MONITORING OF PUBLIC

PROCUREMENT BY CIVIL

SOCIETY ORGANIZATIONS

KIPKEMBOI CHERONO

BA, MSc, MKISM

SESSION OBJECTIVES

Definition of monitor/ monitoring

Understand the legal framework for

monitoring

The importance of monitoring in public

procurement

Conditions for effective monitoring

Types of monitoring

Opportunities for CSO engagement in the

procurement cycle2

DEFINITION

The Oxford Dictionary of English (ODE) defines

the verb “monitor” as “to observe and check the

progress or quality of (something) over a period

of time; keep under systematic review.”

“monitoring” is “an intermittent (regular or

irregular) series of observations in time, carried

out to show the extent of compliance with a

formulated standard or degree of deviation from

an expected norm”

The role of monitoring is to assess whether the

objectives are being met.3

PPADA REQUIREMENTS CONCERNING

MONITORING

The PPADA does not define the meaning of

the term “monitor” or “monitoring”.

The Act provide specific requirements

concerning the monitoring of public

procurement.

The Public Procurement Regulatory

Authority has the primary role to monitor

public procurement and asset disposal

system to ensure compliance.

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PPADA REQUIREMENTS CONCERNING

MONITORING

Part II of the Act, establishes the bodies

involved in the regulation of public

procurement and their roles.

The National Treasury (Section 7) is

responsible for public procurement and asset

disposal policy formulation.

S. 8 establishes the Public Procurement

Regulatory Authority (PPRA) as a body

corporate

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ROLE OF PPRA

S.9 outlines the functions of the Authority which include

among others;

a) Monitor, assess and review the public

procurement…..system to ensure that they respect

the national values and other provisions of the

Constitution including Article 227…;

b) Monitor the public procurement system and report

on the overall functioning of it and present to the

Cabinet Secretary and the county executive

member for finance in each county, such reports

and recommendations for improvement;6

ROLE OF PPRA

d) Monitor classified procurement information

including that of specific items of security

organs and make recommendations to the

Cabinet Secretary

e) Monitor implementation of the preference

and reservation schemes by procuring entities

l) Monitor and evaluate the preference and

reservation schemes….and provide quarterly

public reports

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OTHER REQUIREMENTS

The Act provides for reporting obligations of

procuring entities`

1. Preparation and publication of

procurement plans

2. Submission of reports on procurement

above Kshs. 5 million to PPRA

3. Part of the procurement plan

demonstrating application of the

preference and reservation schemes

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ROLE OF MONITORING

Monitoring in public procurement has the

following functions:

✓ Assessing the way in which the public

procurement system develops as a whole

and the direction in which it is moving

✓ some trends can be identified only after

years of observation;

✓ providing meaningful information that is

essential for policy making;

✓ ensuring compliance with procurement laws 9

ROLE OF MONITORING

✓ Identifying the need for any changes in thesystem;

✓ Setting short and long-term priorities andevaluating whether they have beenachieved;

✓ Analysing the potential effects of alternativesolutions;

✓ Providing guidance for procurement policyand implementation decision making;

✓ Providing information of relevance todecisions made by other policy makers. 10

CONDITIONS TO ENSURE EFFECTIVE

MONITORING

To ensure that monitoring yields meaningful

results, a number of conditions must be fulfilled.

1. First, the policy goals and objectives of the

public procurement system should be

consistent over time, as otherwise it would be

difficult to compare the results obtained

through the monitoring process.

2. availability of good, reliable data is essential.

3. effective monitoring requires the staff involved

in monitoring activities to possess good

analytical and reporting skills. 11

CONDITIONS TO ENSURE EFFECTIVE

MONITORING

They need to know;

✓ what kind of information is useful,

✓ how to collect this information,

✓ how to proceed with data gathered,

✓ how to draw conclusions, and

✓ how to present the results obtained by the

monitoring.

4. the effectiveness of monitoring depends on

official support, guidance and actions.12

TYPES OF MONITORING

The following forms of monitoring can be

identified:

✓ Audit of compliance (procedural

compliance);

✓ Performance evaluation/ performance

measurement;

✓ Policy compliance monitoring.

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AUDIT OF COMPLIANCE

The audit of compliance consists of verifyingthat the legal provisions on public procurementhave been properly applied.

This means the verification of the actions ofprocuring entities in terms of legal compliance.

Monitoring is conducted throughchecks/inspections of the legality of the actionsby the procuring entities e.g.

✓ the qualification of bidders

✓ the selection of the best tender or

✓ the failure by PE to publish a contract noticewhere its publication was required.

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AUDIT OF COMPLIANCE

Enhance openness and transparency throughinspections to detect application of non-competitive, non-transparent procedures;

Such checks/inspections aim to discourage PE’sfrom using opaque procedures in award of publiccontracts. The result is to increase in the share ofcompetitive procedures.

Similarly, if the policy is to increase the participationof SMEs and other disadvantaged groups in publicprocurement, monitoring of compliance with therules concerning selection and qualification rules(minimum requirements, capacity levels,documents requested, etc.) should result in theremoval of barriers faced by SMEs that arecompeting for public contracts. 15

PERFORMANCE AUDIT/ MEASUREMENT

“Performance measurement is about seeking to

answer the fundamental question of whether the

procurement system and operations ultimately

deliver in accordance with the main objectives set”

This kind of monitoring focuses on the assessment

of the functioning of the procurement system in

terms of its efficiency and effectiveness.

To perform this assessment, the persons involved

in the monitoring need to collect and proceed with

a wide array of data concerning procurement

processes. 16

PERFORMANCE MEASUREMENT

The procurement indicators normally include;

Number of tenders published and/or launched during a

given reporting period and the procurement method used

i.e. assessment of the competitiveness;

Average time from the publication of the procurement

opportunity and the conclusion of a contract to establish

the efficiency of the system;

Estimated cost in the value of the contract and the prices

of selected tenders (Any comments?);

Number of tenders rejected in procurement processes

(good indicator of the competitiveness of the

procurement market);

Number of complaints (appeals)17

PERFORMANCE MEASUREMENT

Performance measurement is conducted at

various levels:

National level – assessing the performance

of the national public procurement system as

a whole; (PPRA, KENAO)

Procuring entity level – assessing the

performance of the procuring entity’s

operations;

Contract management level – addressing

the issue of delivery of an individual contract.18

SOURCES OF INFORMATION FOR

MONITORING

Notices related to public procurement – tenderadvertisements, contract notices, contractaward notices;

Transparency notices i.e. notices of the PEindicating its intention to procure through limitedtender. S102 (1) (d).

Individual reports, notifications of contractingauthorities (information on the application ofexceptional procurement procedures, recordsof the procedures);

Summary reports prepared on a regular basis(e.g. annually) by contracting authorities anddelivered to the public procurement PPRA

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Opportunities for CSO

engagement in monitoring

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PROCUREMENT PLANNING

S.53 Stipulates that the accounting officer shallprepare an annual procurement plan which isrealistic.....within the approved budget prior tocommencement of each financial year as part of thebudget preparation process

Procurement plans are a good start point formonitoring of public procurement.

Though public bodies are required by law toprepare procurement plans these are not publishednor publicised for interrogation by the public, hencecannot be easily monitored.

Cases abound of public bodies which procuregoods, works and services outside the approvedprocurement plan, sometime for politicalexpediency. 21

MARKET PRICE INDEX

S.54 (2) provides that standard goods, services

and works shall be procured at the prevailing

market prices and;

Subsection 3 requires PPRA to issue a quarterly

market price index as a reference guide to assist

accounting officers make informed price

decisions.

There have been instances where the media

including social media have reported procuring

entities that procure over-priced common user

items despite there being a market-price index.22

INVITATION TO TENDER

S.74 (1) sets out the contents of an

invitation to tender

The Invitation to Tender shall ensure that

adequate information is provided including

“a statement that those submitting tenders

or their representatives may attend the

opening of tenders”

Public opening is integral to transparency

and monitoring

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TENDER ADVERTISEMENT

S. 96 (2) makes it mandatory for accounting

officers for goods, works and services equal to or

more than the prescribed threshold to advertise in

the dedicated Government tender’ portal or its

own website, or a notice in at least daily

newspapers of nationwide circulation;

These can be monitored to ensure they meet the

legal requirements by reviewing the tender

documents and seeking clarifications.

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EVALUATION OF BIDS/TENDERS

S.65 makes it unlawful to be construed to influenceevaluation and comparison of tenders i.e. undueinfluence.

S.67 During and or after procurement proceedingsand subject to sub-section (3), no procuring entityand no employee or agent.......or member of aboard, commission or committee......shall disclose;

(c) information relating to the evaluation,comparison or clarification of tenders,proposals or quotations; or

(d) the contents of tenders proposals orquotations

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PROCUREMENT RECORDS

After a contract has been awarded to any

person or the procurement proceeding has

been terminated, the procuring entity shall,

on request, make the records for the

procurement available to a person who

submitted a tender, proposal or quotation, or

any other interested member of the public

where such information is aligned to the

principle of public interest….

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PUBLICATION OF CONTRACTS

S.138 (1) The Accounting Officer……shallpublish and publicise all contract awards ontheir notice boards at conspicuous places,and website if available within a period asprescribed.

S. 138 (2) An accounting officer …shallreport all contract awards to the Authority asprescribed

S. 138 (3) The Authority shall publish on itswebsite notices of the reports on contractawards from procuring entities.

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CONTRACT ADMINISTRATION

S. 151 The accounting officer shall appoint

a contract implementation team for complex

and specialized contracts.

Subsection 3 gives discretion to the

accounting officer to co-opt a member to the

contract implementation team from another

procuring entity or outsource.

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PUBLIC PROCUREMENT ADMINISTRATION

REVIEW BOARD (PPARB)

The basic function is to conduct an impartial andindependent review of appeals arising from aprocurement process and decision of procuringentities.

Appeals are usually reviewed by means ofinterlocutory procedures, in which two parties – theaggrieved bidder and the procuring entity – presenttheir arguments before the Board.

The Board’s role is to settle the dispute betweenthose two parties.

Though it is not involved in the monitoring of publicprocurement, their decisions are instrumental in themonitoring of developments in the field of publicprocurement, as they concern similar actions oromissions of procuring entities. 29

CONCLUSION

Monitoring is a meaningful exercise only if it isconducted over a defined time period and by usingthe same or similar methodology or combination ofmethodologies.

Data may vary from year to year, but in a longerperspective trends should be visible.

Conclusions are also valid only if the data collectedis comparable and if it is compared under similarconditions (for example, during a specific period,procurement provisions remain more or less stablewith regard to such elements as financial thresholdsfor the application of procurement law, time periods,conditions for the application of various types ofprocurement procedures, etc.).

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