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Loopholes impede transparency of Covid-19 procurement

By People Reporter
Tuesday, May 19th, 2020
Medical aid getting delivered.

Polycarp Otieno 

The Kenyan government has been receiving and allocating colossal amounts of funds to flatten the Covid-19 pandemic curve, and is estimating to spend Sh40 billion towards fighting the virus. 

However, there have been queries on the credibility of how the funds will be used and tracked.

This is because of the glaring gaps in Kenya’s current procurement legislations and policies for emergency procurements as well as publication of information on emergency procurements. 

The Public Procurement and Disposal Act provides for use of direct procurement whenever there is an urgent need.

The Act defines urgent need as a need  for goods, works or services in circumstances where there is an imminent or actual threat to public health, welfare, safety, or of damage to property, such that engaging in tendering proceedings or other procurement methods would be impractical because of time. 

Other circumstances where a procuring entity may use direct procurement, include instances of war, invasion, disorder and natural disaster.

It is, therefore, suffice to assume that procuring entities tackling the pandemic both at the National and county levels have been using direct procurement.

But does this procurement procedure as captured in the Act guarantee a clean procurement process and that the billions disbursed will be utilised effectively?

The Executive Order No. 2 of 2018, states in part, pursuant to the Procurement Act, and other enabling legislation, public procurement of public goods, works arising from the declaration of a national emergency or national disaster, shall be exempt from publication.

This means procuring entities that are currently in the frontline fighting against Covid-19 are not obligated to publish any information on the procurement being undertaken. 

Further, the Public Procurement Regulatory Authority (PPRA), recently issued a circular outlining measures while handling procurement activities well as advising procuring entities to scale down their procurements.

It further instructs accounting officers to review approved procurement plans and methods used and, where necessary, re-allocate resources that fast-tracks procurement and facilitate delivery of essential services during the pandemic. 

The PPRA guidelines, however, just touch on the operational and technical nature of procurements, but doesn’t highlight the legal implications that may be conduit for collusion, price gouging and corruption.

Because of the rush, emergency procurements can sometimes be prone to unqualified suppliers, poor quality goods, shoddy contractors and inordinately high costs. 

Undertaking direct procurement with no obligation to publish information on the process creates a loophole that might be exploited by corrupt persons.

Strengthening Kenya’s procurement legislation for emergency situations will help reduce corruption issues and guarantee lives of many citizens saved from efficient spending.

Four years since the enactment of the Act in 2015, the government is yet to approve and gazette the PPAD Regulations.

Once gazetted the Regulations will assist the standardisation of public procurement and asset disposal management system and ensure accountability.

The National Treasury and National Assembly, therefore, need to urgently gazette these regulations.

Additionally, emergency procurement strategies need to be rapidly digitised with data on prices, suppliers, lead times and specifications, continuously being updated.

It is important for government to work with civil society actors who play a major role in ensuring transparency and accountability during such uncertain times. —The writer is a Deputy Programme Officer at Transparency International Kenya

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