The object and purpose of these Regulations is to operationalize the Public Procurement and Asset Disposal Act, 2015 on the coordination of procurement and disposal procedures by procuring entities.

Where any bilateral or multilateral agreements are financed through negotiated loans for the procurement of goods, works or services, the Act shall not apply where the agreement specifies the procurement and asset disposal procedures to be followed.

All bilateral and multilateral agreements whose implementation is through procurement in part or in whole shall involve procurement professionals from the respective procuring entity at the initial stages of project preparation and negotiations for the purposes of ensuring that the public procurement and asset disposal interests of Kenya are considered.

For greater certainty, where the requirements of paragraph (3) cannot be met, an accounting officer shall cause a report to be prepared detailing evidence of the inability to meet this provision and measures to be undertaken to ensure compliance with this regulation, and submit the report to the National Treasury to grant a waiver of the requirement.

The National Treasury shall be responsible for training and capacity building for procurement and supply chain management services at the national government level.

Despite the provisions of paragraph (1), the National Treasury shall assist county governments in training and capacity building for procurement and supply chain management pursuant to section 14 of the Public Finance Management Act, 2012.

The National Treasury shall publish a list of common user items for utilization and management at least once a year, in accordance with the provisions of section 7(2)(h) of the Act.

Subject to section 27(2) of the Act, the Review Board shall ensure reasonable accessibility of its services in all parts of the Republic by establishing review panels consisting of at least five members, three of whom shall form a quorum.

The panels referred to in paragraph (1), may be established by the Review Board to carry out its functions at national and county levels as provided for in the Act;

For greater certainty, the decisions of a panel shall be treated as the decisions of the Review Board.

Pursuant to section 29(1)(b) of the Act, the qualification and experience of the Review Board members shall be as provided in section 30 of the Act.

When nominating persons for appointment to the Review Board as provided for under section 29(2) of the Act, each organization referred to in that section shall submit to the Cabinet Secretary the curriculum vitae of three members being nominated for each slot, of whom one shall be of opposite gender and shall reflect regional balance.

The Review Board shall conduct a full Review Board meeting at least once every quarter of each financial year.

The quorum of a full Review Board meeting as envisaged in the Act shall be nine members including the Chairperson or the Vice-Chairperson.

The Cabinet Secretary shall not terminate the service of a Chairperson or member unless he or she has given such person an opportunity for a fair hearing.

Pursuant to section 28(3) of the Act, there shall be a secretary of the Review Board who shall be at the level of a head of department of the Authority appointed in writing by the Director-General with the approval of the Review Board.

The Review Board shall prepare and submit estimates of revenue and expenditure for the following financial year not later than the 30th December each year to the Authority for review and approval with a copy to the Cabinet Secretary.

For each financial year, the Review Board Secretary shall cause one annual report of its performance to be prepared.

The Review Board shall submit an annual report to the Cabinet Secretary, within three months after the end of the year to which the report relates.

The Review Board Secretary shall with the approval of the Director-General hold the authority to incur expenditure on behalf of the Review Board.

Powers of an investigator shall include conducting interviews with persons involved in the subject procurement and asset disposal.

The investigator shall not in the course of the investigation advise a procuring entity on any matter relating to the procurement or asset disposal proceedings.

Where the request for debarment is initiated through the recommendation of a law enforcement agency with an investigative mandate, or by an investigator duly appointed by the Authority on its own motion, the Board shall notify the person of the intended debarment and provide details of the findings of the investigator or law enforcement agency.

The request for debarment shall be made in the format provided in the First Schedule.

The Board shall constitute a debarment committee to hear and determine debarment requests that have been submitted to the Authority.

A decision to debar a person shall not relieve the debarred person of the obligations under any contract entered into with a procuring entity before the debarment.

Debarment of a person shall also apply to the successor in interest of the debarred person and where the debarred person is a company or partnership, the debarment shall apply to the directors and partners of that company or partnership.

Where a person is debarred from participating in procurement proceedings under section 41 of the Act, the debarment shall extend to any legal entity in which the debarred person has a controlling interest.

Where a procuring entity or a county treasury is unable to satisfy the requirements under paragraph (1), the procuring entity or the county treasury may seek assistance from the National Treasury, or its respective county treasury in case of a county procuring entity.

Pursuant to section 46 of the Act, an ad hoc evaluation committee shall be established for each procurement within the threshold specified in the matrix under the Second Schedule except for low value procurements.

The accounting officer of a procuring entity shall appoint an evaluation committee for the purposes of carrying out the technical and financial evaluation of the tenders or proposals.

The accounting officer shall designate one of the members of the evaluation committee as the chairperson.

The quorum for the conduct of business of the evaluation committee shall be at least three persons including the chairperson.

The person in charge of the procurement function shall be the secretary of the ad hoc evaluation committee.

Each member of the evaluation committee shall evaluate independently from the other members prior to sharing his or her analysis questions and evaluation including his or her rating with the other members of the technical evaluation committee.

The individual score sheets shall be kept as records of a procurement proceeding.

Upon sharing of individual evaluators ratings, the committee shall moderate the analysis to arrive at an average rating.

Where technical and financial bids are submitted in separate envelopes, a technical report shall be prepared and submitted to the head of procurement for review and invitation of bidders for the opening of financial proposals.

A procuring entity shall establish a procurement function in accordance with section 47 of the Act.

The procurement function shall be handled by the procurement professionals whose qualification and experience are recognized in Kenya.

Where the procuring entity lacks internal technical expertise to carry out the inspection and acceptance, the accounting officer shall request another procuring entity to nominate an officer with the relevant technical expertise to assist or procure a professional with the relevant technical expertise and that person shall be appointed by the accounting officer in writing to form part of the inspection and acceptance committee.

The technical person referred to in paragraph (3) shall issue a certificate to the accounting officer confirming the right quality and quantity of goods, works or services.

The inspection and acceptance committee shall take into account all the necessary certificates prior to issuing a certificate of acceptance.

Pursuant to section 48(4) of the Act, the inspection and acceptance committee shall prepare and issue a report, interim or completion of inspection and acceptance certificate and submit to the head of procurement function.

Where a sector-specific procuring and disposal agency is established under section 49 of the Act, a procuring entity or entities may engage the services of that agency for purposes of procurement and distribution of goods, works and services.

A public entity with no procurement capacity in a specific-sector, may engage the services of its respective sector-specific agency established in paragraph (1) to procure the specific sector goods, works or services.

The sector-specific agencies shall be headed by a chief executive officer with experience in finance or supply chain management or accounting.

The sector-specific agencies shall have a procurement department staffed with procurement professionals and any other appropriate staff.

Subject to the provisions of the Act and these Regulations, the sector-specific agency shall report at least quarterly to the Authority and the Cabinet Secretary or respective county executive committee members responsible for the subject sector in a format provided for by the Authority.

The Authority shall register and license procuring or asset disposal agents appointed under section 51 of the Act upon payment of registration fee of fifty thousand shillings.

The fee paid under paragraph (1), shall be payable only once at the time of initial registration.

Where the procuring agent is engaged by a procuring entity the accounting officer shall approve the contract award.

The license issued under this regulation shall be renewed annually at a nominal fee of five thousand shillings.

Where the registered procuring agent is a partnership, proprietorship or company it shall employ or have a procurement professional.

A procuring entity shall not contract out both the procurement functions and its contract management functions to the same procuring agent.

None of the functions of the accounting officer shall be contracted out to a procuring agent.

The accounting officer or the head of the procuring entity who requests the Authority to transfer its function shall remain accountable for all decisions taken by the procuring entity to which the function is transferred.

The agreement for transferring the procuring responsibility under paragraph (3) shall be in writing and signed by the accounting officers of the two procuring entities and a copy of the agreement submitted to the Authority.

A procuring entity shall prepare a procurement plan for each financial year as part of the annual budget preparation process.

Where applicable, multi-year procurement plans may be prepared which shall be integrated into the medium term budgetary expenditure framework.

A head of user department shall submit an annual departmental procurement plan to the accounting officer prior to the commencement of the financial year and shall be implemented in accordance with the timelines set out therein.

The consolidated annual procurement plan shall be prepared by the accounting officer of the procuring entity and approved by the Cabinet Secretary, or county executive committee member of finance or responsible for that entity or, where applicable, by the board of directors or a similar body.

A procuring entity of a county government shall indicate in its procurement plan a minimum twenty percent (20%) budgetary allocation for preferences and reservations for resident tenderers of the county, pursuant to section 33(2)(g) of the Act.

An accounting officer of a procuring entity shall prepare a quarterly report on the implementation of the annual procurement plan and submit it to the Cabinet Secretary or county executive committee member for finance or responsible for the procuring entity or the governing body, as the case may be.

A procuring entity shall not split or structure its contracts for the purpose of avoiding the use of a procurement procedure as provided for under section 54(1) of the Act except where unbundling of categories is allowed under preference and reservation schemes in the Act and regulation 154.

In discharging its mandate under section 54(3) of the Act, the Authority shall determine standard goods, works and services with known market prices and prepare a quarterly market price index as a reference guide.

The National Treasury may support the Authority execute its function in developing the market price index, obtaining value for money for procuring entities and obtaining synergy.

The suppliers register shall be updated at least every six months as a requirement under section 57(2) of the Act and in accordance with section 71 of the Act.

When updating the list, a procuring entity shall notify the new vendors of their admission into the list.

A procuring entity shall evaluate the list after every two years leading to a fresh registration of suppliers.

A candidate or tenderer shall not issue a tender security to guarantee itself.

Prior to the cancellation or termination of a procurement and asset disposal proceedings under section 63 of the Act, an accounting officer may take into account the recommendations of the head of procurement function.

The report required under section 63(2) and (3) of the Act shall be made in accordance with the guidelines issued by the Authority.

The conduct of e-procurement procedures for the supply of goods, works and services shall be carried out by a procuring entity using an e-procurement system which is integrated to the State Portal.

Where a procuring entity intends to use an e-procurement system, that procuring entity shall prepare its annual procurement plan through the system and upload it in the State Portal.

Subject to paragraph (1), a procuring entity shall configure the approval process for annual procurement plans into the e-procurement system to allow for the preparing and publishing of departments or consolidated procurement plans.

The candidates who are desirous of participating in e-procurement shall submit their bids in the standard formats issued by the Authority.

The tenderers shall upload copies of all the relevant certificates and documents on the e-procurement system in support of their bids.

The tenderers shall sign all statements, documents and certificates uploaded to take responsibility for their correctness and authenticity.

Tenderers shall be allowed to submit modifications to bids or proposals or withdraw previously submitted bids or proposals electronically up to, but not after, the bid submission deadline.

Receipt of modification or notice of withdrawal including the date and time shall be acknowledged electronically.

A bid or proposal submitted online shall be scanned for malware by the system administrator before being uploaded and accepted into the online bid box.

Where a scan causes a bid to be rejected, the tenderers shall be notified immediately.

A procuring entity shall accept only those bids in electronic format received within the tender submission deadline.

Receipt of electronic submissions, including the date and time, shall be acknowledged electronically.

Proof of tender security as required by the procuring entity, where applicable, shall be scanned and uploaded along with the bid, and the original physical copy shall be submitted to the procuring entity so as to reach before the date of closing of the bids.

Failure to submit the original physical copy of a tender security before the closing of the bid shall lead to the disqualification of the bid.

A procuring entity shall not charge any fee for tender documents obtained electronically by candidates.

In order to submit the bids electronically, candidates shall be required to secure a digital signature certificate from a certifying agency licensed by the Communications Authority of Kenya.

The bids or proposals submitted online shall be signed electronically with a digital signature to establish the identity of the bidder submitting the bid or proposal online.

Where a candidate or tenderer makes an inquiry relating to the amended tender documents under section 75(2) of the Act, the procuring entity shall promptly respond in writing in both manual and through electronic mail where possible, and such correspondence shall be sent through the official communication address of the procuring entity.

Where the response under paragraph (1) affects the requirements of the tender, the response shall be copied to all candidates and shall include a description of the inquiry but without identifying the source.

A procuring entity shall not be bound to respond to inquiries received after the deadline for submitting inquiries stipulated in the tender document.

Where submission of tenders are done online, such submissions shall be received into an electronic tender box and maintained to high standards of security and the e-tender box shall remain closed until the time of tender opening.

The electronic tender box referred to under paragraph (1) shall have three passwords that are simultaneously time-activated and each password shall be issued to different officers who are members of the tender opening committee.

Without limiting the generality of the foregoing, the tenderer submitting a bid or proposal may encrypt their bid as long as their respective passwords are availed at the tender opening.

A tenderer who submits an encrypted tender and fails to provide their respective password or other means of access to the document at the tender opening shall be deemed not to have submitted their bid.

A record of the bid opening shall be kept in print copy and signed by the tender opening committee appointed in accordance with section 78(1) of the Act.

A procuring entity shall ensure that the date and time of an automated closure of an electronic bid deadline is indicated in the invitation notice or tender document in accordance with the local time zones.

All tenders shall be opened in the presence of all invited bidders who choose to attend and sign a record of attendance.

Despite paragraph (7), a procuring entity may allow for online viewing of tender opening proceedings by tenderers.

All e-tenders shall be readable through open standard interfaces and formats as specified in the tender documents.

Information read at the bid opening shall include where applicable and practicable, the name of the tenderer, the absolute and final price, offered discount, tender security and any other pertinent information that may be deemed necessary.

The procuring entity shall on request provide a copy of the tender opening register to a tenderer.

Bids or proposals in electronic format shall be protected against access by unauthorized persons until the publication of the contract award.

A procuring entity shall open bids or proposals in electronic format.

A procuring entity shall ensure that financial proposals in electronic format shall only be accessed and opened after the technical evaluation of the proposals where so required in the e-tender documents.

Until the price bids are opened, the bid-offers shall be kept confidential.

Financial bids for unsuccessful bidders at the technical stage shall not be opened.

An accounting officer of a procuring entity shall, upon appointment of any ad hoc evaluation committee, register its members and give them access to the e-procurement system.

An evaluation committee shall access the system only in specified and restricted time for specific procurement defined by a procuring entity for submitting the evaluation results and reports.

The tender evaluation committee shall evaluate the tenders using the evaluation criteria contained in the e-tender document.

The clarifications, particulars, if any, required from the tenderers to assist in evaluation pursuant to section 81 of the Act, shall be obtained electronically.

The tender evaluation report shall be submitted and accessed electronically by the head of the procurement function for professional opinion.

A procuring entity shall use pre-approved automated evaluation process so long as the evaluation aligns with the criteria established in the bidding documents is consistent with the principles of economy, effectiveness, efficiency, equal opportunity, and transparency.

A digital signature certificate required by a procuring entity shall be obtained from a certifying agency licensed by the Communications Authority of Kenya for accounting officer, head of procurement function, tender opening and evaluation committee, as the case may be.

When an officer with a digital signature ceases to work for the procuring entity, the digital signature shall be surrendered to the issuing authority immediately.

A bid for a particular tender can be submitted during the online bid submission stage only using the digital certificate that is used to encrypt the data.

In the event of a loss of the digital signature certificate by an officer of a procuring entity, for any reason whatsoever including a misplacement, hardware or software malfunctions, operating systems problems and malware, the officer shall immediately report such loss to the accounting officer and the certifying agency simultaneously.

A procuring entity shall notify all bidders participating in the e-tendering process of the outcome of the award electronically and simultaneously.

The system approved in section 64 of the Act shall be interactive and have the capability to enable bidders participating in a procurement procedure to be notified and accept tender awards electronically.

The e-procurement system shall recognize the management of administrative review of all tendering disputes lodged before the Review Board and suspend all affected procurement proceedings until the request for review is heard and determined.

Candidates and tenderers shall lodge appeals and receive responses electronically.

The records for procurement submitted as a summary of the proceedings of opening of tenders, evaluation and comparison of tenders, proposals or quotations including evaluation criteria envisaged in section 68 of the Act, shall be in the form specified in the Seventh Schedule.

Standard tender documents envisaged under sections 9(1)(f) and 70(1) of the Act, shall be developed by the Authority for use by all procuring entities as set out in the Eighth Schedule.

The Authority shall issue and publicize the format of procurement documents to be used and issue standard forms by which a procuring entity shall carry out specific procurement procedures.

The documents used by a procuring entity shall be clear and bear references to the procurement requirement, provision for dates and signatures of authorizing officers.

Pursuant to section 70(4) of the Act, the accounting officer of a procuring entity shall prepare the tender document clearly indicating the technical and financial evaluation criteria to be applied which shall be quantifiable, measurable and objective in line with the provisions of section 80(3) of the Act in consultation with the user department and other relevant departments.

The Authority may, from time to time, issue circulars and guidelines only on the content of procurement and disposal documentation.

A procuring entity may, under section 70(5) of the Act, charge a fee not exceeding one thousand shillings for hard copies of a tender document or as may be set by the Cabinet Secretary from time to time.

In determining the fee payable under paragraph (6) above, a procuring entity shall only have regard to the costs related to printing, copying, and distributing.

Where a procuring entity charges a fee for a tender document, the procuring entity shall permit potential tenderers to inspect the document, prior to paying the fee for the document.

A procuring entity may generate a list of suppliers under section 71 of the Act by way of invitation of registration of suppliers.

The registration of suppliers by a procuring entity shall be in accordance with regulation 44.

Where a procuring entity conducts a registration procedure pursuant to the Act, it shall publish an invitation to candidates to submit applications to be registered.

For greater certainty, the notice for registration of suppliers shall not apply to the youth, women and persons with disabilities registered by the National Treasury.

A procuring entity shall promptly issue registration documents to all candidates who request them and shall maintain a record of all candidates to whom documents are issued.

The registration document shall contain all information necessary for the potential candidates to prepare and submit applications to be registered.

The procuring entity shall allow the candidates at least fourteen days to prepare and submit their applications to be registered.

The procuring entity shall promptly respond to all requests for any clarification relating to the registration document where such requests are received before the deadline for submission.

The procuring entity shall, in writing, record the results of its evaluation of applications for registration using the evaluation criteria stipulated in the registration documents.

Pursuant to section 73 of the Act, the head of the user department shall initiate the procurement process through a requisition as per the approved procurement plan.

When estimating the value of the goods, works or services, the accounting officer shall ensure that the estimate is realistic and based on up-to-date information on economic and market conditions.

For avoidance of doubt, the total price shall take into account any discount referred to in section 78(6)(b) of the Act.

Subject to section 79(2)(b) of the Act, any errors in the submitted tender arising from a miscalculation of unit price, quantity, subtotal and total bid price shall be considered as a major deviation that affects the substance of the tender and shall lead to disqualification of the tender as non-responsive.

A procuring entity shall reject all tenders, which are not in conformity to the requirements of section 79 of the Act and regulation 74 of these Regulations.

The classification of a deviation from the requirements as minor under section 79(2)(a) of the Act shall be applied uniformly and consistently to all tenders received by a procuring entity.

Upon completion of the preliminary evaluation under regulation 74, the evaluation committee shall conduct a technical evaluation by comparing each tender to the technical requirements of the goods, works or services in the tender document.

The evaluation committee shall reject tenders which do not satisfy the technical requirements under paragraph (1).

Upon completion of the technical evaluation under regulation 76 of these Regulations, the evaluation committee shall conduct a financial evaluation and comparison to determine the evaluated price of each tender.

Tenders shall be ranked according to their evaluated price and the successful tender shall be in accordance with the provisions of section 86 of the Act.

The evaluation report under paragraph (1), shall be reviewed by the head of the procurement function and forwarded to the accounting officer together with the professional opinion referred to in section 84 of the Act within a day upon receipt of the evaluation report.

The head of the procurement function may seek for clarification from the evaluation committee before making a professional opinion.

Where the accounting officer rejects the recommendations under paragraph (1)(c), the accounting officer shall give reasons and provide further directions to the head of the procurement function, in writing.

Pursuant to section 68(2)(g) of the Act, any further directions, approval or rejection by the accounting officer shall form part of the procurement records.

Pursuant to section 83 of the Act, a procuring entity may, prior to the award of the tender, confirm the qualifications of the tenderer who submitted the bid recommended by the evaluation committee, in order to determine whether the tenderer is qualified to be awarded the contract in accordance with sections 55 and 86 of the Act.

The professional fees and rates chargeable under section 80(2) of the Act shall be guided by the rates approved by the respective professional bodies.

For non-regulated professional services, the fee shall be based on time, scope and quality of services to be rendered.

The notification to the unsuccessful bidder under section 87(3) of the Act, shall be in writing and shall be made at the same time the successful bidder is notified.

For greater certainty, the reason to be disclosed to the unsuccessful bidder shall only relate to their respective bids.

The notification in this regulation shall include the name of the successful bidder, the tender price and the reason why the bid was successful in accordance with section 86(1) of the Act.

The format of the list referred to in paragraph (1) shall be in the form prescribed under the Tenth Schedule of these Regulations.

The list submitted under paragraph (1) shall be accompanied by a report detailing the selection criteria for suppliers.

National security organs and other procuring entities that deal with the procurement of classified items shall agree with the Cabinet Secretary on the category of classified items and the method of procurement or disposal to be applied by that procuring entity.

Pursuant to section 90(6) of the Act, the Cabinet Secretary shall submit the classified list of each national security organ and other procuring entities that deal with the procurement of classified items to the Cabinet for approval every financial year.

Any national security organ or procuring entity that deals with classified items which fails to submit its list shall be deemed to be conducting all its procurements and disposal on the basis of open list and shall be subject to the procurement and disposal procedures under the Act and these Regulations.

An accounting officer of a national security organ or procuring entity that deals with classified items shall appoint special committee to handle the procurement and disposal of its classified items.

In establishing the special committee in paragraph (7), the accounting officer shall submit the names of the nominated members of the special committee to the respective Cabinet Secretary, county executive committee member or governing body of that procuring entity for approval.

The head of the procurement function shall be the secretary to the special committee.

The accounting officer of the national security organ or procuring entity that deals with classified items shall submit quarterly reports on the procurement and disposal activities of that procuring entity to the Cabinet Secretary and the Authority.

Where a procurement or disposal need arises which was not included in the approved list, the accounting officer of the national security organ or procuring entity that deals with classified items shall submit a supplementary classified list to the Cabinet Secretary.

All classified procurements shall be monitored by the Authority in accordance with section 9(1)(d) of the Act.

In monitoring the classified procurement information pursuant to paragraph (13), the Director-General shall liaise with the Cabinet Secretary to access the list of the classified procurement.

The threshold for national advertising envisaged under section 96(2) and (5) of the Act shall be as specified in the matrix in the Second Schedule to these Regulations.

Without limiting the generality of section 96(3)(a) of the Act in respect of tender advertisement, a procuring entity shall advertise tenders in the State portal.

The procedure for open tender method shall be in accordance with sections 96, 97 and 98 of the Act.