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Columnists

Compliance with law key to success of public projects

Project management
Project management is like juggling three balls - time, cost and quality. FILE PHOTO | NMG 

Kenya is replete with notoriety of public projects being false-starts, cost overruns on their budgets and delayed timelines. This state of affairs can be easily attributed to poor project identification and contract implementation. This has been revealed in the Auditor-General's Reports on state entities for the last three years.

Indeed, project management is like juggling three balls - time, cost and quality. All these aspects woven together are essential for effective project delivery.

In recognition of and to address this challenge the Public Procurement and Asset Disposal Act, 2015 has scaled up project implementation and contracts management to commendable levels.

Most importantly, Section 151 provides that for every complex and specialised procurement contract, the chief executive officer of the public entity shall appoint a contract implementation team. The team shall be responsible for among other functions: - monitoring the performance of the contractor, to ensure that all delivery or performance obligations are met or appropriate action taken by the public entity in the event of obligations not being met.

Section 53 (2) and (8) provides that public entities shall prepare annual procurement plans and that procurement proceedings shall not be commenced unless there are sufficient funds approved and budgeted for to meet the obligations of any resultant contract. Failure to do so is an offence under Section 53 (9).

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This provision ensures that any public entity shall only engage in a project with proof of availability of funds and that termination of contracts for lack of funds is an exception rather than the norm like it has been the case in the past.

Section 83 provides for due diligence by the evaluation committee on the lowest bidder to confirm and verify the qualifications and ability to perform after the evaluation but before contract award.

In taming the trend whereby contractors would delay, fail to complete, abandon or compromise on the quality of goods, works or services subject of procurement, Sections 142 - 145 provide that contractors shall provide performance security before any contract sign-off. This quite often shall be in the form of an on-demand bank guarantees. This requirement helps secure and enforce contract performance by the contractors and/or consultants.

In addressing challenges where payments would be made to contractors in advance, divert the same to other extraneous activities and therefore fail to meet performance obligations, sections 146 - 148 provide that advance payment shall not be made before an executed contract is in place.

The sections further limit any advance payment to 20 percent of the contract price. Importantly, the advance payment shall not be used for any purpose other than for which it was issued and when used to the contrary it shall be recovered as a debt by seizing the entire security or part of it.

As relates to quality assurance, Section 48 provides for appointment of an inspection and acceptance committee.

The writer is Advocate of the High Court of Kenya.

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