Improving Open Contracting Processes (KE0036)

Brief Description of the Commitment

The Commitment seeks to improve access, availability, and use of up-to-date accurate procurement data through the implementation of an interoperable end-to-end Electronic Government Procurement (eGP) system adopting the Open Contracting Data Standard (OCDS), to cover all stages of public procurement in Kenya.

Problem Definition

Value for money in procurement is crucial, as it ensures efficiency in government spending which results in high-quality services to citizens. Additionally, equitable procurement remains a challenge, with women, youth, and people with disabilities having limited say in procurement processes and also limited participation in applying for tendering opportunities. Despite various anti-corruption efforts and reforms in Kenya, corruption remains a pervasive and deeply entrenched issue, posing a multifaceted challenge to the nation's socio-economic development, governance, and the well-being of citizens. Notably, public contracting has been identified as the government activity most vulnerable to wastefulness, mismanagement, inefficiency, and corruption. Additionally, the Kenya Kwanza manifesto prioritizes granting independence to institutions involved in the fight against corruption, thus ending the weaponization and politicization of their work.

What are the causes of the problem?

1. There is a lack of inclusive processes for citizens to provide feedback on the quality of implementation. This leads to procurement entities often not basing their decisions on past supplier performance, beneficiary input, or expert advice from the private sector.
2. Private sector companies are enticed by corruption due to their profitability. Corruption has become a lucrative way for these entities to secure contracts and gain an unfair advantage in the procurement process.
3. Citizens have grown weary of engaging with the government on corruption issues because they perceive limited action being taken on reported cases. This sense of fatigue and loss of trust has led to decreased vigilance and reduced efforts to hold the government accountable.
4. Opaque Procurement Systems as result of lack of transparency and clarity in procurement processes, as well as the rules and procedures are not clearly understood.
5. Procurement entities exhibit low levels of compliance to publish procurement details on the Public Procurement Information Portal
6. Procurement entities lack access to critical data for analytics within the current procurement systems.
7. Civil society organizations (CSOs) and individuals lack the necessary evidence and raw data to hold the government accountable for corrupt practices and quality service delivery.
8. Women, youth, and persons with disabilities (PWDs) have limited participation and influence in procurement processes. This lack of inclusion perpetuates corruption, affects implementation quality, and undermines the principles of fairness and equity in public contracting.

Commitment Description

Several significant actions have been taken to promote open contracting and enhance transparency in public procurement. Over the years, Kenya has shown a commitment to this cause through various initiatives. The Public Procurement and Disposal Act (PPDA) has been instrumental in setting the legal framework for procurement practices. Additionally, the implementation of past Open Government Partnership (OGP) National Action Plans (NAPs) which incorporated public procurement transparency and accountability. The government has also invested in technology by developing the Procurement of an Electronic Government Procurement (eGP) system to streamline procurement processes. The Public Procurement Regulatory Authority (PPRA) has conducted extensive training programs for procurement entities, enhancing their capacity in adhering to best practices and publication of procurement data. Furthermore, the development of the Public Procurement Information Portal (PPIP) and the active involvement of the media in decoding procurement laws and exposing corruption cases have played pivotal roles in advancing transparency. Measures such as the Whistleblowing Bill have been introduced to protect and encourage individuals who report corruption in procurement. The Access to Government Procurement Opportunities (AGPO) policy and platform has been developed to promote opportunities for marginalized groups, and the PPRA has taken steps to publish AGPO data, furthering transparency and inclusivity in public procurement processes. These collective efforts demonstrate Kenya's commitment to advancing open contracting and improving the integrity of its procurement system.

Proposed Solutions

The NAP (V) envisions to:

1. Ease availability, access and use of data, and compliance through the implementation of an open and transparent e-procurement system, and tender alert system
2. Implement a policy framework that standardizes and governs procurement system requirements, data publication, implementation and rollout in Kenya.
3. Promote meaningful public participation through whistleblower protection and improving feedback mechanisms,
4. Strengthening youth, women, and people with disabilities understanding and participation in procurement processes. Including implementation monitoring to ensure quality service delivery and the private sector participating in tendering processes.

Desired Results

1. AGPO awareness programs resourced and rolled out across the country
2. Clear and straightforward procurement processes and guidelines targeted at AGPO
3. Incorporate whistleblower protection in the PPDA
4. Strengthen procurement feedback mechanisms at national and county level
5. The new end to end Electronic Government Procurement (eGP) system adopts the Open Contracting Data Standard (OCDS), to cover all stages of public procurement in Kenya.
6. Counties use and access new end to end e-government system and integrate their procurement analytical tools the e-government system

Commitment Analysis

1. How will the commitment promote transparency? The Electronic Government Procurement (eGP) system publishing the data across all procurement processes in a downloadable and editable format such as OCDS will improve access and availability to up-to-date data that will be published in a free to use web portal immediately after procurement processes take place.

2. How will commitment help foster accountability? Implement a policy framework that standardizes and governs procurement system requirements, data publication, implementation and rollout in Kenya. This will ensure citizens and governments have a framework to monitor procurement transparency in Kenya

3. How will commitment improve citizen participation in defining, implementing, and monitoring solutions? 1. Promote meaningful public participation through whistleblower protection and improving feedback mechanisms 2. Strengthening youth, women, and people with disabilities understanding and participation in procurement processes. Including implementation monitoring to ensure quality service delivery and the private sector participating in tendering processes.

Commitment Planning (Milestones | Expected Outputs | Expected Completion Date)

1. The new end to end e-government procurement system has a public portal publishing all procurement process data | Data across all procurement processes taking place in e-GP is accessible in various downloadable formats such OCDS, CSV, PDF etc. | December 2026

2.The new end to end e-government procurement system is interoperable with the PPIP and other procurement entity publishing platforms at both the national and county levels | Open APIs for interoperability with other procuring entity platforms A dedicated API for interoperability with PPIP that host historical procurement data | October 2026

3.Develop a draft national policy to standardize and govern procurement system requirements, data publication, implementation and roll out in Kenya | Develop multi stakeholder group that will support the drafting of the policy Final Policy that outlines the requirements and standards for a procurement system policy | January 2026

4.Improve convenience of accessing procurement opportunities on PPIP and Egp | Public (especially SIGs) subscribe and access procurement opportunities through email and SMS for private sector | December 2025

5. PPDA 2015 Amended to provide for protection of whistleblowers. | The PPDA offers protective and easily accessible anonymous whistleblowing channels | June 2025

6. Awareness creation to special interest groups (women, youth and persons with disabilities) on AGPO processes | AGPO awareness programs resourced and rolled out across the country, to enhance youth, women and PWDs’ understanding of How to access AGPO opportunities, application process, key requirements and existing information platforms | December 2024

7. Publish detailed debarment data: Including background information and other legal entities where an individual associated with the debarred firm has controlling interest | Where an individual has controlling interest in a debarred company, any other associated companies where the same individual has controlling interest will also be debarred and published | January 2026

8. Develop a mechanism to ensure that public feedback through contract implementation is documented and meaningfully channeled into decision-making | Contract details section in the eGP system provides a public feedback function | December 2025

Action Plan Review

Commitment 5. Open Contracting

Commitment 5: Open Contracting
[Public Procurement Regulatory Authority, Development Gateway.]

For a complete description, see Commitment 5 in Kenya’s 2023–2027 Action Plan.

Context and objectives

Despite efforts over the last decade, corruption in public procurement remains a significant drain on public finances in Kenya. ^[78] Both government and civil society recognise the need to increase transparency and accountability in public procurement processes to reduce fraud and corruption. Reformers have sought to enact open contracting across previous action plans.

Kenya’s 2010 Constitution and 2015 Public Procurement and Asset Disposal Act provide for a procurement and asset disposal system that is fair, transparent, and cost-effective. Kenya launched a Public Procurement Information Portal (PPIP) [79] and required that all procurement takes place on the end-to-end e-Government Procurement System (e-GP). However, gaps remain including in the legislative, regulatory, and institutional frameworks, human resource development, and public procurement operations, integrity, transparency, and accountability. ^[80] The divided governance of public procurement in Kenya could continue to be a challenge to harmonising reform efforts. Successful implementation will require coordination between the National Treasury and Public Procurement Regulatory Authority (PPRA). [81]

This commitment aims to increase transparency of procurement information, public accountability over the implementation of contracts, and inclusion of special interest groups in procurement opportunities. The National Treasury and Local Development Research Institute (LDRI) commit to forming a multi-stakeholder group to draft a policy to standardise procurement processes, systems, and data publication (Milestone 3). Notably, the government commits to amending the 2015 Public Procurement and Asset Disposal Act to provide protection and channels for whistleblowers (Milestone 5) as the whistleblower protection bill stalls in parliament.

Regarding transparency and inclusion, this commitment aims to ensure that e-GP publishes data in line with the Open Contracting Data Standard (OCDS) covering the length of the procurement process (Milestone 1). It also aims to ensure the interoperability of data on e-GP and PPIP (Milestone 2) and public availability of information on individuals debarred from public procurement and their associated companies (Milestone 7). Activities include ensuring that procurement opportunities are accessible on both portals (Milestone 4) and raising awareness of special interest groups such as youth and women on procurement opportunities (Milestone 6). The PPRA also commits to enabling the public to submit feedback on contract implementation on the e-GP system and to ensure that the government acts on this information (Milestone 8).

Potential for results: Modest

This commitment contains ambitious activities to strengthen transparency and accountability of Kenya’s public procurement ecosystem through legal and technical reforms. Implementation of many milestones in this commitment hinges on an operational e-GP system, which has taken longer than expected. Challenges that have limited implementation of previous open contracting commitments in Kenya remain, such as coordinating various government entities and partners as well as limited capacity and resources within government to carry out open contracting reforms. [82] While this commitment primarily focuses on transparency and accountability in procurement at the national level, Kenyan OGP Local Program members are also pursuing open contracting commitments at the county level, where a significant portion of public contracting takes place. [83]

This commitment seeks to strengthen transparency of procurement data on the e-GP and PPIP. The National Treasury has led the rollout of the e-GP platform, intended to digitise procurement process, with support from the World Bank. [84] The system enables online vendor registration, marketplace for government tenders, and bid submission which could improve accessibility of opportunities and efficiency of process at lower costs. [85] The initial rollout plan for 1 July 2024 was delayed [86] and, as of August 2024, the e-GP system had undergone user testing in 12 ministries, departments, agencies, and counties. The piloting phase is intended to conclude at the end of 2024, after which all ministries, departments, agencies, and executive offices of county governments will be required to use the system for procurement. County assemblies and agencies will be expected to follow in a second rollout phase. [87] PPRA employees have received training on the system. Whereas the e-GP portal publishes information on procurement transactions, PPIP publishes final information on the contract awarded and winning bidders. [88] The Head of Africa of the Open Contracting Partnership (OCP) noted that PPRA was receiving technical and financial assistance to improve PPIP, including compliance with OCDS, in the absence of a fully operational e-GP platform. [89]

The PPRA and National Treasury aim to ensure procurement data is published according to the OCDS on the e-GP platform (Milestone 1). OCDS defines a common data model to disclose contracting data and documents throughout the procurement process. [90] Implementing OCDS has been delayed under previous Kenyan action plans while the e-GP system was prioritised. [91] As that e-GP is scheduled for full implementation in 2025, this commitment aims to ensure interoperable (Milestone 2), comprehensive, and useable data on e-GP, PPIP, and any other procuring entity platforms. A centralised and transparent platform promises to strengthen public accountability and reduce the likelihood of fraud and corruption. ^[92]

While some procurement information is available on PPIP (e.g., awarded contracts), it is incomplete. There is limited compliance with disclosure requirements, including the legal mandate to publish information on beneficial owners for procuring companies. [93] By ensuring that e-GP is interoperable with the PPIP and other procurement platforms at the national and county levels, vast amounts of data can be generated and analysed to identify patterns, make better-informed decisions, identify cost-saving opportunities, and improve efficiency. ^[94] This commitment foresees that e-GP will also include a mechanism for the public to submit feedback on contract implementation (milestone 8). This channel is expected to be like that available on the PPRA portal. A representative from Development Gateway noted that it will be important to avoid duplication of efforts and multiple platforms serving the same purpose. [95]

Coordination challenges and funding shortfalls have inhibited past commitments. [96] As such, coordination among necessary government bodies, civil society, and funding partners will be key to achieving open contracting objectives. The political context after the August 2022 elections and internal government resistance to anti-corruption efforts have also been noted as obstacles. ^[97] Kenya’s OGP open contracting cluster has offered a space for collaboration, where the PPRA and Development Gateway have sought to maintain momentum and a multi-stakeholder approach for open contracting reforms. Engagement with the National Treasury will be critical for successful implementation, given their leadership on e-GP rollout. ^[98] This presents an opportunity to strengthen the National Treasury’s participation in the OGP process given their central role in open contracting. As of July 2024, key partners including Open Ownership, PPRA, Open Contracting Partnership, and the World Bank had been discussing funding and technical support for open contracting and beneficial ownership transparency efforts, [99] which suggests that resources will be available for implementing this commitment, although coordination to overcome political obstacles remains an open question.

This commitment aims to form a multistakeholder group to draft a national policy on procurement system requirements, data publication, implementation and roll out in Kenya (milestone 3). This effort will be led by the National Treasury and civil society organisation Local Development Research Institute and aims to be completed by halfway through the implementation period in January 2026.

Milestone 5 to amend the PPDA to protect and create channels for whistleblowers is one of the more ambitious and challenging elements of this commitment. The long-sought aim to adopt the Whistleblower Protection Bill has stalled, in part due to the bill’s budgetary implications. Implementers included a milestone to amend the PPDA as an alternative to passing the bill. However, members of parliament are hesitant to amend PPDA as it could open the possibility of more amendments. A representative from Development Gateway noted that the chances of amending PPDA for whistleblower protections seemed slim. They suggested that CSOs working on whistleblower protection could be brought into the process to advocate for amending PPDA. [100] The limited prospects that whistleblower protections will be enshrined in law decreases this commitment’s potential for results. However, if achieved through either an amendment to PPDA or passage of the Whistleblower Protection Bill, this commitment could achieve notable results.

The commitment also seeks to ensure e-GP aligns with requirements under Kenya’s Access to Government Procurement Opportunities (AGPO) program. The AGPO program reserves up to 30% of procurement contracts for women, youth, and persons with disability. [101] Planned activities include targeted outreach, awareness raising, and ensuring accessibility to procurement opportunities on e-GP to special interest groups (Milestones 4 and 6). PPRA notes that the e-GP system includes accommodations for persons with disabilities. However, it will necessarily exclude those without internet access. [102]

Opportunities, challenges, and recommendations during implementation

Coordination among PPDA, the National Treasury, and civil society and international partners will be central to advancing implementation. Likewise, continued financial and technical support from organisations such as the World Bank, Development Gateway, and Open Contracting Partnership can address government funding and capacity shortcomings. The more ambitious and political aspects of this commitment, such as enshrining whistleblower protections, will take strategizing and collaboration with potential allies outside the open contracting sector. This action plan’s four-year timeframe gives Kenya a more realistic window to bring about observable open contracting results than previous action plans. There is also significant potential to strengthen government accountability in continuing to integrate beneficial ownership transparency and open contracting reforms. At midpoint, implementers can review progress and strategize for the remainder of the implementation period. The midpoint refresh will offer an opportunity to expand or amend the commitment as appropriate to reflect additional aims and contextual developments.