By Sam Alfan.
The Government’s push for the compulsory use Electronic Government Procurement System (e-GPS) has been dealt a blow after the High Court slammed brakes on its implementation.
High Court Judge Bahati Mwamuye suspended the decision of the Cabinet Secretary –National Treasury & Economic Planning AND the Public Procurement Regulatory Authority’s Circular No. E04/2025 which required the mandatory use of the Electronic Government Procurement System [e-GPS] by all Public Procurement Entities.
“A conservatory order is hereby issued requiring that all Public Procurement Entities shall comply with Section 77(1) of the Public Procurement and Disposal Act in that submission of tender documents shall be in writing and in either electronic or manual form; and such submissions shall comply with the other requirements of Section 77 generally and subsection (1) in particular,” ordered Judge Mwamuye.
The judge further issued an order requiring the government to continue accepting both electronic and manual submissions of tender documents and to process the same equally irrespective of their form of submission and provided that they meet the criteria set out in Section 77 of the Public Procurement and Disposal Act.
Council of Governors through Senate Speaker, Paul Kirui, Legal Consultancy Group limited and others moved to court, seeking to suspend the decision compelling government entities and county governments to implement e-procurement.
County governments have been opposed to the move arguing that there is no legal, regulatory or policy framework that anchors e-GP system.
The petitioners said Public Procurement & Regulatory Authority has not prepared the mandatory regulatory impact assessment report, which is a product of public participation and stakeholder consultation.
Further, they said the e-GP system violates Article 227 (2) of the Constitution because it does not allow for procurement through categories of preference in the allocation of contracts.
“Moreover, it does not contain modules for the protection or advancement of persons, categories of persons or groups previously disadvantaged by unfair competition or discrimination,” said the petition.
While acknowledging the importance of procurement, the petitioners said there was need for substantive regulations on e-procurement.
The said the regulations should, amongst other provide for the use of the traditional methods of procurement [open tendering), alternative methods [such as restricted tendering, and use of framework contracts], and emerging methods [such as competitive dialogue]- all through an e-procurement platform.
“The platform should also allow preference schemes and reservations for SMEs that Article 227 (2) of the Constitution requires joint bidding to enhance capacity. In addition, the platform should contain a module for electronic disposals,” court heard.
The petitioners said that despite the annulment of the circular on e-GP system, the major constitutional, legal and regulatory compliance gaps raised, the National Treasury has insisted that all procurement should be done through the system.
It is also their argument that the implementation of the e-GP system should have been done in phases.
Each phase, the petitioners said, should be preceded by adequate training and public participation.
Besides, a phased implementation will accommodate the hugely apparent transitional challenges.
They said there are more than 4,000 healthcare providers who give primary heath care to Kenyans and a majority of them are situated in rural areas where there is little or no connectivity at all.
“Yet, they are mandatorily required to procure essential supplies through e-GP system. Because of eccentric connectivity challenges they face, they are unable to procure essential supplies. This has far-reaching implications on the provisions of primary health care to Kenyans at the lower level. This has caused a medical crisis of monumental proportion,” court heard.
The petition stated that e-procurement was a timely idea since at a broad level, it promotes the United Nations Commission on International Trade Law (UNCITRAL’) law on procurement of goods and services.
However, the implementation of a complete of e-procurement should be done in compliance with the Constitution of Kenya and autochthonous connectivity challenges in the rural areas that county governments are responsible for.
“The system should not be hurriedly developed and quickly implemented. All the gaps, exigencies, and eccentric needs of all users, especially county government-should be taken on board,” court heard.
