February 15, 2022

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THE PUBLIC PROCUREMENT AND ASSET DISPOSAL ACT, NO. 33 OF 2015

A new law governing procurement and assets disposal by public entities in Kenya known as the Public Procurement and Asset Disposal Act, No. 33 of 2015 ( the ―Act‖) came into force on 7th January, 2016. Below is a highlight of the provisions of the new Act: Objective of the Act The Act gives effect to Article 227 of the Constitution which provides for a system that is fair, equitable, transparent, competitive and cost-effective. The Act also provides for procurement by the county governments and makes provisions for e-procurement. Application The Act will apply to all public entities including state organs, departments, state corporations, county governments, companies owned by public entities and bodies in which the national or county government has a controlling interest, among others. Exclusion Noteworthy is that the Act will not apply to: procurement and disposal of assets under Public Private Partnership Act, 2013; and procurement and disposal of assets under bilateral or multilateral agreements between the Government of Kenya and any other foreign government, agency, entity or multilateral agency unless otherwise prescribed in the Regulations. In our view this provision effectively excludes Government to Government contracts from the competitive procurement method. Repealed law The Act repeals the Public Procurement and Disposal Act, 2005 which was one of the laws governing public procurement in Kenya but provides that procurements which commenced before 7th January 2016 shall be continued in accordance with the law applicable at the time, among other reservations. Procurement at the Counties The County Treasury will be responsible for the implementation of the Act at the county level. Tender Security While the repealed Act was silent on the value of the tender security, the new Act now specifies that tender security in any tender shall not exceed 2% of the tender as valued by the procuring entity. Citizen Contractors and County Reservations 20% of procurement at the County level will be reserved for County residents. Kenyan citizens (or entities in which Kenyan citizens own at least 51% shares) will automatically be entitled to an additional 20% of their total score in certain situations. Use of ICT in procurement In line with GoK‘s electronic procurement system, Information and Communication Technologies (ICT) may be used in procurement proceedings as will be prescribed in the Regulations. New procurement methods In addition to retaining the procurement methods under the repealed Act (i.e. Open Tendering, Restricted Tendering, Direct Procurement, Request for Proposals, Request for Quotations and Low Value Procurement) the new entrants under the new Act include: two-stage tendering; design competition; electronic reverse auction; force account; competitive negotiations; and framework agreements. Who is a successful tenderer? Under the Act, the successful tender shall be the one which meets any of the following requirements as will be specified in the tender documents: the tender with the lowest evaluated price; RFP- the responsive proposal with the highest score determined by the procuring entity by combining, the scores assigned to the technical and financial proposals; the tender with the lowest evaluated total cost of ownership; or the tender with the highest technical score, where a tender is to be evaluated based on procedures regulated by an Act of Parliament which provides guidelines for arriving at applicable professional charges Changes with regard to the evaluation process Post qualification due diligence: Under the new Act, the tender evaluation committee, may, after tender evaluation, but prior to the award of the tender conduct due diligence to confirm and verify the qualifications of the tenderer who submitted the lowest evaluated responsive tender to be awarded the contract. Professional Opinion: Under the new Act, all procurement function in Kenya will be handled by qualified procurement professionals who will be required to give an opinion. Note: With regard to the above two (2) procedures, the Act is silent on the timelines. The Act is also not express whether a bidder can be disqualified on the basis of such due diligence or opinion. It is also not clear what the due diligence will entail, particularly because it is done after evaluation, and how it reconciles with the provision that a successful tender can be the tender with the lowest evaluated price. Approval of procurements contracts by the AG All contracts of a value exceeding five (5) billion shillings will require to be cleared by the Attorney-General before they are signed. Liquidated damages and interest Under the new Act, and unless otherwise provided in the particular contract, public entities will be required to pay interest on any overdue amounts while the contractor will be liable to liquidated damages for delayed performance. Regulating bodies The National Treasury will be responsible for public procurement and asset disposal policy formulation. The PPOA has been replaced by the Public Procurement Regulatory Authority which will play an oversight role with regard to all public procurement in Kenya. The Public Procurement Administrative Review Board which reviews and determines tendering and asset disposal disputes has been retained under the new Act

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Uses of ICT in global Procurement

Chapman, et al, (2000); many companies conduct business using Electronic Commerce (ecommerce), whether focusing on business-to-business (B2B) or business-to-consumer (B2C) activities. They realize that easy access to information and communication and the delivery of their products or services are important drivers in developing and sustaining market competitiveness nationally and internationally. Having a supportive electronic logistics (e logistics) system is very important to maintain the company‘s competitiveness. The application of computers, internet and information communication systems can be seen in virtually all activity in the logistics industry, such as transportation, warehousing, order processing, materials management, and procurement. It can help companies to achieve competitive advantages by providing customers with superior services. 1. Information sharing- is an important prerequisite relevant function in the global procurement concept, or securing information accessibility to all supply chain partners involved in global procurement. Information transfer which is probably the most relevant function in the global procurement concept ensures the widespread dissemination of the internet and e-business technologies. The faster information flows along the supply chain, the faster operational decisions can be made. The faster material and cash flow along the supply chain, the faster a company‘s money is freed from the manufacturing or procurement cycle. 2. Low priced/affordable goods and services – Successful companies either have a productivity advantage that gives a lower cost profile or they have a value advantage that gives the product or offers a differential or competitive offerings or a combination of the two. Companies are no longer staying competitive simply through focusing on product quality and pricing as customers are becoming higher demanding related to customer service offer. 3. Lead time- In order to be the winners in the marketplace, timing and superior customer service are becoming the keys to attain competitive advantage for a company. Time-based competition is an important; Companies are facing currently as customers are becoming more time-sensitive and time-oriented in terms of better services, reliability and delivery. The ways to renew the customers‘ services and how they are delivered are critical capabilities for many companies to acquire nowadays. 5. A growing percentage of the overseas countries‘ economy, and other advanced industrial economies depends on imports and exports. Foreign trade, both exports and imports accounts for more than 30% of the goods and services produced in these countries. Companies are also distributing core business functions in product design, manufacturing, finance, and customer support to locations where work can be performed more cost effectively. The success of firms today and in the future depends on their ability to operate globally 6. Communication – Today, information technology provide the communication and analytic power that firms need for conducting trade and managing businesses on a global scale. Controlling the far-flung global corporation—communicating with distributors and suppliers, operating 24 hours a day in different national environments, coordinating global work teams, and servicing local and international reporting needs—is a major business challenge that requires powerful information system responses. 7. Globalization– Because of global communication and management systems, customers now can shop in a worldwide marketplace, obtaining price and quality information reliably 24 hours a day. To become competitive participants in international markets, firms need powerful information and communication systems. In a knowledge- and information-based economy, information technology and systems take on great importance. Knowledge-based products and services of great economic value, such as credit cards, overnight package delivery, and worldwide reservation systems, are based on new information technologies. Information technology constitutes more than 70 percent of the invested capital in service industries such as finance, insurance, and real estate. 8. Buyer-supplier relationships-A digital firm is one where nearly all of the organization’s significant business relationships with customers, suppliers, and employees are digitally enabled and mediated. Core business processes are accomplished through digital networks spanning the entire organization or linking multiple organizations. Business processes refer to the unique manner in which work is organized, coordinated, and focused to produce a valuable product or service. 9. Productivity – Developing a new product, generating and fulfilling an order, or hiring an employee are examples of business processes, and the way organizations accomplish their business processes can be a source of competitive strength. Digital firms sense and respond to their environments far more rapidly than traditional firms, giving them more flexibility to survive in turbulent times. Digital firms offer extraordinary opportunities for more global organization and management. Other significant trends Apart from increasing technology and emphasis on customer satisfaction, there are several other important trends in logistics. The following list includes some of the most significant. Globalization: Improved communications and better transport mean that physical distances are becoming less significant. Organizations can become global in outlook, buying, storing, manufacturing, moving and distributing materials in a single, worldwide market. As a result, international trade and competition are continuing to rise. Organizations used to look for competitors in the same town, but now they are just as likely to come from another continent. Reduced number of suppliers: In the past, organizations have used a large number of suppliers. This encouraged competition ensured that they got the best deal and maintained secure deliveries if one supplier ran into difficulties. The current trend, however, is to reduce the number of suppliers and develop long-term relationships with the best. Concentration of ownership: Large companies can get economies of scale, and they have come to dominate many supply chains. There are, for example, many shops and transport companies but the biggest ones continue to grow at the expense of small ones. The result is a continuing concentration of ownership, which you can see in many logistics sectors ranging from food wholesalers to cruise lines. Outsourcing: More organizations realize that they can benefit from using specialized companies to take over part, or all, of their logistics. Using a third party for materials movement leaves an organization free to concentrate on its core activities. Postponement: Traditionally, manufacturers move finished goods out of production and store them in the distribution system until they are needed. When there are many variations on a basic product, this

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ELECTRONIC DATA INTERCHANGE (EDI)

Electronic data interchange (EDI) is an electronic communication system that provides standards for exchanging data via any electronic means. By adhering to the same standard, two different companies, even in two different countries, can electronically exchange documents (such as purchase orders, invoices, shipping notices, and many others). An EDI message contains a string of data elements, each of which represents a singular fact, such as a price, product model number, and so forth, separated by delimiter. The entire string is called a data segment. One or more data segments framed by a header and trailer form a transaction set, which is the EDI unit of transmission (equivalent to a message). A transaction set often consists of what would usually be contained in a typical business document or form. The parties who exchange EDI transmissions are referred to as trading partners. EDI implies a sequence of messages between two parties, either of whom may serve as originator or recipient. The formatted data representing the documents may be transmitted from originator to recipient via telecommunications or physically transported on electronic storage media. EDI delivers a lot of benefits for companies that can afford the up-front expense of becoming EDI-enabled. Most stem from a single key starting point: data input. Because data is entered just once, errors are kept to a minimum, and the entire process is streamlined, saving paper and time and improving accuracy and order fulfillment for customers. In addition to data entry, other labor-intensive manual processing tasks, such as typing invoices, sealing envelopes, and affixing postage, are dramatically reduced or eliminated. People are employed more effectively, increasing productivity. Inventories are used more efficiently because EDI provides speedier, more accurate information on both the customer and supplier sides, reducing inventory costs, and lead times. In the long run, the investment in EDI delivers dramatic cost savings as well as the opportunity to do business within a wider, more global EDI-enabled trading community Key benefits of Electronic Data Interchange (EDI) Here are some reasons why businesses adopt EDI. Provides better customer services Edi tends to promote long-term buyer-supplier relationships and increase mutual trust Reduces lead times and stockholding Electronic trading documents can be delivered far more quickly than their paper counterparts, thus the turnaround time from order to delivery can be reduced. By using EDI for forecasting and planning, companies are able to get forward warning of likely orders and to plan their production and stock levels accordingly. Companies receiving advanced shipping notes or acknowledgments know in advance what is actually going to be delivered, and are made aware of shortages so alternate supplies can be sourced. Integrating electronic documents means they can be processed much faster, again reducing lead times and speeding up payments. Reduction in lead times through buyers and suppliers working together in real time environment. The integration of functions, particularly marketing, purchasing production and finance The replacement of paper documents e.g. purchase orders, acknowledgement slips, invoices, etc is used by buyers and sellers in commercial transactions by standard electronic messages conveyed between computers often without the need for human intervention . By replacing paper documents, your company can benefit significantly by: Reduced labour costs Elimination of human keying errors Faster document processing Instant document retrieval Remove reliance on the postal service Increase quality of the trading relationship Electronic trading documents when printed are much easier to read than copies faxed or generated on multi-part stationery by impact printers. Accurate documents help ensure accurate supplies. Batches of electronic documents are usually sequentially numbered; therefore missing documents can easily be identified, not causing companies to wade through piles of paper. Competitive Edge: Because electronic data interchange (EDI) makes you attractive to deal with from your customers’ point of view, and you are in their eyes cheaper and more efficient to deal with than a competitor trading on paper, your costs will be lower because you will require less manpower to process orders, deliveries or payments. It is no accident that the leading UK retailers all rely on EDI for placing orders and receiving invoices – they know the benefits they get and the costs that can be saved. End Repetition: If your trading partner wants a copy of a document, instead of calling you, they simply check their mailbox. This results in a great time savings from not having to copy and fax/mail copies of business documents. Save Time: EDI also saves time over paper processing since the transfer of information from computer to computer is automatic. There is no need to rekey information with EDI. And the chance for error drops to near zero, with no data entry. Expand Your Customer Base: Thus with improved customer service, you can ultimately expand your customer base. Many large manufacturers and retailers are ordering their suppliers to institute an EDI program. So, when evaluating a new product to carry or a new supplier to use, the ability to do EDI is a big plus. Disadvantages of EDI Too Many Standards: There are too many standards bodies developing standard documents formats for EDI. For example your company may be following the X12 standard format, while your trading partner follows the EDIFACT standard format. Changing Standards: Each year, most standards bodies publish revisions to the standards. This poses a problem to EDI users. You may be using one version of the standard while your trading partners are still using older versions. EDI is too expensive: Some companies are only doing business with others who use EDI. If a company wants to do business with these organizations, they have to implement an EDI program. This expense may be very costly for small companies. Limit Your Trading Partners: Some large companies tend to stop doing business with companies who don’t comply with EDI. For example WalMart is only doing business with other companies that use EDI. The result of this is a limited group of people you can do business with.

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BAR CODING

A barcode system is an optical machine – readable representation of data which shows certain data on certain products. A typical bar code usually consists of a series of parallel, adjacent bars and spaces. These predefined bar and space patterns are used to encode small strings of character data into a printed symbol. Bar codes can be read by optical scanners called bar code readers or scanned from an image by special software. Barcode systems are used to automate data collection where hand recording is neither timely nor cost effective. Barcode technology helps to identify and track products since it is a simple and inexpensive method. A typical barcode system consist of some infrastructure, either wired or wireless that connects some number of mobile computers, handheld scanners, and printers to one or many databases that store and analyze the data collected by the system. At some level there must be some software to manage the system. The software may be as simple as code that manages the connection between the hardware and the database or as complex as an ERP, MRP, or some other inventory management software. Supply chain management is easily manageable through many supply chain management based softwares, which makes integration of businesses easier. The process becomes even simpler with the aid of barcodes. Barcode technology helps keep track of products and services that they identify, and therefore provide all necessary information about them. Every point of the supply chain involves vendors and suppliers who must be able to provide all details when asked. Their inability to do so will mean being left behind and their job assigned to a competitor. The use of barcodes would ensure detailed and correct information, which ultimately helps to reduce costs. Barcodes provide accuracy and speed that help in reducing expenses incurred to rectify errors made by manual oversight or faulty data entry. Using barcoding for materials and supply chain management captures data faster and more accurately. Costs are lowered and data entry mistakes are minimized, making managing inventory easy and purchasing more efficient. Barcodes may also be scanned for: Tracking deliveries in transit, at key points of contact Recording issues of items from stock, updating stock levels Recording outgoing deliveries or sales, in an EPOS system to customers.

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Benefits of E-procurement

Saves time It is efficient  It is reliable Reduced transaction costs through the automation of requisitioning, purchase order management and accounting processes by the use of internet technology including online ordering etc. Less paper work as compared to manual Variety of suppliers and products to make a decision/ option Choice of high quality of products or latest technology Cuts on the cost of middlemen Reduction of ‗Maverick‘ purchasing i.e. purchases made outside the organizations contractual arrangements. Improved information flow and service through real time market intelligence and information. Such information includes finding the best price and quality points across a large range of suppliers through the use of marketplaces, order status and tracking, reduced inventory levels and also better demand forecasting. The ability to aggregate purchasing across multiple depts. or divisions without taking away any needed individual control or introducing time wasting authorization routines. There are seven main types of e-procurement: Web-based ERP (Electronic Resource Planning): Creating and approving purchasing requisitions, placing purchase orders and receiving goods and services by using a software system based on internet technology. E-MRO (Maintenance, Repair and Overhaul): The same as web-based ERP except that the goods and services ordered are non-product related MRO supplies. E-sourcing: Identifying new suppliers for a specific category of purchasing requirements using internet technology. E-tendering: Sending requests for information and prices to suppliers and receiving the responses of suppliers using internet technology. E-reverse auctioning: Using internet technology to buy goods and services from a number of known or unknown suppliers. E-informing: Gathering and distributing purchasing information both from n to internal and external parties using internet technology. E-market sites: Expands on web-based ERP to open up value chains. Buying communities can access preferred suppliers‘ products and services, add to shopping carts, create requisition, seek approval, receipt purchase orders and process electronic invoices with integration to suppliers‘ supply chains and buyer‘s financial systems

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E-PROCUREMENT

E-procurement is the combined use of information and communication technology through electronic means to enhance external and internal purchasing and supply chain management processes. This tool and solutions deliver a range of options that will facilitate improved purchasing and supply chain management. It is the business-to-business or business-to consumer or business-to-government purchase and sale of supplies, work, and services through the Internet as well as other information and networking systems, such as electronic data interchange and enterprise resource planning. The key enabler of e-procurement is the ability for systems to communicate across organizational boundaries. While the technology for e-procurement provides the basic means, the main benefits derive from the resultant changes in business procedures, processes and perspectives. E-procurement is made possible by the open standard of XML (Extensible Markup Language), a structured language that allows easy identification of data types in multiple formats and can be understood across all standard internet technologies. Adoption of XML will help organizations to integrate applications seamlessly and exchange information with trading partners. The e-procurement value chain consists of indent management, e-Tendering, e-Auctioning, vendor management, catalogue management, Purchase Order Integration, Order Status, Ship Notice, e-Invoicing, e-Payment, and contract management. Indent management is the workflow involved in the preparation of tenders. This part of the value chain is optional, with individual procuring departments defining their indenting process. In works procurement, administrative approval and technical sanction are obtained in electronic format. In goods procurement, indent generation activity is done online.

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E-COMMERCE

Electronic commerce, commonly known as E-commerce or ecommerce, is a type of industry where the buying and selling of products or services is conducted over electronic systems such as the Internet and other computer networks. Electronic commerce draws on technologies such as mobile commerce, electronic funds transfer, supply chain management, Internet marketing, online transaction processing, electronic data interchange (EDI), inventory management systems, and automated data collection systems. Modern electronic commerce typically uses the World Wide Web (www) at least at one point in the transaction’s life-cycle, although it may encompass a wider range of technologies such as e-mail, mobile devices, social media, and telephones as well. Electronic commerce is generally considered to be the sales aspect of e-business. It also consists of the exchange of data to facilitate the financing and payment aspects of business transactions. This is an effective and efficient way of communicating within an organization and one of the most effective and useful ways of conducting business. It is a Market entry strategy where the company may or may not have a physical presence. E-commerce can be divided into 7 subsections: E-tailing or “virtual storefronts” on websites with online catalogs, sometimes gathered into a “virtual mall Buying or selling on websites and/or online marketplaces The gathering and use of demographic data through web contacts and social media Electronic data interchange, the business-to-business exchange of data E-mail and fax and their use as media for reaching prospective and established customers (for example, with newsletters) Business-to-business buying and selling The security of business transactions

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Radio frequency identification (RFID)

RFID tags contain a chip and antenna that emit a signal, using energy from a radio frequency reader, which contains information about the container or its individual contents. RFID tags vary widely in memory, frequency, power source, and cost. Radio frequency identification offers significant advantages compared to the conventional optical scanning of barcodes Capturing goods inward information accurately and integrating this information with stock balances, contract management and payment system Recording stock movements, receipt, issues, transfer and location Translating issue requisitions into stock picking and packing tasks Maintaining stock balances and stock valuation Triggering automatic replenishment requisition s or orders Monitoring productivity and utilization Maintaining stock integrity, by recording and identifying damage, deterioration and losses of stock Producing management reports using any of the above data

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Benefits of I.T

Cost reduction and efficiency gains – these can be achieved by streamlining the supply process and freeing up supply staff to do more value-adding work. Data accessibility – quick and easy access to critical data in real time aids sound decision making, makes it easier to identify supply problems earlier and provides useful information for negotiations. Speedier communication – faster communication improves supply chain effectiveness and efficiency, especially with global suppliers. Faster turnaround may increase market share and lower inventories. Dedicate resources to strategic issues – more resources (staff and budgets) can be spent on strategic supply initiatives, and strategic and critical suppliers and projects because less time is spent on administrative ant tactical supply activities. Data accuracy – automation decreases errors, especially data entry errors. Benefits include lower inventories (safety stock) and stock outs, lower expediting costs, and improved customer satisfaction. Systems integration – integration across departments, suppliers and customers can provide accurate information on a timely basis to assist with production and materials planning and decision making. Monetary control – enterprise systems provide control over how and where money is spent.

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Methods of Disposal.

An accounting officer of the procuring entity may dispose assets by a method which may include the following: Transfer to another public entity or part of the public entity. Sale by public tender. Sale by public auction. Trade in. Dispose an item for another (exchange) Waste disposal management. Destruction, damping, burning, burring. As may be prescribed.

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