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!