Accounting Officer
Communications Authority
Kenya Pipeline Company
money?The Public Procurement Administrative Review Board
Public Procurement
Tender Opening Committee
Transcend Media Group Limited
Transpower Energy Solutions Limited

LETTERS: Pagination adds no value to tendering

Tender Opening Committee is required to assign an identification number and record the number of pages for each bid opened.

LETTERS: Pagination adds no value to tendering

Serialisation remains a critical aspect to give assurance on the integrity of the tendering process. FILE PHOTO | NMG

Over the past few years, public entities have come under the spotlight for the failure to realise value for money in procurement. At the most basic level, value for money means to acquire the goods, works or services on the best available terms. In some jurisdictions, the value for money objective is also referred to as ‘best value’ and has been further defined as the outcome that provides the purchaser with ‘the greatest overall benefit’.Public procurement that is based on value for money is thus ‘intended to deliver a better allocation of scarce public resources among competing ends’. The most recent case in which value for money was the tipping point is the case of Communications Authority of Kenya (CA) filed by the Transcend Media Group Limited centred on the requirement for serialisation of bids. Section 74(1)(i) of the Public Procurement and Asset Disposal Act, 2015, makes it mandatory for the Accounting Officer to ensure that all invitations to tender meet several criteria, one of which is serialisation of pages by the bidders.Tender Opening Committee is required to assign an identification number and record the number of pages for each bid opened.

This means serialisation remains a critical aspect to give assurance on the integrity of the tendering process. But, what importance should serialisation have when compared to other requirements? Where should it be placed as regards the evaluation criteria and the evaluation process and, importantly, when it compromises realisation of value for money?The Public Procurement Administrative Review Board (PPARB) on June 21 delivered a significant ruling that arguably brought to rest the issue of serialisation.The CA had put out a Request for Proposals to undertake marketing communications and advertising.The requirement had been set as a mandatory evaluation criterion by the CA. Referring to a previously decided case between Transpower Energy Solutions Limited and Kenya Pipeline Company, the PPARB made remarks as follows: -“The Board wishes to observe that there is a growing number of cases where bidders with competitive prices are eliminated from tender processes at the preliminary evaluation stage on the basis of non-substantive and minor issues such as lack of pagination and non-declaration of litigation history or because a bidder has previously sued a procuring entity elevated into mandatory requirements.”Some tenders containing such requirements often end up being awarded to a bidder with very high price.In the case of pagination for instance, the Board does not see any reason a tender opening committee should not be able to paginate or initialise tender documents to avoid tampering with the documents [and to ensure that] there is fair competition.The PPARB pointed out that Articles 201 and 227 of the Constitution has put emphasis on the prudent use of public resources.The ground of the review on serialisation was, therefore, allowed and succeeded.While Section 74(1) (i) of the PPADA, 2015 seeks to secure and preserve the integrity of the tender documents and proceedings, a purposive interpretation of the said section clearly yields to an interpretation and conclusion that serialisation should essentially be integrated in the tender only as part of the invitation to tender and not as an aspect of the mandatory evaluation criteria.Indeed, the said requirement is clearly outside the gamut of mandatory requirements criteria as set out under Section 55 of the PPADA, 2015.In light of this decision, there is a clarion call for public entities to gear efforts and attention towards maximisation of value for money. This is from the drafting of tender documents to the evaluation process and implementation of the resultant contract.Most important, public entities need to remain alive to the fact that in the law, a procuring entity and in particular the tender evaluation team is duty bound to stick to the evaluation criteria as developed and set out in the tender documents.The implication of this is that once bid serialisation is set as mandatory criteria, it will hold sway.This is regardless of the suitability or responsiveness of the bid in question to the chagrin of realising value for money.

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