ADVOKS GLOBAL · KENYA
Public Private Partnerships Act
44. Procurement design
Edition: 2022-12-31 · In force
44. Procurement design
(1)Where the Committee determines that the privately-initiated proposal may be procured in terms of section 43 (11)(a), the contracting authority shall, with the assistance of the Directorate, directly negotiate the project proposal with the private party, if—(a)the contracting authority determines that the proposal shall not generate market interest under competitive procurement;(b)the proposal is anchored on unique elements; or(c)direct negotiations are justified for any other reason in the public interest.(2)For the purposes of subsection (1), a contracting authority shall establish clear and realistic timelines for the conduct of the direct negotiations on the project:Provided that the contracting authority or authorities and the private party shall undertake to finalise the negotiations within six months.(3)Where the direct negotiations are not completed within six months, the negotiations shall be terminated.(4)Where the contracting authority receives more than one privately-initiated proposal with respect to the same matter and all proposals proceed to the project development stage, the contracting authority may utilize a restricted tendering procedure that limits competitive bidding to the private parties that submitted proposals.(5)Where a contracting authority determines that the project should be procured competitively because of market interest or the existence of equally competent alternative technologies that could deliver higher value for money to the Government, the contracting authority may elect to subject the project to open competitive tender under this Act:Provided that the contracting authority may determine whether or not to reimburse the costs incurred by the private party if—(a)the project is awarded to any other bidder;(b)the project achieves financial close;(c)the development costs do not exceed zero-point-five per cent of the estimated project cost; and(d)the development costs are borne by the successful bidder.(6)Where the contracting authority determines that an open tender is in the public interest, it shall establish a clear and realistic timeline for the preparation of tender documentation and the administration of the bidding process.(7)Subject to subsection(4), the contracting authority shall ensure equal bidding conditions when designing a procurement strategy under this section.Restricted Bidding