30/07/2024
Non- Refundable Tender Fees are illegal
A spot check of most tenders published online and in print media reveals that the majority require interested bidders to pay a non-refundable tender fee ostensibly to obtain tender documents. This will range between Kshs 1000 and Kshs 5,000.
In an economy where most Small and Medium-Sized Enterprises (SMEs) are struggling to get work amidst the COVID-19 pandemic, such a fee, as a pre-qualification, is an expense that SMEs can do without. Today, an SME set up to supply printing paper will pay Kshs 30,000 for ten tender documents at Kshs 3,000 each, an ‘investment’ that would go to waste given the tendering bodies that levy these fees are not accountable to the SME. For public bodies, the Public Procurement and Asset Disposal Act (the Act) obligates the procuring agency, to provide procurement documents to the tenderers. Whilst Section 70(5) allows the procuring agency to charge a fee for documents in the tender, it is important to note that the Act and its Regulations give guidelines on levying of charges. A fee of Kshs 1,000 is set as the maximum limit for hard copies of tender documents.
Regulations 68(8) and 55(12) forbid charging fees for documents obtained electronically, invitations for expression of interest, registration of suppliers (paneling), or prequalification documents. Thus, public entities that charge for documents posted on their websites commit an illegality. Further, where the entity charges fees for the documents, suppliers have a right to examine them before paying.