- One of the loopholes is in awarding of tenders that don’t involve the Attorney-General’s scrutiny.
- The law requires the accounting officer of a State entity to prepare tender contracts, and forward those exceeding Sh5 billion for clearance by the Attorney-General’s office.
Public procurement often features prominently in corruption scandals in Kenya, pointing to loopholes that have made it easy for officials to manipulate systems and steal billions of shillings.
One of the loopholes is in awarding of tenders that don’t involve the Attorney-General’s scrutiny. The law requires the accounting officer of a State entity to prepare tender contracts, and forward those exceeding Sh5 billion for clearance by the Attorney-General’s office.
However, the AG’s office says some ministries, departments, and agencies have not been complying with this legal requirement.
Others have been splitting the awards to less than Sh5 billion, as was in the case of Kenya Medical Supplies Authority (Kemsa), to escape comprehensive oversight. Kemsa by-passed the regulation by splitting Sh7.8 billion tenders and awarding the contracts to 102 firms.
Revising the law to lower the Sh5 billion threshold to Sh500 million will not only prevent corrupt tenderpreneurs from benefiting from existing practices of inflating prices but also ensure the award criteria is truly based on the lowest price or the most economically advantageous tender. It will also compel the accounting officer to refer the doubtful contracts to the AG for approval, further safeguarding against corruption, favouritism, and ensuring value for money.
However, tight public procurement laws cannot benefit Kenyans if they are not applied.
Officials have been making unlawful procurement decisions, money has been lost, and the State is blamed and embroiled in court battles due to contract breaches, unlawful dismissals, and lawyers’ fees. Claims related to human rights violations are estimated to have hit Sh101.2 billion by the end of 2019.
Such officers should be penalised to discourage the mentality that a procurement offence so committed is the ministry’s or parastatal’s because the government is, in any case, the defendant and not the individual officer.
Scrutiny over lower value contracts also means more work for the Attorney-General’s office.
The government must therefore plan for increased staffing and other resources to ensure contracts to through the rigorous checks required to curb fraud.