The Public Procurement And Asset Disposal (Amendment) Bill, 2022

SPECIALISSUE

Kenya GazetteSupplementNo.202(National Assembly Bills No.62)

KENYA GAZETTESUPPLEMENT

NATIONALASSEMBLYBILLS,2022

NAIROBI,16thDecember,2022

CONTENT

Bill for Introduction into theNational Assembly-

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MEMORANDUMOFOBJECTSANDREASONS

Theprincipal object of this Bill is to amend thePublicProcurement and Asset Disposal Act,2015 toenhance the amount for tenders where Kenya citizens are given exclusive preference from the sum of five hundred million shillings to twenty billion shillings.This is toprotect the Kenyan tradersfrom foreign competitors.

Clauselof theBillprovidesfor the short title.

Clause 2of theBill increases the amount forexclusivepreference of tendersforKenyansfrom fivehundred million shillings to twenty billion shillings.

Statement on the delegation of legislative powers and limitation of fundamental rightsand freedoms

The Bill does not limit any fundamental rights and freedomsas provided under the Constitution.

Statement that the Bill concerns county governments

The Bill affects the functions of the county governments and is

therefore a Bill concerningcountiesforpurposes of theStandingOrders.

Statement that the Bill is a money Bill within the meaning ofArticle

114ofthe Constitution

The enactment of this Bill shall not occasion additional expenditure ofpublicfunds.

Dated the9thDecember,2022

MEJJADONKBENJAMINGATHIRU,

MemberofParliament.

Section157oftheActwhichitisproposed toamend-

Participation of candidates in preference and reservations

• (1) Candidates shall participate in procurement proceedings without discrimination except where participation is limited in accordance with thisAct and theregulations.

2. (2)Subject tosubsection (8),the Cabinet Secretary shall,in consideration of economic and social development factors,prescribe preferencesand orreservations in publicprocurement and asset disposal. 3. (3)The preferences and reservations referred to in subsection (2) shall- 4. (a)be non-discriminatory inrespect of the targeted groups; 5. (b)allow competition amongst the eligible persons;and 6. (c)bemonitored and evaluated bytheAuthority. 7. (4)For the purpose ofprotecting and ensuring the advancement of persons,categories of persons or groups previously disadvantaged by unfair competition or discrimination,reservations,preferences and shall applyto- 8. (a)candidates such as disadvantaged groups; 9. (b)micro,small and medium enterprises; 10. (c)works,services and goods,or any combination thereof; 11. (d)identified regions;and 12. (e)such other categories as may beprescribed 13. (5)An accounting officer ofaprocuring entity shall,when processingprocurement,reserveaprescribedpercentage ofits procurement budget,which shall not be less than thirty per cent,to the disadvantaged group and comply with the provisionsof thisAct and the regulations inrespect ofpreferences and reservations. 14. (6)To qualify for a specific preference or reservation,a candidate shall provide evidence ofeligibility asprescribed. 15. (7)TheAuthority shall maintain an up-to-date register of contractors in works,goods and services,or any combination thereof,in order to be 16. cognizant at all times of theworkload and performancerecord. 17. (8)In applying the preferencesandreservations under this section- 18. (a)exclusivepreferencesshall be given tocitizens ofKenya where

• (i)the funding is100% from the national government or county governmentoraKenyanbody;and
• (ii) the amounts are below theprescribed threshold;
• (iii) theprescribed threshold for exclusive preference shall be above five hundred million shillings:
• (b)aprescribed margin ofpreference shall begiven-
• (i)in the evaluation of tenders to candidates offering goods manufactured,assembled,mined,extracted or grown in Kenya;or
• (i) works,goods and services where a preference may be applied dependingon thepercentageof shareholdingof the locals on a graduating scale asprescribed.
• (9)For the purpose of ensuring sustainable promotion oflocal industry,aprocuring entity shall have in its tender documents a mandatory requirement as preliminary evaluation criteria for all foreign tenderers participating in international tenders to source at least forty percent of theirsuppliesfromcitizen contractorspriorto submittinga tender.
• (10)Despite subsection(2) or any other provisions of this Act,every procuring entity shall ensure that at least thirty percent ofitsprocurement value in everyfinancial yearis allocated to theyouth,womenandpersons with disability.
• (11)Every procuring entity shall ensure that all money paid out to an enterpriseowned byyouth,women orpersonswith disability ispaid into with disability.
• (12)The procuring entities at the national and county level shall make areport after every sixmonths to theAuthority.
• (13)Areport under subsection(12)shall-
• (a)certify compliance with theprovisions of this section;and
• (b)provide data disaggregated to indicate the number of youth women and persons with disability whose goods and services have been procured by theprocuringentity.
• (14)TheAuthority shall make a report to Parliament after every six months for consideration by the relevant committee responsible for equalization of opportunities for youth,women and persons with disability,which report shall contain details of the procuring entities and how they have compliedwith theprovisions of this section.

• (15) The Cabinet Secretary shall prescribe the preferences that shall acilitate the attainment of thequota specified in subsection(lo) in order or the State to achieve theobjectives of Articles 55and 227(2)of the

2. Constitution. 3. (16)The preferencesreferred to in subsection(15) shall- 4. (a)be prescribed within ninety days after commencement of this Act; 5. (b) be subject to such conditions as the Cabinet Secretary may unnecessary impediment to the youth from participating in publicprocurement.

• (17) The National Treasury shall operationalize a preference and eservations secretariat to be responsible for the implementation of the oreferences and reservations under this Act which shall be responsible or-

7. (a)registration,prequalification and certification of the persons, categories ofpersons or groups as provided for in underPart "IIX 8. (b) 9. training and capacitybuildingof the above targetgroups; 10. C providing technical and advisory assistance toprocuringentities in theimplementation ofthepreferences andreservations under 11. thisAct;and 12. (P) monitoringand evaluating theimplementationof thepreferences andreservations under this Act. 13. (18)The National Treasury shall provide adequate staff and esourcesforthe operations of thesecretariat.