ETHICAL ISSUES IN PROCUREMENT OF CONSULTANCY SERVICES

In order to achieve value for money and to effectively contribute to the efficient service delivery, public procurement practice must adapt to a strong ethical bent. It must be practised so as to be void of leakages and loss, corruption and vender favouritism.

They way to address these concerns is by adopting a strong sense of ethics such as:

  • Avoiding collision.
  • Discouraging fake competition.
  • Removing any arbitrary from the bid evaluation process.
  • Ensuring that the goods and services received reflect the precise quantities actually delivered.
  • Using slicing/splitting to avoid adopting the appropriate procurement method.

The following ethical positions are to be adopted by all procurement officers within all procurement entities.

1. Avoidance of Collusion
No procuring entity, public official, vendor (suppliers) or person may collude or attempt to collude with any other person to make any proposed price, higher than would otherwise have been the case, or to have a vendor refrain from submitting a tender, proposal,
quotation/withdraw/change to a tender or proposal.

No procuring entity, public official, vendor (suppliers) or person may collude or attempt to collude with any other person to make any vendor or contractor to refrain from submitting an appeal to the administrative review board. It should be noted if a person contravenes any of these requirements, the following may apply:

  • Both vendors and persons referred to above may be disqualified from entering into a contract for the procurement.
  • If a contract has already been entered into with either person referred above the contract may be voidable at the option of the procuring entity and the vendor may be debarred from any future procurement. The voiding of a contract by the procuring entity does not limit any legal remedy the procuring entity may have.

2. Avoidance of Conflict of Interest
A person has a conflict of interest with respect of a procurement, if the person or a relative of the person seeks or has direct or indirect interest in another person or a vendor/consultant who seeks a contract for the procurement.

For the purposes of clarity, relative means:

  • A child, parent or brother of a spouse.
  • A spouse, child, parent, sister or brother.

It is imperative that all officials involved in procurement, avoid at all times any conflict or perception of conflict of interest. Any official who has a conflict of interest/potential conflict with respect of a particular procurement may not take part in the procurement proceeding and may not take part in decisions relating to a contract or procurement after a contract has been entered. When such an officer refrains from doing his duties pertaining to a particular procurement, they must disclose the conflict of interest/potential conflict to the head of the procuring entity. If a person participates in a procuring procedure despite a conflict and contract is
awarded to a relative or another whom the person had a vested interest, the contract shall be voidable at the option of the procuring entity.

3. Equal Opportunity
Any form of discrimination discourages participation in public procurement and undermines any efforts to achieve value for money through open competition. Consequently no procuring entity or procuring officer may discriminate against any potential bidder(s) based upon gender, ethnicity, religious affiliation, physical disability or party affiliation in any procuring proceeding except specifically and only where such discrimination is a direct and unavoidable consequence of a preference program instituted by the PPRA Act. Procuring entities shall endeavour in developing shortlists to reach out to a broad mix of bidders/consultants that reflect the diversity of the company which they operate.

4. Confidentiality and Limited disclosure
Confidentiality is an important principle to uphold if competition is not to be undermined. It is also an area of potential abuse and so procurement entities must be diligent in ensuring confidentiality of bidder information prior to tender opening process is a principle that is upheld at all times. During or after procuring proceedings, no procurement entity, employee/agent of the procuring entity, member of the board or committee of the procuring entity may disclose information relating to a procurement procedure whose disclosure would prejudice legitimate commercial interest or inhibit fair competition.

No information may be disclosed relating to evaluation, comparison or clarification of tenders, proposal or quotations on the contents of tenders, proposals or quotations prior to the bid openings. Whether the disclosure of the record of the procurement proceedings as may be required in debriefing bidders or in an investigation, an employee, agent may not accept when ordered to do so by a competent court and subject to the conditions of such an order, disclosure any information which could not be in the public’s interest if its disclosure would be contrary to law or would inhibit fair competition.

Note that such information disclosure restrictions do not apply to information requests to PPRA. The Auditor General and other oversight organs authorized by laws of Kenya. All procurement records shall be made available for inspection upon demand by PPRA,
Auditor General and other oversight organs authorized by the laws of Kenya.

5. Avoidance of all Corrupt Practices in Procurement
It is a direct breach of the procurement law to participate in any corrupt practices. No person, agent or employee shall be involved in any corrupt practice in any in any procurement proceeding. If they contravene this requirement the following shall apply:

  • The person may be disqualified from entering into a contract of procurement.
  • If the contract has already been entered, it may be voidable at the option of the procurement entity.
  • The person may be debarred from future procurement.

The voiding of a contract does not limit any other legal remedy the procurement entity may have.

6. Avoidance of all fraudulent practices in procurement
Any kind of fraudulent practice undermines the objective of value for money critical to achieving efficient delivery of service. According to the act, no tenderer, contractor, service provider, person or public official shall be involved in a fraudulent practice in any procurement proceeding.

Some of the common fraudulent practice may include:

  • Using fake receipt to claim reimbursement or justify the procurement done under the low value method.
  • Using fake performance invoice.
  • Certifying the receipt of goods, services, or work that have not been fully delivered or differ from the contracted specification/quality.
  • Authorizing contract variations for personal gains.
  • Eliminating competition through use of a compliance criteria imposed at the time of evaluation.
  • Disclosing a vendor’s tender or proposal submission to another bidder prior to the public opening of documents.

7. Avoidance of all Obstruction and Undue Delay in Procurement Proceedings No person may obstruct or hinder a person carrying out a duty/function under the procurement law or exercising power under the law knowingly lie to/or mislead a person carrying out duty/function under the public procurement law.

No delay without justifiable cause may be accommodated with regards to the opening or evaluation of bids or the awarding of contract beyond the prescribed period. Any person obstructing or unduly delaying a procurement proceeding including making payment is breaking the law and may be sanctioned in accordance to the PPADA.

8. Exacting Inappropriate Influence in Procurement Proceedings
No person may unduly influence or exact pressure on any member of a procurement committee, employee or any agent of a procuring entity to take a procuring action which favours/intends to favour a particular bidder. Neither may any person open any sealed bid including such bids as may be submitted through an electronic system nor any document required to be sealed may he/she divulge its
contents, prior to their point and time for the public opening of the bids/proposals.

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