re-evaluation. They argued that the Tender Committee breached
sections 81 (2) (e), 82 (1) and 82 (2) of the Public Procurement and Disposal Act, 2005.
On the other hand, the procuring entity argued that it had not breached the aforesaid sections of
the Act, but admitted to having changed and adopted a new criterion for comprehensive
evaluation.
The board evaluated the decision of the procuring entity in line with the requirements set out in
the Act. It was the view of the Board that the procuring entity had altered the evaluation criteria,
and admitted as such, which was contrary to the express provisions of sections 81(1)(e), 82(1)
and 82(2) of the Act. The Board held that the procuring entity should have cancelled the bid at
the point it realized that it had omitted a major criteria in the RFP(explain what RFP means in a
footnote) document. The appeal by the applicant thus succeeded.
The case of Infozillion limited, as the applicant, and Communications Commission of Kenya, as
the procuring entity,18 dealt with a matter of Request for Proposals for the Installation,
Commissioning and Management of Service Provider Number Portability in Kenya. The
applicant was disqualified on the basis that it failed to comply with some of the tender
17
18

Application No.70/2007 of 17th December, 2007.

Review No. 9/2010 of the 16th February, 2010.

requirements, despite meeting most qualifications and scoring 80%, a mark attained by the other
two competing bidders. The applicant sought prayers from the board inter alia to annul the
award to the successful bidder and re-tender or award the tender to Inforzilion. They based their
complaint on breach of sections 81(2) (e), 82(1) of the Public Procurement and Disposal Act,
2005 and regulation 47.
In response, the procuring entity stated that it carried its preliminary evaluation as required by
Regulation 47 and complied with the provisions of the Act as per the mandatory evaluation
criteria found at Appendix C of the Tender Document. The procuring entity also contended that
the applicants were non-responsive and that it was in order to disqualify them for failure to
submit audited financial reports for the past three years.
However, the board held that it was irregular for the procuring entity to disqualify the applicants
from the onset instead of submitting them to further evaluation as the bidder did not proceed to
technical evaluation. Despite this fact, the board held that the failure by the applicant to supply
audited accounts for the previous three years contrary to express provisions of the law, provided
the board with sufficient grounds for disqualifying them at the preliminary evaluation. Therefore,
the applicants request for review was dismissed, and pursuant to section 98 of the Act, the
Board ordered the procurement process to proceed.
In Timber Treatment International Ltd, as the applicant, and Kenya Bureau of Standards, as the
procuring entity,19 the applicant raised three grounds for review with regards to breach of
Section 2 of the Act and award of tender to a bidder whose price was higher than the applicants
offer. The procuring entity denied breaching Section 2 of the Act stating that both bidders were
treated equally in the process, which was devoid of any discrimination.
In dismissing the review, the board held that there was no prejudice suffered by the applicant and
that indeed, having failed at the preliminary stage; the applicant could not claim that its bid was
lower than that of the successful bidder since its bid was not considered at the financial stage.
The case of Ogle Construction Company, as the applicant, and District Commissioner
Habaswen, as the procuring entity,20 dealt with a tender for proposed erection and completion of
19
20

Review No. 22/2012 of 22nd May, 2012.

Review No.17/2012 of 24th April, 2012.

lowland type District Headquarters at Habaswein. The applicants sought orders, inter alia, to
annul the award of the tender to the successful bidder and pay the applicants their outstanding
fees. They alleged that despite the existence of a contract between them and the respondents with
regards to the construction of the District Headquarters including a fence, which had already
been erected, the respondents went ahead and in blatant breach of the provisions of the Public
Procurement Act, 2005, awarded the construction of the fence to a third party. They argued that
Section 2 of the Act envisioned prudent use of public funds, while part 5 and part (vi) of the Act
sought to aver disregard of existing obligations of the public entity.
On the other hand, the public entity argued that it operated within the confines of the law, in
accordance with the Act and Regulation 59(1). It also claimed to have complied with the
requirements of the First Schedule.
The main facts in issue before the board were two. One was whether the board had jurisdiction
over the matter arising from the procurement and secondly whether the applicant had a locus
standi to request for review.
The board held that Section 9321 of the Act confers to the board jurisdiction to deal with the
procurement disputes. However, this section is subject to qualification from section 98(2)(c)
which states that a matter shall not be subject to the review under subsection (1) where a contract
is signed in accordance to section 68. Therefore, the board came to a conclusion that it did not
have jurisdiction to entertain the matter. This was because there were no disputes arising from
procedures as set out in section 68, which had been complied with. Moreover, statutory
limitations as set out in regulations 73 (2) (c) had long elapsed.
Furthermore, in determining the second issue the board held that the locus standi of a party to
lodge for a review of the procurement process was limited to candidates. This was in accordance
with the provisions of the Act, as stipulated in Section 3(1), as a person who has submitted a
tender to a procuring entity. Therefore, because the applicant had not submitted a tender to the
procuring entity, they did not qualify within the meaning of section 3(1) as a candidate. Indeed

21

Provides that, Subject to provisions of this part any candidate who claims to have suffered or to risk suffering, loss
or damage due to the breach of a duty imposed on a procuring entity by this Act or the regulations, may seek
administrative review as in such manner as may be prescribed.

pursuant to section 88 of the Act, the applicant was not even among those invited by the public
entity to submit tenders.
Despite these findings, the board made several observations with regards to the matter before it.
The public entity may have awarded two tenders with regards to the same subject matter in
contravention with Section 2, which formed the basis of the applicants claim. Thus despite
dismissing the claim for review by the applicants, the board went ahead to recommend that the
Director-General of the Public Procurement Oversight Authority conducts investigations on
these two tenders and ascertain the true position and take appropriate action.
In Banoda Oil Limited, applicant, and Ministry of State for Defence, procuring entity, the Board
annulled the tender given to the successful bidders who were Kenya Shell Limited. The
procuring entity was put at liberty to restart the procuring process.
In Hallow Enterprises, applicant, and Northern Water Service Board- Mandera North District,
procuring entity, the Board annulled the award of a tender to the successful bidder M/S Northern
Star Company Limited. It further directed subject to Section 98 (2) of the Act that the procuring
entity re-evaluate the bids and award the tender according to set out criteria within 30 days.
The Role of the High Court With Regard to the Public Procurement Administrative
Review Board
The High Court principally plays the role of judicial review with regard to decisions made by the
board. Where any party to the review proceedings before the board is dissatisfied with the
decision of the Board, they may appeal to the High Court for judicial review and any such orders
made by the High Court pursuant to the judicial review proceedings shall be final.22 There are
various provisions which give rise to the right for judicial review in the High Court. These
include Section 100(2) which provides that any party that is dissatisfied with the decision of the
review board in respect of any procurement proceedings may appeal to the High Court for
judicial review. Section 112 of the Act provides that any party to proceedings before the Review
Board concerning a review of the Director Generals decision made pursuant to section 105 of
the Act may appeal to the High Court for judicial review where he/she is not satisfied with the
review of the Director Generals decision by the Review Board. With regard to debarment
22

Ibid s100(2).

proceedings, Section 123 of the Act provides that any person who is not satisfied with regard to
the decision of the board on proceedings for a review of the Director Generals decision to debar
them from participating in the procurement process pursuant to the provisions of Section 115 of
the Act may appeal to the High Court for judicial review of such decisions.
When one moves to the High Court seeking judicial review of a decision made by the Review
Board, one will basically be seeking any one of the following three remedies. First would be an
order of certiorari to quash a past decision or action of the Board. Second would be an order of
prohibition which lies to refrain an inferior tribunal (the board) from doing what it is not
authorized to do. Third would be an order of mandamus which is a command issued by the High
Court to an administrative authority or inferior tribunal compelling it to perform a duty imposed
upon it by law. This section proceeds to highlight a number of judicial review cases in the High
Court involving the Public Procurement Administrative Review Board.
In Republic v Public Procurement Administrative Review Board Ex-Parte Parliamentary
Service Commission,23 the Parliamentary Service Commission moved the court seeking an order
of certiorari to quash part of the decision of the Public Procurement Administrative Review
Board directing the procuring entity to proceed and award the tender to the bidder whose bid was
declared to be the lowest. In declining to grant the orders sought, the court stated that it was not
satisfied that any of the grounds (i.e illegality and unreasonableness) raised by the applicant
existed. Consequently, the court upheld the decision of the Board.
In Republic v Public Procurement Administrative Review Board & Another Ex Parte
Cementers Limited,24 the applicant in an application for Judicial Review in the High Court
sought orders for prohibition, certiorari and mandamus. The applicant also sought a
determination of the legality of Section 100(1) of the Act which limits the time within which a
party may bring judicial review proceedings, in light of the fact that the Law Reform Act and
Order 53 of the Civil Procedure Rules gives the time limit for commencement of judicial review
proceedings as within six months from the time a decision is made. In upholding the decision of
the board, the court stated that the board took into consideration all relevant matters in arriving at
its decision thus the decision was not unreasonable. In declining to grant the orders sought, the
23
24

[2013]eKLR, Judicial Review 32 of 2013.

[2012]eKLR, Miscellaneous Civil Application 134 of 2011.

court further stated that the court in exercising its judicial review jurisdiction would not issue
orders merely on the fact that a tribunal has reached an incorrect decision. It further stated that
the only instance when the court would delve into the merits is in an instance where a decision is
so unreasonable that it would meet the threshold of Wednesbury Unreasonableness.25 As
regards the legality of Section 100(1) of the Act, the court held that the section does not attempt
to oust the jurisdiction of the High Court either in judicial review or as an appellate body and
thus was legal and constitutional. The court noted that the time limit provided in section 100(1)
of the Act was put in place to ensure that procurement proceedings are completed in a quick,
efficient and expeditious manner so that the objects of the Act are not defeated. In further
upholding the constitutionality of Section 100(1), the court noted that a delay in the finalization
of the procurement process should be avoided as it may result in grave and gross injustice to the
persons to the persons interested in goods and services offered by a public entity.
However, in the earlier case of Republic v Public Procurement Administrative Review Board
and Another Ex Parte Selex Sistemi Integrati,26 the High Court overturned the provision of
Section 100(4) of the Public Procurement and Disposal Act and stated that it was
unconstitutional and illegal as it offended the provisions on Section 77(9) of the repealed
constitution.27 The court stated that by providing that the courts must hear and determine a
judicial review case within thirty days, the legislature was making a deliberate encroachment to
the strictly operational independence of the judiciary which is an independent arm of
government. Therefore to that extent, section 100(4) was unconstitutional.
In Republic v Public Procurement Administrative Review Board & Another Ex-Parte Avante
International Technology Inc.,28 one of the questions before the court was whether public or
national interest was so nebulous that it ought not to be the basis for a determination in judicial
review. The applicant submitted that indeed public interest ought not to be given any regard in
the determination of judicial review. However, the court held that in appropriate circumstances,
courts of law and independent tribunals are properly entitled pursuant to Article 1 of the
25

This was set out in the case of Associated Provincial Picture Houses, Ltd v Wednesbury Corporation [1947] 2
ALL ER 680.
26
[2008] eKLR.
27
Section 79 of the Repealed Constitution provided that a reasonable time should be allowed for any judicial task or
function.
28
[2013] eKLR.

Constitution to take into account public or national interest in determining disputes before them
where there is a conflict between public interest and private interest by balancing the two and
deciding where the scales of justice tilt. The court stated that courts ought to appreciate the fact
that in view of the fact that the principle of proportionality was now part of Kenyan
jurisprudence, it is not unreasonable or irrational to take the said principle into account in
arriving at a judicial determination. Nevertheless, the court went on to further state that it would
not be warranted in determining whether or not in the circumstances of the case, the board was
justified in taking into account public interest. It stated that determination of such an issue
involves an interrogation of the merits of the decision of the board, something which was not
under the purview of judicial review application. Such a determination fell squarely in an
appellate court.
In Republic v Public Procurement Administrative Board ex parte Kenya Medical Supply
Agency and Three others,29 the High Court granted an application for an order of certiorari by
the Kenya Medical Supplies Agency, Crown Agents and Deutsche Gesellschaft Fur Technishe
Zusammenarbeit (Herein called the consortium) compelling the consortium to admit the bid
documents by the complainant, Hetero Drug Ltd, and to carry out a fresh re-evaluation of the
entire procurement process. In granting the orders, the court stated that Public Procurement
Administrative Review Board had no jurisdiction to waive the obvious mandatory statutory
requirements or even to handle to the review in the negative manner that it did; that it exceeded
its jurisdiction and overstepped its mandate by dealing with issues which had not been pleaded
before it and in doing so reached a wrong decision. The court further held that to find otherwise
would be tantamount to negating the whole essence of the Public Procurement and Disposal Act
and to encourage actions which would best be described as ultra vires, and in any event be null
and void.
The above cases are illustrative of the increasingly important role that the High Court plays in
providing redress for parties involved in the procuring process who are dissatisfied with the
decisions arrived at by the Public Procurement Administrative Review Board.

29

[2010]eKLR.

Challenges
The procurement process is not only an essential part of the bureaucracy in the public and
private sector, but also a cardinal one that cannot be avoided for an effective and efficient
industry. It is, therefore, vital that sufficient interrogation is done to the process to effect a
transparent, accountable, target oriented and cost-effective bureaucracy. We appreciate that
despite the number of efforts by the government to streamline the process; a lot needs to be done
to achieve the primal objective of ensuring a fair and competitive process.
The promulgation of the 2010 Constitution is a significant step towards aligning the
procurement process to meet the principle of good financial governance. Furthermore, it is vital
that it meets the principles of good governance envisioned in Article 10 (c), which include
integrity, transparency and accountability. In particular, Article 227 the Constitution deals with
procurement of public goods and services and stipulates as follows:
1. When a State organ or any other public entity contracts for goods or services, it shall do
so in accordance with a system that is fair, equitable, transparent, competitive and costeffective.
2. An Act of Parliament shall prescribe a framework within which policies relating to
procurement and asset disposal shall be implemented and may provide for all or any of
the following
a) Categories of preference in the allocation of contracts;
b) The protection or advancement of persons, categories of persons or
groups previously disadvantaged by unfair competition or
discrimination;
c) Sanctions against contractors that have not performed according to
professionally regulated procedures, contractual agreements or
legislation; and
d) Sanctions against persons who have defaulted on their tax
obligations, or have been guilty of corrupt practices or serious
violations of fair employment laws and practices.
Therefore, the most daunting task facing PPOA is aligning the procurement process to meet the
high standards of objectivity set out by the Constitution. While the Constitution requires that all
procurement processes comply with the provisions of Article 227 within a period of four years

after the effective date, good public administration practices and common sense demands that all
stake holders begin consultation as soon as possible. The restructuring of the Public Procurement
and Disposal Act to align it with the relevant provisions of the Constitution should take
precedence.

In this light, the Public Procurement Oversight Authority has already conducted a study
to determine the impact of the promulgation of the 2010 Constitution in public procurement
process and related matters.30 The study, which was carried out in November 2010, developed a
comprehensive compendium of the proposed amendments to the Public Procurement and
Disposal Act 2005. Furthermore, the Public Procurement Oversight Authority has come up with
a strategic plan which runs for the period of 2010-2014, to assist it in its role in the development,
implementation and regulation of the public procurement system so as to ensure that the
government gets value for money, loss of public funds on procurement is minimized, there is
optimized resource allocation for the various prioritized government projects and that procured
goods, works and services are delivered on time.

All these plans are done with the objects and principles of devolution in consideration.
To materialize them, the government, through PPOA, plans to set up branches in six different
regions of the country for example, in order to fulfill its oversight function in a sufficient manner
in all parts of the country.

However, the procurement process in Kenya still faces a number of hurdles. Procurement
planning is not carried out systematically most procurements are undertaken on an ad hoc basis,
by quotations and direct procurements. Another hurdle is the low stakeholder awareness of webbased procurement information system. There is limited access to public procurement complaints
review board decisions. There is no code of ethics addressing procurement related issues. While
the Public Officers Ethics Act provides a general code of ethics for public officials, this code
does not include specific provisions for those officials involved in public financial management,
including procurement. Instead, the Public Procurement and Disposal Act mandates the Public

30

J Ochieng and M Muehle, Development and Reform of the Kenyan Public Procurement System

Procurement Oversight Authority to issue develop a Code of Ethics for procurement officials.
Such a Code is yet to be developed.

Corruption within the review board has also been a major challenge in the procurement
process.31 The law has not been able to eradicate corruption and other related challenges as
anticipated.32 Some members of the review board are appointed by the Cabinet Secretary in
charge of Finance thereby arguably affecting the independence of the board.

The most crucial challenge that will face the new government under the devolved system is
aligning and implementing a successful, sound, transparent, fair equal, competitive, effective and
economic public procurement system on the level of county governments. It is essential that we
ensure capacity building both in the private and public sector.

It is hoped that in the wake of the new dispensation, the authorities will be committed to
reform and improvement of the public procurement system. The reforms should embrace the
following essential concepts and values:
1. Accountability to establish clear lines of responsibility in decision-making structures
2. Responsiveness to citizens of the country
3. Professionalism to improve individual and systems performance
4. Transparency to ensure that procedures and policies are understood and accepted by
procuring entities
5. Competition to attract high quality national and international partners investing in
meeting government needs through contracts
6. Appeal rights to redress meritorious grievances of suppliers

31
32

H Kimani, The Influence of Political Patronage on the operationalization of public procurement law in Kenya.
Ibid.