According to the Business Daily on 1^st March 2022, (see https://www.businessdailyafrica.com/bd/economy/state-to-reveal-names-homes-of-tender-tycoons-3732712) the State has published new regulations compelling all Procuring Entities to make public the details of the persons who win big tenders from the Government and its agencies.

While this is a laudable move, please remember that this is not a novel requirement since Section 138 of the Public Procurement and Asset Disposal Act, 2015 (the Act) provides for publication of procurement contracts. Section 138 of the Act provides:

Publication of procurement contracts

(1) The accounting officer of a procuring entity shall publish and publicise all contract awards on their notice boards at conspicuous places, and website if available within a period as prescribed.

You will remember that in June 2018, the President issued a directive by way of Executive Order No. 2 of 2018 to the effect that all tender awards must be published. The published details were to include among other details, particulars of suppliers including owners, directors, and beneficial ownership.

See the issue on particulars to be published pursuant to the Executive Order as reported online by The Star https://www.the-star.co.ke/news/2018-06-14-uhuru-order-all-tender-company-directors-must-be-made-public/

The Executive Order contained various requirements to be met by the accounting officers who are essentially the Principal Secretaries, CEOs, MDs and Director Generals of various government institutions. These included:

1. Requirement that all awards of certain value be published in the websites of the respective agencies including the contract value, contract price and period. Also to be included were the details of the members of the evaluation committee.

2. The current market price of the contract goods or services in question were also required to be published.

3. Details of the supplier – both corporate and individual including ID numbers, physical addresses among others. In essence, the companies and their owners were to be disclosed.

Read Executive Order No. 2 of 2018 here: https://ppra.go.ke/download/executive-order-2-of-2018/

‘Covid Billionaires’ Failed Disclosure

Well, as we know, this order was largely ignored and the state and its agencies continued with business as usual either half-heartedly publishing the awards or ignoring the order wholesomely.

On 31^st August 2020, the President issued yet another directive, this time directed at KEMSA to publish all awards related to Covid oriented procurement. This came up after the sleaze dubbed ‘Covid billionaires’ relating to graft in procurement of PPEs within the thick of the pandemic.

In issuing the second order, the President essentially revisited the Order No. 2 of 2018 requiring the same details to be published.

See https://citizen.digital/news/uhuru-orders-health-ministry-to-make-public-all-contracts-undertaken-by-kemsa-343804/ as reported online by Citizen Digital.

A look at KEMSA’s website reveals that this order was also somewhat ignored for three reasons:

1. KEMSA seems to have partially published the awarded contracts for the periods “till May 2021”, “January 2021 to April 2021” and “September 2019 to September 2020”. There seems to be no reporting of awards post April 2021. As it is well known, Delta Variant of Covid-19 came into the country mid 2021 with devastating results. The related procurement was never reported despite the President’s directive.

2. The efforts were simply half-hearted. For instance, between January and April 2021, only 6 awards were reported, while between October 2020 and May 2021, only 62 were reported. There is a likelihood that the figures reported were inaccurate or underreported.

3. The reporting left out some details. These include details like tax compliance, physical addresses and business partners of the awarded entities.

See KEMSA’s award reporting here: https://www.kemsa.co.ke/tender-awards/

For clarity, we are not picking on KEMSA, NO. The award reporting in compliance with the Executive Order of the President has been downright poor and amounts to defiance by public officers of measures that would enhance transparency in a sector that gobbles up taxpayers hundreds of billions every year.

See similar complaints by the Auditor General as reported by the Business Daily online – https://www.businessdailyafrica.com/bd/economy/epra-flouts-uhuru-order-publishing-of-tenders-3672356

What is our point exactly?

This is the third time the state is attempting to create transparency in high value procurements by the Government and public entities. This time it seems to be backed by pressure from the IMF as the country needs critical support from the Fund in view of poor economic performance.

If you look at almost every website of a major parastatal or ministry, you will find systematic, clear and committed publishing of upcoming tenders, list of prequalified firms and other tender related information, except awards.

This leads us to one conclusion – that the awards are a sensitive area that many would rather not touch or deal with. Our conclusion is that the reluctance is due to the faces behind the award, namely the beneficial owners, and the variance between the award values and the market prices of the procured goods, works or services.

What can be done?

In the Executive Order and the August 2020 directive, the President stated:

“Through the use of technology, we will go a very long way towards ensuring that we have the confidence of our people and even donors”

We equally believe that the implementation of such orders can only be realized using compulsory technology. We propose that the AG and PPRA looks into the possibility of installation of an award reporting portal that provides for input of the targeted details.

The input of the details and issuance of an e-certificate should be a pre-condition to signing of any procurement contract, payment of any funds and even issuance of Tax Compliance Certificate to any entity.

The burden of compliance with Article 227 (1) of the Constitution requiring transparency in public procurement is not for the faint hearted. Article 227 (1) coupled with Article 10 of the Constitution on values and principles should be implemented by the state in the most ruthless, unreasonable, precise and brutal manner if the graft in the sector is to be stemmed.

Yes, we said unreasonable – for a time comes, when unreasonable men can only be tamed and made to adhere to the law through application of seemingly unreasonable measures.