[kictanet] Software procurement in kenya
Gakuru Alex
alexgakuru.lists at gmail.com
Fri Sep 12 11:59:59 EAT 2008
Dear James,
Considering that I conducted the research, I am compelled to react on
this issue.
We had hoped for KIPPRA's representation at the LPA presentation thus
had allocated a slot for your institution's representative. That would
have contributed immensely to the candid discussions we had and our
common search for the way forward.
I find, shared response either ignorant of clearly stated clauses on
the Act or a very poor excuse to hide behind "regulations" (without
specifying the clause). Regulations which incidentally make reference
nowhere negating provisions under Section 34.
And it would be dangerous to suggest that the Act's implementational
regulations would ever override an Act of Parliament (and in such a
fundamental way)
Citing Public Procurement and Disposal Act, 2005 and The Public
Procurement and Disposal Regulations 2006 (248 KB) both downloadable
from <http://www.ppoa.go.ke/index.php?option=content&task=view&id=24>
( Appreciation to PPOA for Access to these documents)
---snip---
Specific 34.(1) The procuring entity shall prepare specific
requirements.
requirements relating to the goods, works or services
being procured that are clear, that give a correct and
complete description of what is to be procured and that
allow for fair and open competition among those who
may wish to participate in the procurement proceedings.
(2) The specific requirements shall include all the
procuring entity's technical requirements with respect to
the goods, works or services being procured.
(3) The technical requirements shall, where
appropriate —
(a) relate to performance rather than to design or
descriptive characteristics; and
(b) be based on national or international
standards.
(4) The technical requirements shall not refer to a
particular trademark, name, patent, design, type,
producer or service provider or to a specific origin
unless —
(a) there is no other sufficiently precise or
intelligible way of describing the requirements;
and
(b) the requirements allow equivalents to what is
referred to.
--snip--
In short, we agree there has been a problem on the implementation. But
instead of seeking refuge in "unsafe" havens or pointing fingers, we
are now collectively (with PPOA and other stakeholders) addressing
"How-To" (not "whether-to") fully comply with the law when procuring
public software.
Lastly, if proposed Freedom of Information Law promises this
<http://www.ppoa.go.ke/index.php?option=com_wrapper&Itemid=47>, then I
cannot wait for its passage by parliament!
Regards,
Alex Gakuru,
Consultant Researcher,
Public Procurement on Software
Linux professional Association.
On Fri, Sep 12, 2008 at 11:07 AM, James Kagwe <jkagwe at kippra.or.ke> wrote:
> I got the below from our PO and thought it fair to share.
>
>
>
> ________________________________
>
> From: Peter Munene
> Sent: Friday, September 12, 2008 9:38 AM
> To: James Kagwe
> Subject: RE: [kictanet] Software procurement in kenya
>
>
>
> Thanks for your comments on whether you can procure using brand name or not.
> However seem to miss the point! Please refer to "The Public Procurement and
> Disposal Act, 2005" Section 34 paragraph 4 (a) and (b). Using brand name is
> not breaking the law (am assuming we are talking about Kenya law) as long as
> you follow the prescribed regulations in the Act. Thanks and study the Act!
>
>
>
> James,
>
> You may forward my comments to the origin.
>
>
>
> ________________________________
>
> From: James Kagwe
> Sent: Friday, September 12, 2008 8:46 AM
> To: Peter Munene
> Subject: FW: [kictanet] Software procurement in kenya
>
>
>
> This might be of interest to you
>
>
>
> ________________________________
>
>
>
> I had a chance to attend the presentations by Alex and Evans to PPOA and I
> think they did a very good job articulating issues faced in Government ICT
> Procurement. In addition to procuring agents not following the law (e.g.
> mentioning brands in tenders) it also appears that they are not aware of
> International Best Practices such as those advocated by WITSA
> (http://www.witsa.org/papers/BestPracticesWhitePaper-final.pdf). Those best
> practices are meant to ensure competition is not precluded. Maybe these IBPs
> require to be incorporated into the PPOA regulations. I reproduce a portion
> of the IBPs below:
>
> The Government ICT Procurement Process
>
>
>
> The procurement process consists of a number of steps:
>
> Needs Definition / Requirements
> Request for Information (RFI)
> Request for Comments
> Request for Proposal
> Proposal
> Live Test and Demonstration
> Best and Final Offer
> Award
> Protest Procedures
>
>
>
> Depending on the size and complexity of the procurement, a given acquisition
> may contain some or all of these stages.
>
>
>
> Need
>
>
>
> The acquisition process begins with the recognition of a need by a
> governmental department for a capability or a service. This need must then
> be translated into a set of requirements so that eventually a Request for
> Proposal (RFP) may be issued. The scope of this effort is generally
> invisible to potential bidders.
>
>
>
> Request for Information (RFI)
>
>
>
> During this phase of the procurement, government actively pursues business
> input in the form of recommendations and presentations. The input is
> generally solicited by the means of an RFI that describes the government's
> needs and perceived requirements. If done in a manner other than an RFI,
> governments should be careful that their solicitation does not have the
> effect of precluding competition. Business thus has the opportunity to
> better understand the requirements and the true needs of the end user.
> During this stage, communication is open, and both industry and the
> government are exploring needs and possible relevant technologies. If it
> has not already done so, business is also beginning to assess potential
> partners.
>
>
>
>
>
>
>
> Request for Comments (RFC)
>
>
>
> An RFC on a draft Request for Proposals (RFP) is generally the next document
> that the government issues. It is based on the input that the government
> has gathered during the RFI stage and is based on a refinement of their
> needs and available technologies. Again, governments should ensure that
> the RFC is issued in an open and transparent manner so that it does not have
> the effect of precluding competition. In addition, if governments use a
> contractor to help in writing an RFC, or later the actual RFP, that
> contractor should be precluded from bidding either alone or as a partner in
> the actual procurement,
>
>
>
> Ideally the RFC is a complete document outlining not only the agency's
> needs but also the proposed terms and conditions for the contract. While
> it takes considerable effort for the governmental entity to produce a
> complete document at this stage, it ultimately saves considerable time and
> effort for both parties later on. In addition, a complete document sends a
> signal to industry that the government is serious and that the acquisition
> is for "real". Unavailability of information at this stage, and the
> inability to comment on it, often causes misunderstandings and delay later
> on in the procurement process.
>
>
>
> Request for Proposal (RFP)
>
>
>
> Ideally, the acquiring governmental entity will have indicated in the RFC a
> proposed schedule for the release of the RFP, and they will adhere to it.
> As the proposed release date draws near, potential bidders will firm up
> bidding partners and will begin to staff their proposal efforts. In order
> to keep ultimate costs down, government needs to adhere to their proposed
> timeframes because delays and/or extensions at this point become quite
> expensive for industry, and those costs are ultimately passed on to the
> government. It is important that governments allow ample time for firms to
> prepare their proposals and also take into consideration that foreign
> bidders may need additional time than would a national entity.
>
>
>
> Proposal
>
>
>
> The proposal contains the bidder's proposed technical solution, management
> approach, and cost. Proposals usually contain very sensitive, and often
> confidential, commercial information. It is important that proposals be
> treated carefully by governments to insure that this sensitive information
> is not released to competitors.
>
>
>
> While often delivery of the technical, management and cost proposals are
> requested simultaneously, government could save money, and often time, by
> requiring the cost proposal two to three weeks after the others. Late
> changes by bidders to their technical proposals are often not adequately
> incorporated into the cost proposal causing later disagreements and delays.
>
>
>
> As the government reviews the proposals, they may request clarifications or
> additional information from bidders. Due to the sensitivity of interactions
> with bidders at this stage, it is important that this be done formally in
> writing and with good documentation maintained.
>
>
>
> Live Test and Demonstration (LTD)
>
>
>
> On very large and/or complex procurements, the government may require that
> a Live Test and Demonstration or Operational Capability Demonstration (OCD)
> be performed to demonstrate and validate the proposed technologies.
> Governments should provide bidders selected for an LTD as much time as
> possible to prepare. Bidders must obtain appropriate space, bring in
> required hardware and equipment, assemble the right software and assemble
> staff for the LTD. LTDs and OCDs are very expensive efforts for the bidders
> and for the government that sometimes must assemble large, skilled
> evaluation teams. Thus they should be required sparingly and in very select
> situations.
>
>
>
> Best and Final Offer (BAFO)
>
>
>
> Once the proposal has been submitted and the LTD, if required has been
> performed, bidders begin to finalize the prices from their vendors,
> subcontractors and bidding partners and to fine-tune their own costs. The
> BAFO will also incorporate any changes indicated by the LTD and any
> clarifications that may have been requested from the government during their
> review of the technical and management proposal.
>
>
>
> Award
>
>
>
> The award process consists of informing the selected bidder of their
> success, and, more importantly, informing the losing bidders of the reasons
> they were not selected. Being open and sensitive during this process is
> important and can help avoid later problems and protests.
>
>
>
> Losing bidders want to understand in as much detail as possible areas where
> their proposals were deficient. Providing the information at this time will
> allow them to improve their processes for their next effort and also assures
> them that the process was transparent and fair. If bidders feel information
> is being withheld, it raises their suspicions about the entire process and
> may lead to a formal Protest simply as a means of acquiring more
> information.
>
>
>
> Protest
>
>
>
> A formal protest procedure to higher authority and ultimately to an
> independent authority is important to providing an open, accessible, fair,
> transparent and documented procurement process. This provides an
> opportunity for bidders to be heard and to receive an explanation of why a
> given bid was turned down. Protesting is a significant event that bidders
> do not take lightly. The process is expensive for both the bidder and the
> government, ties up critical resources, and potentially negatively impacts
> the image of the bidder in the eyes of the government. However, an
> effective protest process will help maintain competition in current and
> future procurements.
>
>
>
>
>
> On Thu, 11 Sep 2008 01:57:15 -0700 (PDT), "wesley kiriinya"
> <kiriinya2000 at yahoo.com> said:
>
>
>
> I think there are two things in this argument.
>
>
>
> First when a company/gvmnt is buying the back end/base software e.g. a
> database/operating systems. I agree that "...procuring agents should not
> mention any trade marks, companies or product names when requesting for
> quotations..."
>
>
>
> Second when a company/gvmnt is buying middle level software that should
> operate with the back end software and in this case I think that the
> procuring agents should atleast mention what the back end software is. This
> is useful information to anyone willing to submit a quotation.
>
>
>
> Regards.
>
> 8~)
>
>
>
>
>
> I don't want to go to Hell, I don't want to stay on Earth, but what I'm I
> going to do in Heaven.
>
> --- On Wed, 9/10/08, Liko Agosta <likoa at verviant.com> wrote:
>
> From: Liko Agosta <likoa at verviant.com>
> Subject: Re: [kictanet] Software procurement in kenya
> To: kiriinya2000 at yahoo.com
> Cc: kictanet at lists.kictanet.or.ke
> Date: Wednesday, September 10, 2008, 10:09 AM
>
> Evans ...
>
>
>
>
>
>
>
> We are a services company that provides both Closed Source and Open Source
>
>
>
> Consulting to clients ....
>
>
>
>
>
>
>
> We build on what clients have already paid for...
>
>
>
>
>
>
>
> We can discuss TCO ...
>
>
>
>
>
>
>
> Liko Agosta, CEO
>
>
>
> Verviant Consulting Services.
>
>
>
>
>
>
>
> www.verviant.com
>
>
>
>
>
>
>
> Phone : 1-919-341-1820
>
>
>
> Fax : 1-978-268-8403
>
>
>
>
>
>
>
> Toll Free: 1-866-551-4935
>
>
>
>
>
>
>
> Pager: 9193891551 at txt.att.net
>
>
>
>
>
>
>
> -----Original Message-----
>
>
>
> From: Evans Ikua [mailto:ikua at lpakenya.org]
>
>
>
> Sent: Wednesday, September 10, 2008 2:48 AM
>
>
>
> To: Liko Agosta
>
>
>
> Cc: kictanet at lists.kictanet.or.ke
>
>
>
> Subject: RE: [kictanet] Software procurement in kenya
>
>
>
>
>
>
>
> Liko,
>
>
>
> There is nothing wrong with the Law. It only needs to be followed. It
>
>
>
> actually has very good intentions of making sure that all (technology)
>
>
>
> suppliers get an equal opportunity to tender for a whatever it is.
>
>
>
> Mind you, once the tenders have been received and opened, the client
>
>
>
> is under no obligation to buy from anyone, not even the lowest price.
>
>
>
>
>
>
>
> Our argument is this; say a ministry wants to buy a SQL DB Server.
>
>
>
> They advertise this without mentioning MS SQL Server anywhere (that's
>
>
>
> what the law says). You quote your SQL Server at KSh 5.6m (you are a
>
>
>
> MS Gold Partner), and I quote my Open Source SQL server at 0.5m (I am
>
>
>
> only selling my services and not licenses). The tendering committee
>
>
>
> now has two options and the guys in IT can defend their choice of
>
>
>
> technology, and the TCO that goes with it, all the way from having to
>
>
>
> buy upgrade licenses a year later or so. Then the decision is made. At
>
>
>
> this point, nobody can come and tell them that they must buy this or
>
>
>
> that, its their decision. Important thing is that the management has
>
>
>
> seen all the options available.
>
>
>
>
>
>
>
> If this law is broken in your favour, I don't expect you to have a
>
>
>
> problem with it. You are happy. No?
>
>
>
>
>
>
>
> It is this that will raise management questions about the cost of
>
>
>
> license upgrades vis a vis the cost of migrating to FOSS products. A
>
>
>
> Ministry would save more by migrating to Scalix than upgrading to MS
>
>
>
> Exchange in the long term. But how does the accounting officer get to
>
>
>
> know this if the IT guy only requests a particular brand name, leaving
>
>
>
> out everyone else? For public institutions that are running on our
>
>
>
> taxes, we want to know that they are spending money prudently. They
>
>
>
> cant be given a blank cheque.
>
>
>
>
>
>
>
>
>
>
>
> --
>
>
>
> Evans Ikua
>
>
>
> Linux Professional Association of Kenya
>
>
>
> Tel: +254-20-2250381, Cell: +254-722 955 831
>
>
>
> Eagle House, 2nd Floor
>
>
>
> Kimathi Street, Opp. Corner House
>
>
>
> www.lpakenya.org
>
>
>
>
>
>
>
>
>
>
>
> Quoting Liko Agosta <likoa at verviant.com>:
>
>
>
>
>
>
>
>> Evans,
>
>
>
>>
>
>
>
>> That law should be changed :)
>
>
>
>>
>
>
>
>> If a government agency has already invested in some technology stack, they
>
>
>
>> should have the right to say they want a solution that ran's on that
>
>
>
>> technology stack ....lets says Microsoft SQL Server ..
>
>
>
>>
>
>
>
>> Why ... The license for SQL server will be a sunk cost at that point and
>
>
>
>> getting different technology is making a bigger financial commitment and
>
>
>
>> raising project risk .... also .. if the customers programmers/admins know
>
>
>
>> C# and SQL Server or Websphere and DB2, the client has the right to pick
>
>
>
>> that platform ...
>
>
>
>>
>
>
>
>> We have ran into this with our clients. Whenever we are doing project
>
>
>
>> discovery, we will find out which technologies they currently have/support
>
>
>
>> ... if a client has SQL Server, we will typical ask for usage reports for
>
>
>
>> that SQL server box and in most cases, we have been able to save money by
>
>
>
>> "adding to" their existing infrastructure ... or tuning their
>
>
>
> existing
>
>
>
>> infrastructure to take more load.
>
>
>
>>
>
>
>
>> Many organizations we have worked with tend to buy a servers/software
>
>
>
>> licenses for each project ... we advice against this and are usually for
>
>
>
>> consolidation and better management. That way a 4 CPU license for SQL
>
>
>
> Server
>
>
>
>> Enterprise Edition (approx USD 80,000) will be apportioned to the 20
>
>
>
> systems
>
>
>
>> or projects that will use a well tuned 4CPU SQL server ....
>
>
>
>>
>
>
>
>> So .. good intentions... bad law ... why enforce or spend time on it
>
>
>
>>
>
>
>
>> My 2 cents
>
>
>
>>
>
>
>
>> Liko Agosta, CEO
>
>
>
>> Verviant Consulting Services.
>
>
>
>>
>
>
>
>> www.verviant.com
>
>
>
>> Phone : 1-919-341-1820
>
>
>
>> Fax : 1-978-268-8403
>
>
>
>> Toll Free: 1-866-551-4935
>
>
>
>> Pager: 9193891551 at txt.att.net
>
>
>
>>
>
>
>
>>
>
>
>
>> -----Original Message-----
>
>
>
>> From: kictanet-bounces+likoa=verviant.com at lists.kictanet.or.ke
>
>
>
>> [mailto:kictanet-bounces+likoa=verviant.com at lists.kictanet.or.ke] On
>
>
>
> Behalf
>
>
>
>> Of Evans Ikua
>
>
>
>> Sent: Tuesday, September 09, 2008 1:34 PM
>
>
>
>> To: Liko Agosta
>
>
>
>> Cc: kictanet at lists.kictanet.or.ke
>
>
>
>> Subject: [kictanet] Software procurement in kenya
>
>
>
>>
>
>
>
>> Interesting what Google can come up with:
>
>
>
>>
>
>
>
>>
>
>
>
> http://www.linuxworld.com/news/2008/052308-kenya-linux-group-challenges-proc
>
>
>
>> urement.html?fsrc=rss-linux-news
>
>
>
>>
>
>
>
>>
>
>
>
>> We finally got to meet with the PPOA on Friday, 5th September. We had
>
>
>
>> a very fruitful discussion on the Public Procurement and Disposal Act
>
>
>
>> 2005, whose provisions are being ignored by Government procurement
>
>
>
>> agents:
>
>
>
>>
>
>
>
>> https://ict-innovation.fossfa.net/taxonomy/blog-tags/kenya
>
>
>
>>
>
>
>
>> This good law stipulates that procuring agents should not mention any
>
>
>
>> trade marks, companies or product names when requesting for
>
>
>
>> quotations. They are required to just give the specs of what they need
>
>
>
>> to accomplish. But how many times do we see these RFQs with brand
>
>
>
>> names such as Microsoft *?. This has got to stop and nobody has any
>
>
>
>> excuse to break the law with impunity.
>
>
>
>>
>
>
>
>> We will be putting details of the proceedings on our website soon, and
>
>
>
>> also in the media.
>
>
>
>>
>
>
>
>>
>
>
>
>> --
>
>
>
>> Evans Ikua
>
>
>
>> Linux Professional Association of Kenya
>
>
>
>> Tel: +254-20-2250381, Cell: +254-722 955 831
>
>
>
>> Eagle House, 2nd Floor
>
>
>
>> Kimathi Street, Opp. Corner House
>
>
>
>> www.lpakenya.org
>
>
>
>>
>
>
>
>>
>
>
>
>>
>
>
>
>>
>
>
>
>>
>
>
>
>>
>
>
>
>> _______________________________________________
>
>
>
>> kictanet mailing list
>
>
>
>> kictanet at lists.kictanet.or.ke
>
>
>
>> http://lists.kictanet.or.ke/mailman/listinfo/kictanet
>
>
>
>>
>
>
>
>> This message was sent to: likoa at verviant.com
>
>
>
>> Unsubscribe or change your options at
>
>
>
>> http://lists.kictanet.or.ke/mailman/options/kictanet/likoa%40verviant.com
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>>
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>>
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> _______________________________________________
>
>
>
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