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The Star (Kenya) - - Politics -

HE spirit un­der­ly­ing the amend­ments to the Pub­lic Pro­cure­ment and Dis­posal Act was fan­tas­tic.

The amend­ment, brought in in 2014, ring-fenced 30 per cent of all pub­lic pro­cure­ment for the youth, women and other vul­ner­a­ble groups.

The in­ten­tion was good be­cause it sought to cure a mis­chief that has tra­di­tion­ally re­stricted govern­ment ten­ders to po­lit­i­cally cor­rect big boys with huge bal­ance sheets.

It sought to dis­trib­ute wealth to the marginalised, in the knowledge that mem­bers of such groups could not ef­fec­tively com­pete with the es­tab­lished boys’ net­works.

The dis­ad­van­taged groups are part of so­ci­ety and they de­serve to be spared from the un­fair com­pe­ti­tion posed by big, es­tab­lished en­ter­prises.

Thus, the amend­ment must be hailed be­cause it gave the up­starts a chance at star­tups, in­ex­pe­ri­enced busi­ness and small-time en­ter­prises got an op­por­tu­nity not to just try their hand at pub­lic ten­der­ing, but get some of the na­tional pie.

The prob­lem with this law, how­ever, is in its im­ple­men­ta­tion, which is poor – to say the least.

It is as if it is en­trench­ing the same mis­chief it was sup­posed to cure.

It has ended up pro­tect­ing big busi­ness with huge bal­ance sheets. We have seen big busi­ness owned by the pow­er­ful get­ting busi­ness un­der the guise of be­ing small and un­der the pa­tron­age of weak, vul­ner­a­ble groups.

It re­mains an im­por­tant law go­ing for­ward, but the best thing at this point is to ad­dress the pro­vi­sions that make it do ex­actly what it was sup­posed to negate.

First of all, there is need to have a proper and thor­ough check of all com­pa­nies that seek to do busi­ness with govern­ment. There should be checks on the fi­nan­cial port­fo­lio of ev­ery com­pany be­fore an award. If such port­fo­lio is in the hun­dreds of mil­lions of shillings, the com­pany should be dis­qual­i­fied be­cause that does not look as if it is a startup.

We also need to clas­sify vul­ner­a­ble groups to elim­i­nate this idea of ev­ery other wo­man and youth, in­clud­ing the very wealthy ones, claim­ing to be poor. We should de­fine ac­cu­rately what we mean by a youth and a wo­man. While the text of the law is clear that the ten­ders have been set out for women and youth, it is not all youth or women who qual­ify.

And it will be se­ri­ously out of or­der for a startup owned by an up­start or in­ex­pe­ri­enced per­son to bid for a Sh2 bil­lion ten­der!

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