DEMAND LETTER (SCOPE & PURPOSE, WITH SAMPLE )

 

1. INTRODUCTION:

· The demand letter is written after taking instructions from a client.

· Demand Letter: It is a formal notice demanding that the addressee perform a legal obligation, such as rectifying a problem, paying a sum of money or honouring a contractual commitment, on specific terms and within a specified time.

· No Court proceedings: The letter gives the recipient a chance to perform the obligation without being taken to Court.

2. SCOPE OF THE DEMAND LETTER:

· It is a letter sent to the person against whom a grievance is raised.

· It is sent before the commencement of the suit.

· The letter is intended to elicit a payment or compliance from the part of the prospective defendant.

· It serves to inform the adversary of a pending claim.

· The adversary is given a time-frame within which a response is required.

· It may be written by the person seeking redress, or by a legal representative on the person’s behalf.

· A copy is made and the original sent in a way that provides proof of delivery i.e., by: a) registered mail, or b) it can be served by a registered legal clerk.

3. PURPOSE OF A DEMAND LETTER:

· It is to afford both parties an opportunity to avoid embarking on unnecessary litigation or incurring additional costs, especially within the context of overburdened judiciary and the reality of a constricted economy.

· It serves as notice to the other party, that there is an issue against them.

4. DEMAND LETTER: WHETHER MANDATORY?

· In most types of legal proceedings, especially civil suits guided by the Civil Procedure Rules, 2010, a demand letter is mandatory.

· Order 2, Rule 10(3)(b) of the Civil Procedure Rules, 2010: Particulars of pleading: Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing then, the Court may, on such terms as it thinks just, order that party to serve on any other party where he alleges notice, particulars of the notice.

· Order 3, Rule 2(d) of the Civil Procedure Rules, 2010 provides that all suits filed including suits against the Government, except small claims, must be accompanied by copies of documents to be relied on at the trial including a demand letter before action.

· Rule 53, the Advocates Remuneration Order, 1962: No advocate’s costs where suit brought without notice except on special order: If the plaintiff in any action has not given the defendant notice of his intention to sue, and the defendant pays the amount claimed or found due at or before the first hearing, no advocate’s costs shall be allowed except on a special order of the Judge or Magistrate. Thus, where a demand letter is excluded, a party may not be able to claim for costs in the suit.

5. REASONS FOR MAKING FORMAL DEMAND:

a) To avoid incurring additional costs of suit should the claim be admitted by the other party.

b) To avoid suits that may be vexatious or brought out of malice.

c) To give notice of intention to right a wrong against a legal right.

6. CONTENTS OF A DEMAND LETTER:

a) Date.

b) Authority giving the advocate to act for the claimant i.e., “I HAVE BEEN INSTRUCTED BY …”

c) Summary of the matter in issue.

d) Demand for a specific relief or payment sought.

e) Deadline by which the matter must be settled.

f) It should be addressed to the person against whom the complaint is made, or the recipient’s lawyer, or if the person has an advocate to whom s/he has donated power, to such person holding the power of attorney.

g) The term “DEMAND LETTER” stated in the body of the letter to direct the recipient to act accordingly

h) Clear intimation that payment is required. It must be of a peremptory character and unconditional.26

i) Reasonable duration to respond i.e., 7 days, where debtor resides in the same town as advocate, 10 days, where he resides in a different town in Kenya and 15 days, where he resides outside East Africa.

j) Consequences of default or non-adherence to the demand of claim.

k) Name and signature of the advocate. It is a document that is chargeable under the Advocates (Remuneration) Order, 2009 and it therefore attracts the prohibition under Sections 34 and 35 of the Advocates Act, Cap 16, i.e., it should not to be drawn by an unqualified person, or remuneration thereof accepted by an unqualified person. In Singh v. Munshi Ram27 it was held that “signing in the name of the Firm is not sufficient and not safe. It may lay the demand letter open to challenge as not being given either by the party or by an advocate as his representative on his behalf.”

l) A threat that criminal proceedings would be initiated against the debtor in event of non-payment: A demand letter should not demand from the debtor the costs of the advocate giving notice.28 There is both a statutory and professional bar to making such a demand. Rule 11 of the Advocates (Practice) Rules, 1966 provides that no advocate may request in a letter of demand before action payment from any person other than his client of any costs chargeable by him to his client in respect of such demand before action, or in respect of professional services connected with the demand. But, if subsequent to the original letter of demand, the debtor requests to be allowed to make payment of demand sum by installments, and the terms are accepted, then it is permissible to add the advocate’s costs to the principal sum owing. This must be done at the time of accepting the proposal of payment by installments. This is permissible because fresh consideration is being given by the creditor, for adding those costs to the principal amount.

m) It should contain sufficient facts that would enable the other party to understand what the case is all about. In other words, it should be long enough to convey the material facts.

n) In a defamation case, it should set out the specific words complained of and the language used in the words.

· It is important to note that the demand letter will later become highly relevant in subsequent applications and hearings in the suit, as well as to an assessment of the conduct of parties.29 Express provisions is made in the Civil Procedure Rules, 2010 for a Court to order that particulars of any notice earlier pleaded to be supplied to the opposite party.

· The demand letter should be in consonance with the plaint. In Abdulla v. Esmail30 and Jared Benson Kangwana v. Attorney-General31 it was held that where the plaint is at variance with the demand letter, particulars in explanation must be given by the plaintiff.

· After receiving the response to a demand letter, an advocate should:

a) seek the client’s opinion on the next course of action;

b) advise the client on settling the matter out of Court;

c) advise the client on the economics of going to Court.

7. ‘WITHOUT PREJUDICE’ COMMUNICATION’:

· The legal phrase “Without Prejudice” should not be written in a Demand Letter. However, in Millicent Wambui v. Nairobi Botanica Gardening Limited,32 it was held that once the person who is being claimed against responds, an advocate should quote the legal phrase “Without Prejudice” to protect the sender with regard to the contents of the letter.

· Scope of protection: The protection goes only in so far as protecting the communication between parties that genuinely attempts to resolve the disputes between the parties. Thus, the doctrine protects admissions, concessions or offers made by parties in communication.

· The words ‘without prejudice’ impose upon the communication an exclusion of use against the party making the statement in subsequent Court proceedings.

· A party making a ‘without prejudice’ offer does so on the basis that they reserve the right to assert their original position, if the offer is rejected and litigation ensues. However, the ‘without prejudice’ communication could be admissible if:

a) the issue was whether or not the negotiation resulted in an agreed settlement or whether the communication was made at all;33

b) waiver by the parties;

c) there is need to prove that there was fraud or perjury;

d) there is need to explain some delay in proceedings, especially where one of the parties seeks to have the suit dismissed.

· How to show that communication is without prejudice: The words should be inserted at the top of the correspondence. However, there is no rule that requires the words to be at the top. It can also be inferred by the conduct and can be oral.

8. WHEN DEMAND LETTER WOULD NOT BE ADVISABLE:

a) Anton Pillar Order.34

b) Mareva Injunction.35

· Initial application for the above is usually made ex parte without notice to the defendant.

· Knowledge by defendant that the application is pending may defeat the very object which the plaintiff is trying to achieve, through dissipation of the subject matter of the suit, or removal of assets of the debtor from the Court’s jurisdiction, etc.

· A demand letter would thus adversely affect the element of surprise and the efficacy of the Court orders.

9. ILLUSTRATION:

MPOLE & SAMU COMPANY ADVOCATES MUTULA HALL, SECOND FLOOR,

P.O. BOX, 100356-00100, NAIROBI, KENYA

Tel: 0723321654 / 020-2586987

Email: mpole75@gmail.com

……………………………………………………………………………………………………………………...

Our Ref: DL/10/2017 Your Ref:

TBA

20th July 2017



“WITHOUT PREJUDICE”

TO

SAMUEL BITOO,

P.O. BOX 1289-00100, “BY REGISTERED

POST” NAIROBI.

Dear Sir,

DEMAND LETTER



We have been instructed by our client Mrs. Moses Limutu to address you as follows:



On 19th June 2017, our client painted your home for a contract price of Ksh.1,500,000. While you made the first two of the contract payments as agreed, you have delayed and/or refused to make the final payment of Ksh.500,000.


Our client has made repeated attempts to collect, but you have not come forward with the money.

Our instructions are to DEMAND from you, which we HEREBY DO, the immediate arrangements to make the final payment of Ksh.500,000 to my client.



TAKE NOTICE that unless you comply within the next 30 days from the date hereof, we shall commence proceedings without further reference to you whatsoever and at your risk as costs and other attendant consequences.



Yours faithfully,



MPOLE KAVITA

FOR: MPOLE & SAMU COMPANY ADVOCATES



Cc: Client

PUBLIC PROCUREMENT NOTES

 

TOPIC ONE

1.1 INTRODUCTION

 

Public procurement refers to procurement by public entities (institutions)

Procurement - the acquisition by purchase, rental, lease, hire purchase, license, tenancy, franchise, or by any other contractual means of any type of works, assets, services or goods including livestock or any combination and includes advisory, planning and processing in the supply chain system

Procuring Entities are any Public Entity making a procurement to which the Act and the Regulations apply. They include anybody that uses public assets in any form of contractual undertaking, including public private partnerships, companies owned by public entities to carry out functions otherwise performed by the public entities and anybody in which the Government has a controlling interest.

Public entities include;

·       The national government or any organ or department of the national government

·       A county government or any organ or department of a county government

·       The Judiciary and the courts

·       The Commissions established under the Constitution

·       The Independent Offices established under the Constitution

·       A state corporation within the meaning of the State Corporations Act

·       The Central Bank of Kenya established under the Constitution

·       A public school within the meaning of the Basic Education Act, 2013

·       A public university within the meaning of the Universities Act, 2012;

·       A city or urban area established under the Urban Areas and Cities Act, 2011;

·       A company owned by a public entity

·       A county service delivery coordination unit under the National Government Co-ordination Act, 2013

·       A constituency established under the Constitution;

·       A Kenyan diplomatic mission under the state

·       department responsible for foreign affairs;

·       A pension fund for a public entity;

·       A body that uses public assets in any form of contractual undertaking including public private partnership;

·       A body in which the national or county government has controlling interest;

·       A college or other educational institution maintained or assisted out of public funds;

 

Procuring agent- an organization which has been registered by the Authority, and competitively engaged by a procuring entity on its behalf, or an organization established under this Act, to carry out procurement or asset disposal activities

Goods- include raw materials, things in liquid or gas form, electricity and services that are incidental to the supply of the goods

-any item or package that can be procured through the purchase of any goods including perishables, equipment or software, off-the-self or made to design, that does not require any other works or services than necessary to ship, inspect, deliver, install and test the specifications, quality and functioning of the acquire good. Goods may include food, consumables such as stationery, fuel, computers, software, machinery, lab equipment

Works- means the construction, repair, renovation or demolition of buildings, roads or other structures and includes —

·       the installation of equipment and materials;

·       site preparation; and

·       Other incidental services.

Service- means any objects of procurement or disposal other than works and goods and includes professional, non-professional and commercial types of services as well as goods and works which incidental are to but not exceeding the value of those services;

Assets- In business and accounting, assets are everything owned by a person or company (all tangible and intangible property) that can be converted into cash. Since this includes intangible valuables such as stocks and accounts and notes receivable, whose cash value is not clear until they are sold, assets can also be defined as a probable future economic benefit obtained or controlled by a person or company as a result of a past transaction or event

Public property is property which is owned by a government or community, as opposed to private property, which is owned by non-government parties such as individuals, groups, or corporations. In many republican democracies, "public property" is said to be owned by the people as a commons. (In other types of state, such property is said to be owned by the "state" or the "crown".) Most public property is accessible to the general public, such as zoos, libraries, schools, and parks; some is reserved for restricted use, such as military bases and research laboratories

Assets - movable and immovable property, tangible and intangible, including immovable property, stores, equipment, land, buildings, animals, inventory, stock, natural resources like wildlife, intellectual rights vested in the state or proprietary rights

Public money- includes monetary resources appropriated to procuring entities through the budgetary process, as well as extra budgetary funds, including aid, grants and loans, put at the disposal of procuring entities by donors

Citizen- contractor - a person or a firm wholly owned and controlled by persons who are citizens of Kenya

Common-user items- goods, works or services that are usable by procuring entities across the board irrespective of type or category, and the items include office equipment, furniture, motor vehicles and stationery

Contract period- the period between contract signing and the end of the defects liability period

Design competition-a procurement procedure for obtaining competitive tenders for services which are creative in nature and which require that part of the services be carried as part of the tender to facilitate evaluation of the tenders and such services may include

architecture, landscaping, engineering, urban design projects, urban and regional planning, fine arts, interior design, marketing, advertising and graphic designs

Disposal-the divestiture of public assets, including intellectual and proprietary rights and goodwill and other rights of a procuring entity by any means including sale, rental, lease, franchise, auction or any combination however classified

Framework agreement- a pact between a procuring entity and a selected supplier (or suppliers) or contractor (or contractors) identified for a definite term to supply goods works or service whose quantities and delivery schedules are not definable or determinable at the beginning.

Framework contract- a pact between a procuring entity and a selected supplier (or suppliers) or contractor (or contractors) identified for a definite term to supply goods works or service whose quantities and deliveries are not definable or determinable at the beginning, with a commitment to order a minimum quantity of the required goods, works, or services

Fraudulent practice- includes a misrepresentation of fact in order to influence a procurement or disposal process or the exercise of a contract to the detriment of the procuring entity or the tenderer or the contractor, and includes collusive practices amongst tenderers prior to or after tender submission designed to establish tender prices at artificial non-competitive levels and to deprive the procuring entity of the benefits of free and open competition

Fiscal agency- a person or an organization, or trust company, that acts on behalf of the Government of Kenya in performing various financial duties, including assistance in the arrangement for issuance of international sovereign bonds, redemption of bonds or coupons, handle tax issues, replace lost or damaged securities

Pre-qualification- the procedure to identify and shortlist tenderers that are qualified, prior to invitation for tenders

Threshold -Reference is made by this term to the nominal amount above which a procurement method cannot be applied. It represents the highest estimated amount for applying a method, irrespective of any other considerations

Vendor (Bidder) - A private or parastatal operator that is competing in a procurement proceeding or is a contractor to a procuring entity

Obsolete stores- Obsolescence is the state of being which occurs when an object or service is no longer wanted even though it may still be in good working order. Obsolescence frequently occurs because a replacement has become available that is superior in one or more aspects.

Procurement Plan- The document prepared by each procuring entity annually to plan all procurement requirements necessary to perform the activity plan of the procuring entity. Procurement plan can include procurement for multi-annual delivery, multi-annual contracts, and next fiscal year delivery.

Retroactive Approvals -Procurement approvals given by the authority’s entity or person after the action approved has already taken place or has happened

Reserve Price- The minimum price at which a seller is willing to sell a good or service. Reservation prices are commonly used in auctions

Stakeholders- Any person or organization having an interest in the progress or outcomes of a Project or Programme– usually because they are either part of it or affected by what it delivers. The process of working out which stakeholders are most and least important to successful project delivery is called Stakeholder Analysis and the processes by which input from, and communications with, them are collectively controlled is called Stakeholder Management.

Reservations- exclusive preference to procure goods, works and services set aside to a defined target group of tenderers within a specified threshold or region

Threshold- Reference is made by this term to the nominal amount above which a procurement method cannot be applied. It represents the highest estimated amount for applying a method, irrespective of any other considerations.

Tender security-a guarantee required from tenderers by the procuring entity and provided to the procuring entity to secure the fulfillment of any obligation in the tender process and includes such arrangements as bank or insurance guarantees, surety bonds, standby letters of credit, cheques for which a bank is primarily liable, cash deposits, promissory notes and bills of exchange tender securing declaration, or other guarantees from institutions as may be prescribed

 

1.2 SCOPE AND NATURE OF PUBLIC SECTOR procurement

In a developing country like Kenya, the public procurement sector is often the largest domestic market. The public procurement system is the bridge between public procurements and the private sector providers. The government has the obligation of providing goods, works and services to meet a variety of citizen needs. These needs or requirements are obtained from either internal government organisations or external sources to the government which is the private sector through the procurement process. The necessity for public procurement law and also clearly defined procurement system arises from the fact that, unlike the private sector, public procurement is a business within a national and political system, whose pillars of strength are integrity, fairness, accountability, competition, transparency, national interest, promotion of local industry and economic development, in addition to economy. 

The procurement system affects many aspects of society including: -

v  The procuring entities, which have needs for material support to fulfil their mandated missions

v  The business community of actual or potential suppliers, contractors and consultants who satisfy the procuring entities identified needs

v  The general public which is more likely to feel satisfied when they know that expenditures by the procuring entities made through public procurement system realise value for money

v  The professional associations, academic entities and public interest groups, which have important concerns and views on how public  institutions are managed and perform and

v  Development partners

 

1.3 SIGNIFICANCE OF PUBLIC PROCUREMENT

The importance of procurement stems in part from its central role in budget implementation; in its role in achieving value for money through optimized resource application; and its roles in achieving and maintaining aggregate fiscal discipline through the implementation of a robust commitment control system.  The best intended and most competent budget plans are brought to nought, if there is disconnect between the budget planning process and the budget implementation process.

The mechanism by which the government delivers services to the public is by way of procurement. Whether this is the procurement of drugs and medical supplies and the distribution of such to the district hospitals, or the procurement of primary school textbooks and other instructional materials to meet the basic education programme objectives. The success in the delivery of services is predicated on the efficient allocation of resources and the timely delivery of such services. 

Procurement also provides important linkages to the Private Sector.  It can promote expansion of the private sector by the way of expanding commercial opportunities and emphasis on fair competition.

It further promotes balanced development through equitable distribution of resources in addition to creating employment. Economic development emanates from improved infrastructure and public utilities.it promotes production by stimulating demand in the economy.

 

1.4 GOALS OF THE GOVERNMENT AND PROCUREMENT OBJECTIVES

It is government policy that funds budgeted and approved by parliament for the purpose of procurement are spent on the intended purposes. This applies both to development and recurrent expenditures. It is also government policy to allow open competition for procurement without discrimination in a transparent, fair and accountable manner to ensure achievement of value for money in all procurement. Government also expects public procurement to contribute to the national economic growth and poverty reduction in line with the national development goals. Public procurement plays an important role in the Kenyan economy.  The total volume of public procurement in 2003-2004 was established at 3.64 billion USD or 9% of the GDP (Independent procurement review Kenya May 2005). Although the exact figure is not known 9% of the GDP is a very significant amount and can make a big impact to development if well used. Government policy, among other things, seeks to achieve economic growth and poverty reduction and also show tangible improvements in the delivery of services to the people of Kenya.  Each of these objectives shall only be achievable if public procurement in Kenya is substantially improved.  It warrants a point of focus of public sector activity

Public procurement seeks to achieve the following objectives:

v  To maximize economy and efficiency;                                                                                                    

v  To promote competition and ensure that competitors are treated fairly;

v  To promote the integrity and fairness of these procedures;

v  To increase transparency and accountability;

v  To increase public confidence in the procurement system; and

v  To facilitate the promotion of local industry and economic development.

 

 

1.5 DISTINCTIVE CHARACTERISTICS OF PUBLIC PROCUREMENT

Various differences exist between procurement in the public sector and the private/ business sector as outlined in the table below.

 

public procurement	private procurement
v Financed by public funds (main source is taxation)	v Financed by private funds (owners contributions, profits or private loans)
v Involves large scale expenditure with a lot of financial implications	v Relatively low expenditure
v Based on socio economic objectives	v commercial or profit motives
v A lot of bureaucracy /red tapes/lengthy procedures involved	v less complicated procedures involved
v Sourcing is predominantly competitive through open tendering	v Sourcing is predominantly through single sourcing
v Subject to various levels of accountability and probity	v Accountable to top management
v Subject to legal framework and regulations	v Subject only to internal policies
v Highly politicized- a lot of vested interests involved	v High levels of professionalism involved Immune from external interference

1.6 PRINCIPLES OF PUBLIC PROCUREMENT

 

The following procurement principles should guide the discussions and decisions pertaining to procurement practice in the public sector

·       The national values and principles provided for under the constitution

·       Equality and freedom from discrimination

·       Affirmative action programmes

·       Integrity

·       Principles of sound Public Finance Management;

·       The values and principles of public service

·       Separation of authority

·       Principles governing the procurement profession, ethics andinternational norms;

·       Maximization of value for money;

·       Promotion of local industry, sustainable development and protection of the environment;

·       Promotion of citizen contractors

·       Economy and efficiency in the delivery of service delivery of service

·       Transparency accountability and documentation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

TOPIC TWO

 

INTERNAL ORGANISATION OF PROCURING ENTITIES

 

2.1 Introduction

Procuring entities are required to establish various units and committees in accordance with the provisions of the Public Procurement and Asset Disposal Act (PPAD, 2015) and the Regulations for the purpose of carrying out procurement and assets disposal. These include:

2.2 The Accounting Officer

Accounting officer – refers to the head of the procuring entity or any other person appointed by the cabinet secretary for treasury to be the accounting officer. For a;

·       Government ministry- the principal secretary is the accounting officer

·       County Government- the Governor is the accounting officer

·       State corporation- the Chief Executive Officer (CEO) or Managing director is the accounting officer

·       Learning Institution- the principal is the accounting officer

·       Judiciary- the registrar is the accounting officer

The accounting officer is Responsible for:

·       Ensure that procurements of goods, works and services of the public entity are within approved budget

·       Constitute all procurement and asset disposal committees within a procuring entity in accordance with the Act;

·       Ensure procurement plans are prepared in conformity with the medium term fiscal framework and fiscal policy objectives and submit them to the National Treasury

·       Ensure proper documentation of procurement proceedings and safe custody of all procurement records in accordance with the Act;

·       Ensure compliance with the Public Finance Management Act,

·       Approve and sign all contracts of the procuring entity

·       Ensure the procurement and asset disposal process of the public entity shall comply with the Act Ensure that the procurement processes are handled by different professional offices in respect of procurements, initiation, processing and receipt of goods, works and services;

·       Submit to the Authority the part in its procurement plan demonstrating application of preference and reservations schemes in relation to the procurement budget within sixty days after commencement of the financial year

·       Ensure compliance with any other responsibilities assigned by this Act or any other Act of Parliament or as may be prescribed in Regulations.

 

2.3 The Tender Committee

The Tender Committee in the Procuring Entity has a wide range of functions among which are:

§  Reviewing, verifying and ascertaining that all procurement and disposals have been undertaken in accordance with the Act and Regulations;

§  Approving the selection of the successful tender or proposal;

§  Awarding procurement contracts;

§  Ensuring that funds are available for the procurement under consideration;

§  Ensuring that the Procuring Entity does not pay in excess of prevailing market prices;

§  Reviewing and approving the procurement method to be used;

§  Approving the list of tenderers in case of Restricted Tendering, prequalified persons and list of persons to be given request for proposals;

§  Approving amendments of contracts previously awarded by the Tender Committee; and

§  Reviewing the quarterly reports on quotations that have been awarded by the Procurement Committee.

2.4 The Procurement Unit

Procurement “Unit or function” means a division within a procuring entity staffed with procurement professionals who are officially concerned with managing the procurement and asset disposal process and reports directly to the head of procuring entity functionally and administratively;

The Procurement Units in the Procuring Entities should be established with qualified and experienced procurement professionals as prescribed under section 26(9) of the Act. The functions of the Procurement Unit include:

·       Maintaining and updating annually the standing lists of registered tenderers;

·       Preparing, publishing and distributing procurement and disposal opportunities, including invitations to tender, pre-qualification documents and invitations for expressions of interest;

·       Coordinating the receiving and opening of tender documents;

·       Maintaining procurement and disposal records;

·       Short listing pre-qualified tenderers for approval;

·       Proposing membership of the Evaluation Committee to the Accounting Officer;

·       Co-ordinating evaluation of tenders, quotations and proposals;

·       Preparing notices of awards, rejection letters, contract documents and variations of contracts;

·       Acting as the secretariat to the tender, procurement and disposal committees; and

·       Preparing consolidated procurement and disposal plans.

2.5 The User Departments

“User department” means the unit of a procuring entity that requisitions the goods, works or services being procured. User departments are responsible for:

·       Initiating procurement and disposal requirements and forwarding them to the Procurement Unit;

·       Participating in the evaluation of tenders, proposals or quotations;

·       Reporting departures from the terms and conditions of the contract;

·       Giving details of any required variations to the Procurement Unit;

·       Maintaining records of contract management;

·       Endorsing goods, works and services received notes;

·       Preparing the technical specifications;

·       Assisting in preparation of procurement and disposal plans; and

·       Making clarifications on tenders, requests for quotations and any other matter as may be required.

2.6 The Evaluation committee

An Accounting officer shall ensure that an ad hoc evaluation committee is established in accordance with the Act and Regulations from within the members of staff, with the relevant expertise. In is a State Department or a County Department, the Accounting officer shall do so in consultation with the Cabinet Secretary or the County Executive Committee member responsible for that entity. It shall consist of between three and five members appointed on a rotational basis comprising

·       Heads of user department

·       Heads of two other departments or their representatives and where necessary,

·       Procured consultants or professionals, who shall advise on the evaluation of the tender documents and give a recommendation on the same to the committee within a reasonable time

·       Where technical expertise is required from outside the organization, such expertise may be obtained from other procuring entities or procured to join the committee, on recommendation, in writing, by the head of the procurement function, and the committee shall be appointed by the accounting officer, in writing.

·       The person in charge of the procurement function as its secretary

 Functions of the evaluation committee:

·       Carryout the technical evaluation and financial aspects of procurement

·       Carryout negotiation of the procurement process

·       Evaluation of bids, proposals for prequalification, registration lists, Expression of Interest

·       Adopt a process that shall ensure the evaluation process utilized adheres to Articles 201(d) and

·       Prepare a report to the Tender Committee which includes;

a)     An analysis of the tenders received together with minutes of the tender opening

b)    The results of the preliminary evaluation with reasons why any tenders were rejected

c)     Scores awarded by each evaluator for each tender

d)    A summary of the relative strengths and weaknesses of each tender

e)     Final ratings given to each tender

f)     Recommendation to award the tender to the lowest evaluated tenderer or, under the Request for proposals procurement method, to the person who submitted the proposal with the highest total score.

 

2.7 Inspection and Acceptance Committee

 An accounting officer of a procuring entity may establish an ad hoc committee known as the inspection and acceptance committee composed of a chairman and at least two other members appointed by the accounting officer or the head of the procuring entity on the recommendation of the procuring unit.

Responsibilities of the inspection and acceptance committee

·       The inspection and acceptance committee shall immediately after the delivery of the goods, works or services—

·       Inspect and where necessary, test the goods received;

·       Inspect and review the goods, works or services in order to ensure compliance with the terms and specifications of the contract;

·       Accept or reject, on behalf of the procuring entity, the delivered goods, works or services.

·       Ensure that the correct quantity of the goods is received;

·       Ensure that the goods, works or services meet the technical standards defined in the contract;

·       Ensure that the goods, works or services have been delivered or completed on time, or that any delay has been noted

·       Ensure that all required manuals or documentation has been received

·       Issue interim or completion certificates or goods received notes, as appropriate and in accordance with the contract.