By CHRIS OANDA
Our first election under the 2010 Constitution has installed Governors as CEOs of county affairs, and in the subsequent three-year transition period, Governors will perform their duties with support from technical staff seconded to the counties by the National government. The seconded staff have a mission to ensure that public services are not disrupted in the transition phase of devolution, and that counties in time, develop capacity to manage core functions professionally.
Interestingly, policy and oversight for public procurement will be co-ordinated at national level guided by the Public Procurement and Disposal Act, currently being amended to realign it to the new Constitution.
Recently gazetted regulations such as the Public Procurement and Disposal (County Governments) Regulations 2013, reinforce this position. Here, County Governments are treated as Procuring entities and must adhere to defined procedures and spend thresholds like any other national government department or agency.
Under the circumstances, it will be ill advised and reckless, if not illegal, for governors to ignore the public procurement law and procurement professionals (County Heads of Procurement) deployed by the national government through the Transition Authority to assist with establishment of procurement functions and capacity in the counties.
There is vigorous debate among some politicians and technocrats to the effect that “procurement law and regulations are slowing down procurement processes and jeopardising successful implementation and completion of projects”.
This version was echoed by the Jubilee campaign prior to the last election.
However, there is need to tread cautiously even as we implement envisaged changes to the existing procurement law and regulations.
The current procurement law has served us reasonably well in taming procurement excesses of the 1970s, 1980s and 1990s where we manufactured many national white elephants; and in the last ten years, we have witnessed rapid and significant economic developments under the Kibaki Government, yet most these successful projects were procured under the existing procurement law.
The billions of shillings spent every year in public procurement warrants meticulous strategising, intelligent market-surveys and realistic planning prior to execution within established legal and regulatory frameworks.
Further, economic, social and political objectives in Vision 2030 milestones, which drive public procurement and are enshrined in Article 227 of the Constitution, justify the project (which takes time) approach to public procurements — clearly a necessary inconvenience. But only to the unscrupulous with intent to subvert public procurement processes for personal gain.
County executives and technocrats will do well to acknowledge that there are no two ways about public procurement. For want of a better way of phrasing it, Governments both national and county, cannot and should not make spot-purchases that are not planned for.
There is no doubt that the procurement law is in need of comprehensive review and overhaul. It may appear cumbersome and indeed it is, as it was originally designed with more focus on “catching thieves and preventing the then endemic thuggery of public coffers”.
Truthfully, this law was not skewed toward just “promoting efficient public procurement.”
Under Vision 2030, the Constitution and onset of devolution, the focus of procurement law review must be on strengthening the institution or oversight body (Public Procurement Oversight Authority) and simplifying the law without creating new loopholes for misprocurement.
Return to sender
Actions to the contrary will only send our country back to the dark ages of wanton pilferage of the National Treasury.
Layer upon layer of bureaucracy that is today’s public procurement process must be collapsed.
To avoid creating an authority vacuum, the procurement professional must be empowered to direct the procurement process — and most importantly, own and be held accountable for the process.
Post-mortem exams of recent and past procurements gone awry, the BVR case not excluded, suggest that the slow pace of procurement and failed-deliveries, are largely due to competing interests in the public procurement arena with various centers of authority each unashamedly attempting to influence the outcome of given procurement processes.
It is widely known that procurement officers recently deployed to several counties under transition arrangements have encountered low levels of support and co-operation. Some have even been returned to sender – back to central government! It is also known, as revealed by procurement audits, that these same unwelcoming Counties, previously Districts, had and still have “little to non-capacity” to professionally handle procurement.
It is also well known that most Constituency Development Fund procurements in the Mashinanis, were conducted with total disregard of established procurement laws and regulations, and consequently brought little or no benefits to constituents.
The question therefore that begs to be answered is “without embracing the procurement law and the professionals charged with its implementation, how will the Counties conduct procurement within the law, while supporting national development objectives?”
I submit that County executives have little option but to operate within the framework of the day embracing professionalism in their procurements, if they are to bring any development, and avoid becoming casualties of procurement and related anti-corruption laws.
Eng. Oanda is Chairman Kenya Institute of Supplies Management.
