MPs split over proposed law on restricted bidding

National Assembly Majority Leader Amos Kimunya during an interview with Standard shortly after the 2021/22 budget reading at Parliament by Treasury CS Ukur Yatani, on Thursday, June 10, 2021 [David Njaaga, Standard]

A section of MPs has opposed restricted bidding in the proposed law on public-private partnerships procurement.

The lawmakers argued that the move will disadvantage some individuals and it could be open to abuse.

While debating amendments to the Public-Private Partnership Bill, 2021 sponsored by National Assembly Majority Leader Amos Kimunya, the MPs rejected the proposal by Finance and Planning committee chairperson Gladys Wanga to introduce a new section on procurement.

“I beg to move that clause 37 be amended by adding restricted bidding,” Ms Wanga said.

The proposed amendment states that: "A contracting authority may procure a public private partnership project through direct procurement, privately initiated proposals or competitive bidding."

Wanga argued that the committee recommended introduction of restricted bidding.

The amendment also introduces a new subsection immediately stating; "In procuring a public private partnership project, a contracting authority shall be guided by the principles of transparency, cost-effectiveness and equal opportunity. The Cabinet Secretary shall prescribe guidelines for the procurement of a public private partnership."

Seme MP James Nyikal asked the committee to get rid of the new amendment as it will lock out some individuals. “When you talk of restricted bidding not unless you qualify for it, it will favour certain people and I am not sure whether the committee looked into this in detail,” he said.

Kitui East MP Nimrod Mbithuka concurred with Dr Nyikal saying restricted bidding will create an avenue for only a few individuals to benefit.

“I oppose. This is a good gesture but an amendment need to be made to ensure restricted tendering will only come after pre-qualification because it’s at that level that these companies will be checked,” he said.

Nominated MP David ole Sankok said: “This is where corruption will meet the road. Adding restricted bidding is very dangerous, let us remain with the first Bill. There is no need to amend this clause."

Some legislators, however, supported the new amendment arguing that with the level of investment in most projects under public-private partnership, there is need for restricted bidding.

They said the new amendment provides a method of selecting the number of suppliers shortlisted because of their expertise.

“This method will eliminate brokers and briefcase businessmen so that we stop wasting time and have professionals do their work,” said Kabondo Kasipul MP Eva Obara.

Gatanga MP Ngugi Nduati backed Wanga's amendment, saying, “I support the amendment because we are seeing instances where the Treasury is coming up with their own standard documents and they are messing up such that if you are to amend a contract the government can lose a lot."

Minority Leader John Mbadi said: “This will help target particular individuals who will do best of what is needed of them. This is not a bad idea unless it’s abused.”

Mr Kimunya said after the new amendment, a new clause will be formulated to define circumstances under which restricted tendering will take place.

“If you advertise you get all manner of brokers saying they will do the job. By knowing the only companies that you are well assured will do the job as required then you walk to them and get your job done,” he said.

He added, “It will help you know for this project I can only go to these people and they will sort me out.”

“If you get brokers who can offer you a better deal and go and negotiate with the two providers why not?” said Kikuyu MP Kimani Ichungwa

The Bill also proposes amendments to clause 21 by inserting new subsections that state: "Without prejudice to the periods specified under the Second Schedule, a contracting authority shall not enter into a public-private partnership arrangement for a period exceeding thirty years."