Blow to gov’t as High Court halts compulsory use of e-procurement system

The High Court has dealt the government a major blow after stopping the compulsory use of the contentious electronic Government Procurement System (e-GPS).

In a ruling on Monday, the court said public entities are free to receive and submit tender documents either electronically or manually, as long as they meet the requirements of the Public Procurement and Disposal Act.

“A conservatory order be and 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,” stated Justice Bahati Mwamuye at the Milimani Law Courts in Nairobi.

“A conservatory order be and is hereby issued requiring the Cabinet Secretary – National Treasury & Economic Planning AND the Public Procurement Regulatory Authority to accept 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,” the court added.

The e-GP system was part of the International Monetary Fund (IMF)-backed reforms to streamline government procurement and was originally set for roll-out in 2024.

With this year's rollout, Treasury Cabinet Secretary John Mbadi wants all government departments fully integrated into the system by this week to ensure the procurement process kicks off on time.

However, the initiative has been met with stiff contention from the National Assembly and the Council of Governors, as many have termed it ill-prepared.

Governors have warned that forcing counties to transition prematurely could disrupt service delivery, noting that only three out of 47 counties participated in the pilot phase, and all reported major failures.

President William Ruto has also maintained that his administration will not back down on enforcing the migration, censuring those opposing the move, accusing them of being beneficiaries of the old system.

"Procurement and accounting officers do not want this programme because they have been benefiting from the old system," Ruto said.

"No amount of blackmail and intimidation will force us to go back on the electronic procurement. Any government official who is not willing to use it can resign and go pursue other interests."