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<!-- EDIT BELOW THIS LINE Assessing the Effectiveness of the Public Procurement Laws in Preventing Corruption in Emergency Procurement Processes in Kenya Executive Summary The core objective of this paper is to assess the effectiveness of public procurement laws in preventing corruption in emergency procurement processes in Kenya. Public procurement is one of the major commercial activities in Kenya and therefore, it may greatly impact the growth or deterioration of the Kenyan economy depending on how efficiently it is conducted. The Kenyan public procurement processes have been plagued with corruption over the years. The emergency public procurement processes are no exception; arguably, they present the most conducive conditions for corruption to thrive. This is because emergency procurement processes are characterized by non-competitiveness, and wider discretionary powers for the procuring entity and public officials, among other factors. The risk of corruption in emergency procurement processes is further exacerbated by the existence of loopholes in the existent Kenyan legal and regulatory framework. The Kenyan legal and regulatory framework is lacking in this regard because it fails to provide procedural guidelines to procuring entities this therefore, inadvertently grants procuring entities great discretion. The wide discretion of the procuring entities limits accountability and transparency and thus increasing the risk of corruption in the emergency procurement processes. The findings of this paper shall contribute to the body of knowledge on emergency public procurement processes in Kenya. The paper shall then provide recommendations to policymakers and practitioners on how to strengthen the Kenyan legal and regulatory framework governing emergency public procurement processes to prevent corruption. This paper is relevant, since it addresses corruption, which is one of the key challenges facing Kenya's public procurement system. Furthermore, the paper contributes to the wider global discourse on anti-corruption efforts in public procurement. Keywords: direct procurement, emergency procurement, corruption, integrity, accountability

Background Public procurement is generally defined as a government’s act of buying goods and services which it requires to fulfill its functions. In Kenya, procurement is defined as the acquisition of any kind of works, services, assets or goods including farm animals or any combination including planning, advisory and processing in the supply chain system through purchase, lease, rental, hire purchase or by any kind of contractual means. Evidently, the Public Procurement and Asset Disposal Act (PP&AD) has an expansive view of what qualifies as ‘procurement’. The PP&AD expands procurement beyond just a basic sale contract contrary to what is adopted in other jurisdictions. Public procurement is vital to the economy of a country. This is because a huge chunk of government expenditure is slotted for public procurement. Therefore public procurement laws are of utmost importance. In 2018, it was estimated that public procurement amounted to a whopping $11 trillion making 12% of the $90 million global gross domestic product (GDP). In Kenya about 26% of the GDP is directed towards public procurement. Therefore, its importance is derived from a number of things, first, the size of the market which is demonstrably large. Second, public procurement determines the delivery of public services. In addition, it is important since it spurs economic growth through procuring from micro, small and medium enterprises (MSMEs). As such, public procurement is pivotal to a country’s performance. Procurement greatly impacts the use of taxpayers’ money and therefore, it must be managed in a manner that leads to sustainable development of the economy. Consequently, procuring entities are ultimately accountable to the public. As such, there are certain principles that all public procurement processes have to conform with. Pursuant to the Constitution, the key principles for procurement systems are transparency, fairness, cost-effectiveness, equitability and competitiveness. Based on the wording of the Constitution, these principles are applicable to a procurement system which is fundamentally distinct from a single procurement transaction. The procurement system refers to the broad and ongoing framework that governs public procurement within an organization. On the other hand, a public procurement transaction is a specific instance of procurement activity that takes place within the broader procurement system. The constitutional principles aforementioned must always be present in a public procurement system, however, when it comes to the single transactions, there is a trade-off between the principles depending on the facts of the transaction. Accordingly, in some transactions, one or two of the principles may not be a decisive factor. Generally, procurement systems and transactions ought to promote transparency, efficiency, integrity and cost effectiveness. In Kenya, many public procurement transactions have been poorly managed leading to immense losses of public funds. The major transactions include the Anglo Leasing, the Independent Electoral and Boundaries Commission (IEBC) biometric voter register , the Standard Gauge Railway (SGR) and more recently the Kenya Medical Supplies Agency (KEMSA) COVID-19 scandal. These are just to name a few, but generally procurement corruption cases are on the rise in Kenya. In 2021, the Organized Crime and Corruption Reporting Project (OCCRP) released evidence indicating corruption in public procurement, spanning over four years, through shell companies directly linked to public officials. According to the World Bank, approximately 25% of Africa’s GDP is lost annually as a result of corruption. The Kenyan government loses about 33.33% of national budget is lost due to corruption annually. Studies have suggested that approximately 80% of all corruption cases before the Ethics and Anti-Corruption Commission (EACC) are procurement related. In all these cases, the common factors are opaqueness of the tendering process, inefficiencies, and lack of integrity of public officials and the procuring entities. Generally, in order to promote transparency and accountability, the default procedure of procurement is the open tendering. This sentiment is codified in Kenyan law where procuring entities are mandated to prefer open tendering in procuring the required goods, works and services. Open tendering is considered the most transparent and competitive method of procurement and it ensures that the best value can be achieved. Where an entity wishes to use a procurement procedure alternative to open tendering, it may do so only if the relevant conditions set in law are satisfied. There are many alternative procurement methods available for Kenyan procuring entities. They include design competition, two-stage tendering, restricted tendering and direct procurement among others. Each of these alternatives is expansively provided for in the Act. There have been varying levels of usage for these procurement methods; open tendering has been used at levels of 37.8%, restricted tendering at 35.7%, request for quotations at 23.6%, direct tendering at 2.4% and request for proposal at 0.5%. The focus of this paper lies with the direct procurement method which is the method used to procure goods and services during an emergency. According to the PP&AD Act a procuring entity can use direct procurement where as a result of a cataclysmic event, there is urgency and the normal procedure is impractical. The COVID-19 pandemic is one such catastrophe that created urgent need for goods such as vaccines and personal protective gear including masks and gloves. It was impracticable to expect the relevant procuring entities to go through lengthy open tendering processes while Kenyans suffered from suffered from the COVID-19 virus. The Kenyan government had to act fast by, among other things, evoking emergency public procurement processes. The health sector in Kenya was directly involved through its agencies in procuring the required goods. Particularly, KEMSA, having the duty to procure and distribute medical goods to public health institutions, was in charge of procuring the required goods during COVID-19. Reports have shown that over seventeen billion Kenya shillings worth of stock at KEMSA are unaccounted for. The International Monetary Fund (IMF) demanded an audit of the COVID-19 spending since it financially supported Kenya during the pandemic. It was later uncovered that corruption was the root cause for these losses. At face value, the public officials seem to have followed due process for emergency procurement processes. There was indeed an urgent need for medical supplies during the pandemic and competitive processes would be highly inefficient and impractical. However, the anti-corruption measures in emergency procurement processes were ineffective. Therefore, public officials within KEMSA overstated the value of the supplies that were required to be purchased and they stole the supplies from the warehouses to sell for profit to the Kenyan public. The fact that the officials would adhere to the law and still manage to engage in corrupt and fraudulent activities demonstrates a problem within the law.

The Challenge with Emergency Procurement in Kenya The PP&AD permits procuring entities to use direct procurement method where as a result of a crisis, there arises great need. It goes on to outline the procedure that shall be followed in using direct procurement. The Act defines urgent need as the need for services, goods and works in situations where there exists an imminent threat to public welfare, health, safety or a threat to the damage of property, in a manner that engaging in the normal tendering processes or other alternative methods would be impractical. In seeking approval to go ahead with the direct procurement on grounds of urgent need, the accounting officer of a procurement entity is to be furnished with sufficient evidence verifying that there is an emergency. The legal provisions as demonstrated above, contain loopholes that have in the past been manipulated to justify direct procurement and hence disregard the principles of cost-effectiveness, transparency and accountability. The direct procurement method is often wrongfully allowed to disguise the corrupt intentions of involved public officials. This was witnessed during the COVID-19 pandemic. The problem squarely lies with the shallowness of the Act and the attendant regulations. The definition of ‘urgent need’ as ‘imminent threat’ is shallow and is problematic as it leaves a loophole that can be exploited for corruption. The procuring entity may term foreseeable and preventable events as causing an urgent need. Similarly, it is possible for public officials to claim that there is an urgent need even though the need arises from lack of proper planning. The laws do not mandate the accounting officer to demand for proof of all the above. Rather, the law dictates that the accounting officer be furnished with ‘adequate evidence’. This gives the accounting officer wide unregulated discretion to determine what evidence amounts to adequate. Therefore, emergency procurement processes may be approved in situations where open tendering would be better suited due to the loopholes in law. This makes it easier for corrupt and fraudulent practices to prevail. It is evident that the anti-corruption measures in emergency procurement processes are highly ineffective.

Literature Review The literature on emergency public procurement processes has gained significant attention in recent years. Scholars seek to better understand the nature and dynamics of these emergency public procurement processes. One of the principal concerns in emergency procurement is the high potential for abuse or corruption, given the urgent need concerned. As such, there is a growing body of research aimed at examining the factors that influence the effectiveness of emergency procurement processes, as well as the challenges and opportunities associated with such processes. The vital principles in emergency public procurement As aforementioned, the need for emergency public procurement can arise due to catastrophic events such as natural disasters, civil unrest, public health emergencies, or other unforeseen and unpreventable events. It is crucial that the principles of transparency and accountability, are applied in emergency public procurement to ensure that public funds are used appropriately and that the urgent needs of the public are met. These principles are also key to achieving the objectives of public procurement as set out in law. Under normal circumstances, procurement laws require that procuring entities comply with all these principles as far as it is possible. However, in the event of an emergency, there is a tension that arises as the procuring entities as forced to procure from a single source. Therefore, this paper analyzes how these principles are applied in light of the unique circumstances presented by emergency public procurement. Transparency Transparency is one of the most critical principles in emergency public procurement. Transparency dictates that the procurement process should be open, clear, and visible to all stakeholders being the bidders, and the public. Sue Arrowsworth holds that this principle is crucial in public procurement because it helps to prevent corruption, fraud, and other abuses of power. Dekel staes that transparency plays a crucial role in curbing corruption by ensuring that offenders are held responsible for their actions. Arrowsmith Wallace and Linarelli have suggested the concept of transparency can be divided into four different aspects namely: publicizing contract opportunities, publicizing the rules governing procurement procedures, rule-based decision making limiting the discretion of public officials in the relevant procuring entities and finally, verifying that the relevant rules have been adhered to, if not, enforcing the said rules. All these are important, however, limiting the discretion of public officers is particularly important during emergency procurement processes. Bosio, Spagnolo, and Oriana argue that limiting the officials’ discretion, limits their ability to pursue their own interests at the expense of the general public. Research conducted by Krivinsh and Vilks indicated that information transparency is directly linked with lowering corruption rates in public procurement. A paper by RECORD (Reducing Corruption Risks with Data) notes that emergencies ought not to be a justification for opaqueness in the public procurement processes. Similarly, RECORD proposes that transparency measures have to be implemented in emergency public procurement to curb price gouging. Price gouging often happens in emergencies whereby suppliers feel the need to increase prices beyond regular market value on the assumption that the government shall comply due to the high level of urgency. This would interfere with the capacity of the procuring entity in getting value for money. Despite the complexities involved with emergency procurement, Kalpschtrej et al found that it is possible to uphold the principle of transparency in emergency procurement. They further state that despite there being a single source in most emergency procurement processes, the procuring entities are under obligation to guarantee access to information about the procurement process to the general public. They propose that in emergency situations, procuring entities are bound to adopt a right-based approach throughout the procurement process. McGaughey et al states that this approach is important as there is a direct correlation between public procurement and protection and fulfillment of human rights by the State. They further claim that un-procedural public procurement processes may lead to significant breaches in human rights. For instance, during the COVID-19 pandemic, ignoring the principles and objectives of public procurement would, and indeed did some countries did, threaten human rights to health care. To conclude, in the sentiments of Dekel, transparency not only prevents corruption, it is also key to maintaining and restoring faith in the public procurement system for both suppliers and the general public being the taxpayers. This is because transparency enables them to witness what transpires within a procuring entity in a procurement process. Accountability Accountability is crucial in emergency procurement processes. Arrowsmith states that accountability is both a principle by which a procurement system must conform to and equally an objective for the public procurement system. Accountability refers to the means that a public procurement system provides to the stakeholders to establish whether procuring entities are meeting public procurement objectives such as those of integrity, fairness and competitiveness. Ensuring that the rules and objectives of a public procurement system can be tracked and enforced is one of the four aspects of transparency as discussed above. Arrowsmith states that governments ought to bear the costs of accountability mechanisms because they so often are costly. The costs may include the costs of publicizing information, or costs of loss of value for money that results from limiting discretion of public officials engaged in the emergency public procurement. Scholars argue that accountability and transparency are closely associated. However, Arrowsmith argues that accountability is an objective of a procurement system whereas transparency is a tool which is the means that is implemented to achieve the various objectives of the procurement system. The Nature of emergency procurement Kissi, Osei-Tutu and Safowaa state that emergency procurement processes are distinct from all other procurement methods because emergency procurement processes require immediate response and as such, the procurement process is typically expedited in order to deliver the urgently needed goods, services and works. These goods, services and works are often procured from private companies. Oftentimes, the purchases flow from long-term agreements with the concerned companies, which agreements may have included clauses providing for future cooperation in the event of an emergency. Huo and Xu explain that emergency procurement processes are only justifiable where there is a real urgency. However, it is noteworthy that the mere existence of an urgency is not sufficient to justify evoking an emergency procurement process. Only urgent needs that were unforeseeable and unpreventable are covered under this method of procurement. Moreover, poor planning cannot suffice as a justification for emergency public procurement. If there is enough time to go through the normal open tendering processes, then emergency procurement processes should not be preferred. Emergency procurement processes are only justified when they are absolutely necessary and the other procedures would be impracticable. This is because as Schultz and Søreide state, the primary concern in emergency procurement processes is the urgency with which the goods, services and works are required which increases the likelihood to conduct inefficient procurement in light of the severe time pressure. The impact of corruption on the effectiveness of emergency procurement Emergency procurement processes are prone to corruption due to the limited time and resources available for oversight and accountability measures. This review of literature examines why and how corruption in emergency public procurement processes occur. Schultz and Søreide state that corruption in emergency procurement occurs due to the fact that derogation from normal procurement processes is justified. Furthermore, they state that regardless of who conducts corruption, the form of corruption is twofold. The first form of corruption is manifested through the misuse of lawful derogations from the standard rules. Secondly, corruption manifests in the form of concealed breaches of procurement rules where at face value it seems that due procedure was adhered to. Public officials or the concerned suppliers engage in corrupt conduct that is within the grey areas of the law; in other words, most corrupt acts are not obviously corrupt. Sope, Petherick, Ojomo and Mabece explore the reasons which contribute to corruption during emergency procurement processes. The first reason is due to the fact that during emergencies, governments contract directly with preferred suppliers hence omitting any competition. Similarly, various aspects of the procurement process are modified. These processes include the supplier verification process which is eliminated since suppliers are chosen non-competitively and opaquely. This may lead to exorbitant pricing. The conduct of contractual formalities is modified as some governments chose to conclude contracts informally and modify terms of payment to provide payments to suppliers in advance. Similarly, the contract implementation is impacted as in emergencies there is limited monitoring and oversight which leads to acquisition of substandard goods and services or poor delivery of the concerned goods and services. Sope et al. proceed to state that legal requirements related to transparency are unlikely to be observed in states that experience high levels of corruption. With limited transparency, verification that procurement decisions are consistent with the laws is harder. Moreover, during emergency procurement processes, a majority of governments centralize their procurement transactions, while this safeguards efficiency and integrity, it magnifies the ramifications of unethical procurement. In addition, the discretion of public officials increases during emergencies due to the focus on speedy delivery of the urgent need. This impacts on accountability of the concerned procuring entities. There are a few countries that have made provisions in law to immunize public officials from accountability for decisions they make in procuring needed goods and services required to mitigate an emergency. Such countries include Canada and India, whose laws guarantee immunity for public officers acting in good faith to respond to emergencies; the immunity extends to the acts they commit as they procure goods and services. Corruption is also said to result from operational barriers such as lack of electronic procurement systems which would otherwise be more efficient in holding the procuring entities accountable for their conduct during the procurement processes. In conclusion, corruption in emergency public procurement processes poses a significant threat to the effectiveness of emergency response efforts. The forms of corruption in emergency procurement processes are the misuse of lawful derogations from the standard rules and in the form of concealed breaches of procurement rules. The causes of corruption in emergency procurement processes include the lack of transparency, limited monitoring and oversight, and the limited availability of goods and services during an emergency. The impact of corruption on the emergency procurement processes includes resulting in the inefficient use of resources, the procurement of substandard goods and services at inflated prices, and ultimately, the erosion of public trust in government institutions. To mitigate corruption in emergency procurement processes, there may be a need to establish transparency, accountability, and effective monitoring mechanisms.

The Nature of Emergency Procurement Emergency Procurement The adage, no one knows tomorrow often strikes home when unforeseeable emergencies arise. The COVID-19 pandemic and recently, the earthquakes that hit Turkey and Syria are perfect examples of how people can be faced with dire emergency situations that they were not adequately prepared for. With such circumstances causing great havoc and loss of lives, country governments often resort to establishing emergency procedures to try and control or prevent further impacts. Indeed, emergency procurement is among the many mitigation processes nations enact to alleviate their citizens from the consequences of a detrimental or dire situation. Defined as acquisition by the government or a state agency which is necessitated by the unexpected occurrence of a situation that presents an imminent danger to public safety, emergency procurement is often done to facilitate the prevention or mitigation of loss of life, property, and health of people. Conversely, it also includes processes conducted in acknowledgment of a court settlement, agreement, order, or any other legal judgment as required by applicable laws. While distinct from other forms of procurement, emergency acquisition also includes the process of acquiring, sourcing, and paying for services and goods essential for responding to an emergency circumstance. The UNAIDS defines emergency procurement as acquisition necessitated by urgent situations that develop due to emergencies and thus does not give room for the conclusion of a competitive process. The competitive approach during procurement implies the process of putting in place a supplier solution through an organized, fair, and transparent proposal or bid procedure. As a result, the efficacy of the emergency response in fulfilling the immediate requirements of impacted populations, commencing on the path to recovery and reconstruction, and establishing faith in Governing Bodies is closely related to the effectiveness of the procurement procedures adopted to meet the urgent demands.

Role of Procurement in an Emergency The procurement unit's main duty and obligation is to acquire the proper product in the proper amount and quality, at the proper time, for delivery to the proper location. The acquisition of relief supplies is necessary for any relief efforts. Emergencies are often life-saving circumstances, therefore crucial that governments act quickly to acquire the necessary items and supplies and get them to the intended recipient. It is impossible to overstate how crucial coordination, teamwork, and communication are to the procurement process and to the overall rescue effort. If relief supplies are unavailable, slow or inadequate procurement might cause a delay or even the end of the operation, preventing CARE from fulfilling its purpose of providing desperately needed aid to disaster victims. Emergency Procurement Process The emergency procurement process encapsulates the practices adopted during the event of an emergency. It involves the crucial steps and considerations governments and agencies take to ensure effective response to an emergency. For example, in the event of an emergency, governments and organizations are flexible in how they get the commodities and services needed for their response. During such instances, agencies may forego normal procurement processes. While implementing a more flexible procurement procedure, governments should assess what is reasonable and justified in light of all of the facts and circumstances at their disposal. In essence, agencies may purchase directly from a supplier if the delay in executing a conventional procurement procedure such as advertising and competitive tendering, prevents them from providing the goods or services in time to provide effective relief. Governments frequently have to strike a compromise between satisfying their overall public sector commitments (operate lawfully, rationally, and with integrity) and the necessity to take immediate action (for instance, to save or preserve life, to secure buildings, or to repair essential infrastructure). Before embarking on the procurement process during an emergency, government agencies must consider the following key considerations as they are essential in responding to an emergency. One, make it clear that the circumstance qualifies for "emergency" treatment and that a dynamic approach to procurement is totally justifiable. Two, determine, outline, and prioritize the urgent procurement tasks that will provide relief. Three, take into account the operational environment and conditions "on the ground," research what other governmental entities and NGOs are doing, and, whenever feasible, work together. Lastly, they should consider the responsibility of care to suppliers and take the necessary precautions to protect their safety.

Procurement Planning during Emergencies Planning is a crucial step during the process of emergency procurement as it helps outline the key requirements needed to tackle the situation. Agencies are required by policy to establish a plan to adhere to the Emergency Procurement element of the Governance - Goods and service policy. As a result, the emergency response team should always do a requirements assessment and create a procurement plan before beginning any procurement procedure. The first step includes the identification of needs for the procurement of products, works, or services, as well as finance sources, which should be decided upon by the concerned officials and stakeholders. Second, establish the appropriate internal arrangements for hierarchy, communication, degree of authority, document flow, payment procedures, internal audit, verification and acceptance procedures, and procurement personnel requirements based on the circumstances. The third step involves developing agreements for collaboration with other parties, especially those who are already active in the region, such as the UN and other organizations, customs, end users, and beneficiaries. Fourth step envisages engaging with local communities in designing, planning, and implementing the emergency response practices. All plans ought to be approved by a Head Office and should match the available budget and the plan should specify how the commodities will be distributed and the logistics needed to get them to their ultimate locations, for example, warehouses. Subsequently, procurement preparedness is a critical component of emergency catastrophe planning and management. In acquisition, many procedures should be performed before an emergency event to optimize a procurement system's standing ability to respond effectively to emergencies. Procurement readiness is especially important in slow-onset situations because it allows interventions before such emergencies reach the acute phase, when an emergency response of the sort used in rapid-onset emergencies is required. In emergency situations, developing solid procurement preparedness methods is crucial for efficient, effective, transparent, and responsible procurement. The advantages of early preparation and successful procurement readiness include being able to respond to and lessen the extreme damages of a catastrophe more rapidly, restore key services, and participate in the recovery and reconstruction process. Procurement procedures during emergencies are often put in place to facilitate the timely reaction to urgent requirement for help or aid while maintaining compliance with the general principles of procurement as stipulated by particular laws governing acquisition. Along with other Fast-Tracking Policies and Procedures elements, the procurement processes provide greater delegation of power and flexibility in particular program and operational areas for a time-limited period. Even in emergency situations, every effort should be taken to allow competition; the typical term for tendering can be shortened to the time permitted for a Request for Quote (RFQ). Processes that would ordinarily be handled by formal bidding may, in exceptional cases such as emergencies, be handled by informal bidding. In essence, a waiver of competitive bidding might be warranted in life-threatening conditions or substantial staff security issues.

Types of Emergencies and their Procurement Approaches Emergency response may be classified into three categories based on the severity of the threat or danger and the extent of injury if help is delayed. They include Immediate response, disaster relief, and post-disaster reconstruction. These classification outline that in certain cases, authorities will have to respond at several levels throughout time. In other cases, just one level of answer is necessary. While determining the appropriate degree of response, agencies should always use the best procurement practice available considering the situation and the urgency of the need to respond. They should evaluate the type and extent of the harm if remedy is delayed and guarantee that their procurement decisions can be justified. Immediate Response Also referred to as reactive procurement, immediate response encapsulates approaches executed in the event of a significant disaster. It is vital to react quickly, this may include obtaining medical equipment to assist the injured as well as obtaining water, food, and shelter for additional victims. It may also entail swiftly mobilizing personnel, equipment, or machinery, or transferring service centers for critical infrastructure services, such as power, gas, water, and telecommunications, to new safe locations. With government staff under pressure to respond instantly, it makes sense why reactive procurement fits such kind of a situation since it enables swift response. Hence, when obtaining products or services, agencies are not obligated to follow standard procurement procedures, but rather to demonstrate solid reasoning and good judgment.

Disaster Relief Often treated as a level two emergency strategy, disaster relief comprises instances where it is unnecessary to react instantly but essential to respond urgently. This is generally when there is no longer a threat of loss of life, substantial infrastructure damage, or a state of emergency is removed. If it is justifiable, agencies may forego standard procurement procedures if doing so would prohibit the agency from providing the goods or services in time to provide meaningful relief. The process involves determining, defining, and prioritizing the urgent purchase needed to provide effective relief. Additionally, it includes purchasing from the most convenient vendors. While price will be a factor in supplier selection, the most important aspect must be the provision of instant relief. Prior to making a purchase, concerned agencies have to acquire financial authorization. If necessary, authorities might provide a blanket authorization to cover this stage of the emergency response. Primarily, agencies need to consider their sourcing possibilities, taking into account any existing contracts that could exist such as any-of-Government supplier, panel contractor or syndicated contract. Conversely, if they need anything right away, they might decide to employ a different agency's suppliers that were chosen after a competitive hiring procedure. Similarly, where feasible, agencies can also take into account alternate contracting options, such short-term equipment leasing as opposed to outright purchase. This provides more time to find a more long-term solution through a more competitive procedure. Crucially, the process also necessitates informing suppliers that the acquisition is being conducted as an emergency procurement to give immediate assistance and that any medium- to long-term solution would be chosen through a more competitive process.

Post-disaster Reconstruction: Accelerated Procurement After an emergency situation has stabilized and the response effort is focused on post-disaster rebuilding and cleanup, most types of products and services should be purchased via standard procurement methods. Nonetheless, agencies may choose to use an expedited procurement procedure for specific types of procurement, such as the supply of important infrastructure such as water and sewage treatment facilities, as well as the reconstruction of homes or land remediation. An expedited procurement process is one in which an agency creates a procedure to meet the particular subset of procurement and the agency's immediate demands. It will enable more flexibility and responsiveness while maintaining sufficient rigor to allow for some amount of competition while maintaining governance and responsibility for spending. When an agency creates an expedited procurement method, it must be ready to defend any deviation from the standard procurement process.

Common Approaches to Emergency Procurement During times of crisis, the procurement department plays a critical role in response efforts by obtaining critical commodities and services. Time restrictions, damaged supply chains, restricted resources, and increased demand for particular commodities are some of the usual issues connected with emergency procurement. Equally, due to the emergency, the procurement function can also be dealt with internal difficulties including working from home without full access to resources or equipment, poorer morale, or more stress. These difficulties lay the groundwork for the common methods utilized during emergency procurement. In essence, in the event of an emergency, conventional procurement methods are somewhat strict and complicated and thus impede effective and efficient response, hence, the need for alternative, in this sense, emergency procurement. To that effect, the United Nations (UN), an entity that has often operated in uncertain and high-risk environment, provides a comprehensive procurement guideline for countries to adopt whenever they face emergencies. The guidelines include, increased delegation of procurement authority, decentralizing vs. centralizing the procurement function, non-competitive contracting, and utilizing existing standing offers or vendor lists.

Non-competitive contracting Noncompetitive procurement, also known as "sole source" or "single-source" procurement, occurs when the buyer either chooses the business to purchase from or limits the suppliers allowed to participate in the bidding process. In essence, during an emergency, governments or agencies prefer the freedom to forego the necessity to get bids from various suppliers. Several countries' rules have clauses that permit purchasing authorities to use non-competitive contracting where it is "strictly required" and for reasons of urgency brought on by circumstances that the procuring body could not have foreseen. However, it is not always easy to define what is "strictly essential," particularly in situations of an urgent emergency where the operational environment might be unstable. The procurement handbook of the UN provides instructions on the subject. In order to decrease lead times and the danger of contract failure, priority should be given to bidders that have expertise supplying the UN system during emergency operations, according to the rules for participating in non-competitive contracting. Likewise, other nations such as Kenya often utilize such kind of non-competitive approach in the event of an emergency. Indeed, the national government primarily sticks with prior suppliers. In resemblance of the UN’s procurement manual, Kenya also though not always, provides a brief justification of which providers were taken into account and why. Additionally, it states that while financial regulations and rules permit exceptions to the rule of competition when operational needs in emergency situations prevent procurement from being done through formal methods of tender, sensible efforts ought to be taken during an emergency situation to still pursue a process wherein multiple offers are compared to ensure the best value for money for the nation. Although non-competitive contracting is an option, there may be situations where it makes sense to use a competitive procedure, even in an emergency. Additionally, it is crucial to remember that procurement authorities are subject to the same obligations of justice, honesty, and openness when a competitive procedure is launched. The concept of fairness, which states that bidders should be given the same information at the same time to facilitate the creation of a compliant bid, is not waived by the occurrence of an urgent emergency by procurement authorities.

Increased delegation of procurement authority Delegating more purchasing authority is a typical strategy for dealing with emergencies. By raising the contract entry restrictions that would often require extra layers of clearance, this strategy's main advantage is that it empowers procurement officials to quickly find critically required products and services. For instance, the Director of the Procurement Division, who is in charge of the overall strategic management of the procurement function, is now able to delegate a greater amount of financial authority. In accordance with the strategy, an emergency contracting report must be sent to the Treasury Board Secretariat within 60 days of the work's authorizations or start date. The report should include "detailed information about the emergency situation, the type and total value of the awarded contract, the reason(s) why the bid requirements were not practicable or permissible, and the department's or agency's delegated contracting authority level at which the emergency contract entry was approved. Decentralizing versus centralizing the procurement function Another critical approach to procurement in emergency cases is to delegate purchasing responsibility to areas or functional departments that are closer to the emergency. Decentralizing the procurement processes can help to reduce overall procurement lead-time by allowing those "on the ground" to directly source critical goods and services. Furthermore, accessibility to localized knowledge enables procurements to be tailored to the needs of a specific region. However, procurement decentralization presents two potential dangers, in the sense of heightened likelihood of corruption and increased pricing. As a result, care should be given while considering whether to provide actors "on the ground" the procurement role. For example, audit evidence from the United Nations High Commissioner for Refugees (UNHCR)’s act of decentralizing procurement to partners, reveals that the commission ended up incurring unnecessary high cost. In essence, in the wake of refugees fleeing Myanmar for Bangladesh, the UNHCR sought to procure an emergency response kit to which it delegated the functions to local members. However, this proved the wrong approach, and the audit report showed that UNHCR neglected to evaluate the comparative benefit of delegating procurement to partners, and that the partners acquired products at higher costs in comparison to the UNHCR's own procurement. All in all, when deciding whether to centralize or decentralize procurement, it could be desirable to combine the best features of both approaches. This balance may be seen in Canada's reaction to the COVID-19 pandemic. Decentralizing purchases can make it easier for persons on the ground to quickly access supplies and services during geographically confined emergencies. De-centralization might not be a successful procurement approach, though, when an emergency affects several areas or the whole world, as it did with the COVID-19 pandemic. The COVID-19 pandemic's worldwide scope offered a unique difficulty since the emergency situation developed on a global scale virtually simultaneously. Due to this, there was unheard-of worldwide rivalry for the same limited resources. To address the issues caused by the rising worldwide demand for limited products, it was necessary to further centralize the procurement function. While more procurement centralization was employed to source some items, notably those in short supply due to global demand, Canada also decentralized procurement activities by increasing contract entry limitations for departments and agencies. This plan has been implemented using steps to guarantee a high level of communication and cooperation across levels of government and with suppliers who may be unfamiliar with selling to the government.

Utilizing existing vendor lists or standing offers In times of crisis, the capacity to mobilize resources and respond rapidly is frequently important to the effectiveness of response operations. The development of vendor lists or standing offers is one approach used to shorten procurement lead-time and assure timely delivery of products and services. A standing offer is a proposal made by a potential supplier to deliver products and/or services at predetermined pricing, under certain conditions and terms, if and when needed. It is seen as an expedient method of procuring products and services since call-ups against standing offers are handled faster, require less paperwork, and have pre-determined pricing and terms and conditions. At a time of crisis, relying on pre-established standing offers not only reduces the time and expense of issuing a solicitation, but the pre-arranged pricing may also safeguard the purchasing body from price gouging, which can occasionally occur during a time of crisis. The strategy offers some stability in a potentially volatile moment by working with pre-qualified established vendors. A similar method for expediting the procurement of important products and services in an emergency is to revise or activate options in current contracts. Although altering an existing contract may appear to be unfair to other possible vendors, it has the advantages of reducing time and dealing with a vendor who is already known to the purchasing body and presumed to be trustworthy. For example, a fundamental recommendation from the audit of the Hurricane Katrina response was that procurement authorities should have used pre-existing contracts to satisfy emergency demands. The auditors noted that if the contracting officers had been allowed to order from pre-existing contracts, the overall procurement lead time would have been lowered by removing the requirement to undertake a contractor responsibility decision or a price reasonableness determination.

Kenya’s Procurement System Kenya primarily utilizes a Public Procurement approach in all its acquisition activities, particularly during emergency circumstances. Defined as the purchasing of products, services, and works by governments and state-owned corporations, public procurement procedure encapsulates a series of steps that includes need assessments, awards, contract management, and final payment. Governments are expected to carry out public procurement effectively and in accordance with high standards of conduct in order to guarantee high quality service delivery and protect the public interest. In many countries, public procurement accounts for about 12% of GDP and 29% of government spending, respectively. Due to the enormity of the money flows involved, public procurement continues to be the government activity most susceptible to waste, fraud, and corruption. Currently, Kenya’s public procurement is regulated by the PP&AD. The legislation applies to the whole public sector at both levels of government, including the asset disposal system. It relates to contract management, inventory management, asset disposal, asset management, procurement planning, procurement processing, and compliance and enforcement methods. Development of the policy was done with the aim of addressing problems with the public procurement and asset disposal system that have, over time, caused the government to lose money and, as a result, led to underdevelopment. In order to increase the capacity for enforcement, it places emphasis on the requirement for rigorous adherence to the legal framework and rules. The policy aims to standardize and close gaps in contract formation and management, asset disposal, and procurement processes, which in the past have been marked by, among other things, unfairness, ambiguous contract terms and conditions, nonperformance, unwarranted variations, delays, and cost overruns that have resulted in inherent operational and financial risks. Similarly, the PP&AD Act addresses ethical concerns among those participating in public procurement with the aim of strengthening governance and promoting, among other things, values of competition, accountability, openness, and honesty. The end result will be value for money while purchasing goods, services, and works. The policy also aims to address record management in purchasing organizations to improve accuracy and completeness, which will make audit trails and processes for asset disposal and public procurement easier. The policy acknowledges the importance of stakeholder participation as well as the role of various institutions participating in public procurement in order to guarantee an effective and efficient system for asset disposal. Unfortunately, despite the establishment of the PP&AD, there have still been cases of corruption and stealing of public fund particularly during emergency procurement. Emergency Procurement Practices in Kenya During emergencies, the Kenyan government often utilizes its public procurement system to acquire needed requirements for the effective and efficient reaction to the situation. Accelerated procurement methods are preferred to guarantee that public agency processes are efficient during periods when improved flexibility, responsiveness, and accountability are required. Hence, in times of emergency/crisis, the public procurement process is characterized primarily by: divergence from regular processes; deadline reductions and other administrative simplifications; and contract and negotiation changes. At the same time, emergency procurement processes increase the possibility of fund waste, fraud, and corruption brought on by human mistake, a lack of coordination, and the massive quantity of money that must be delivered quickly. In essence, Kenya primarily utilizes direct procurement method when conducting emergency procurement processes. Direct procurement is the act of acquiring or procuring raw materials, resources, products, and services for use in a company's core operations. The goods and services obtained through direct procurement eventually make their way to the business's final consumer or client. However, this approach has proved a costly one with consequent occurrence of corruption and public fund looting being the highlight of the use of direct procurement during any emergency situation. Due to lax financial oversight, increased spending, and frequent personnel turnover, emergency and crisis circumstances have historically been fertile ground for corruption. The media's compulsion to act and be perceived to be acting also makes it difficult for different agencies to work together. Because of this, many transactions are made in a disorganized, hasty way, which further increases the risk of fraud. In these situations, corruption frequently takes the shape of unauthorized use of lawful exceptions to the law or covert breaches of procurement regulations, even if it appears that the law has been obeyed.

Transparency and Accountability in the Procurement Cycle As emphasized above, the establishment of the PP&AD act was to foster accountability and transparency of all procurement activities, particularly, during emergency circumstances. For instance, in research conducted by the Ethics and Anti-Corruption Commission (EACC), various procurement officers and suppliers testified that some of the procurement decisions during emergency situations, were greatly influenced or impacted by external people. These included politicians, prominent managers and suppliers, and senior civil servants. In fact, senior civil servants and politicians significantly championed their support to particular contractors and suppliers for contract acquisition whilst some suppliers bribed their way into getting the procurement decisions. Moreover, the lack of access to procurement records by distributors tarnished the PP&AD policy’s objective of promoting accountability and transparency in every procurement procedure. Subsequently, emergency procurement processes were also affected by conflict of interest. In essence, more than 46% of total suppliers testified to have links with firms through proxy by public servants or owned directly. These corporation would then submit proposals to conduct business with government and eventually win the contracts. Civil persons owning the respective firms ranged from procurement officers, cabinet secretaries, senior servants and clerks. Instinctively, all of these malpractices and corruption cases facing emergency procurement often go unreported. For example, a whooping number of 228 bribery and other transgressions went unreported with suppliers citing fear of losing their lucrative contracts with the government as the primary reason for not disclosing these heinous acts. The recent KEMSA scandal is a perfect example of how the PP&AD Act has not yet been able to effectively deal with the issue of corruption in procurement processes. An evaluation by the National Taxpayers Association revealed similar problems as those that had occurred in previous emergency procurement procedures. For example, due to a lack of cooperation among the agencies engaged in health sector supply management (the Ministry of Health, KEMSA, and counties), several counties did not fully utilize the funds provided. Funds were misappropriated and others not accounted for. Because of the inability to establish efficient coordination among various government agencies, the fundamental problems of what, from whom, and how to acquire were not well addressed. As a result, the government has found itself unable to satisfy the pandemic's demands due to a lack of PPEs, testing kits, and isolation and control facilities. Additionally, given the claims of mismanagement and the abandoning of best practices and guiding principles in public procurement, the quality and quantity of bought products and services are being called into doubt. For example, the Kenya Bureau of Standards has questioned the quality of accessible PPEs in some circumstances (KEBS). Excessive spending on certain goods or services at the cost of other demands have also been a result of malpractice in the emergency procurement process. This is so because technological sophistication affects the likelihood of corruption. As a result, the government could have preferred to purchase ICU equipment over PPEs due to the possibility of rental benefits, which would have increased the danger of the pandemic affecting human life. It is worth emphasizing that unethical practices breed a market of the greatest bribers. This is because bigger earnings and more contracts allow dishonest enterprises to increase their market position further through honest techniques such as intensive marketing and lower prices. As a result, we should expect a rise in dishonest businesses and the marginalization of marginalized suppliers. This will set back the Access to Government Procurement Opportunities (AGPO) Program's goals. Emergency procurement is thus significantly vulnerable sector to malpractices and corruption, a factor that has been worsened with the nation’s preference of using the direct procurement approach to conducting its activities and dealings.

Best Practices for Emergency Procurement Processes

Background Information on New Zealand New Zealand (NZ) is an island country in the Southern part of the Pacific Ocean, it is part of the Oceania continent. NZ’s population is approximately at 4.9 million. The government spends over $ 51.5 billion which makes up approximately 20% of the country’s GDP. The expenditure is mainly directed towards the transport sector, the health sector, education and the creation of new government agencies. It is estimated that about 95% of businesses in NZ are Small and Medium Enterprises (SMEs). The implication of this is that the public procurement laws are designed to achieve horizontal policy objectives such as supporting the SMEs. Therefore, even in emergency procurement it does prefer local suppliers to foreign suppliers. NZ is a good choice for this paper due to its comprehensive procurement procedures and guidelines on every procurement method. The NZ Ministry of Business, Innovation and Employment (MBIE) has provided comprehensive guidelines for public agencies to use for reference when engaging in emergency procurement. NZ has consistently ranked lowest in relation to corruption levels. This is an indicator of the high levels of integrity within the government. The low levels of corruption are in turn indicators of effective anti-corruption measures in its laws. As such, NZ is highly aspirational to paper in a bid to borrow lessons that may inform the improvement of the Kenyan public procurement legal and regulatory framework.

New Zealand’s Procurement System The NZ public procurement is largely devolved except for some specified goods and services that are centrally procured. However, majority of the government agencies conduct procurement processes individually to cater for their own needs. This makes it easier to hold the individual agencies accountable for their own conduct in relation to public procurement. The NZ government, through the public service commission, created functional leaders in many fields including that of procurement. The functional leaders are charged with boosting the capability of agencies, promoting conduct of business with the NZ government and ensuring value for money which is achieved through collaborative contracting. The New Zealand Government Procurement and Property (NZGPP). The NZGPP is the central body which conducts centralized buying for the government for those goods and services designated to be centrally purchased. In addition, NZGPP creates the policy framework for public procurement in NZ and only mandated public organizations are bound to apply the said policy framework. In NZ, public procurement is governed by the Public Procurement Rules 2021, which are issued by the Ministry of Business, Innovation, and Employment (MBIE). The rules apply to all government agencies, including departments, crown entities, and state-owned enterprises. The main principles of the public procurement rules are transparency, fairness, and accountability. The rules aim to ensure that government agencies obtain value for money when they purchase goods and services, and that they promote competition, innovation, and the participation of small and medium-sized enterprises. The Public Procurement Rules 2021 set out the processes that government agencies must follow when conducting procurement activities. The processes include planning, market research, advertising, evaluation, and contract management. The rules also require agencies to use electronic procurement systems where possible, and to publish information about their procurement activities on the government's procurement website. In addition to the rules, there are several pieces of legislation that govern public procurement in New Zealand, including the Government Procurement Act 2018 and the Public Finance Act 1989. These laws set out the legal framework for government procurement and establish the roles and responsibilities of government agencies, procurement officials, and suppliers. Overall, the legal and regulatory framework for public procurement in New Zealand is designed to promote fairness, transparency, and accountability in government purchasing activities.

Guidelines on emergency procurement The MBIE created guidelines to emergency procurement. The guidelines are meant to outline the discretion that is available to the procuring entities in the event of emergencies occurring. These guidelines define emergencies as sudden and unforeseeable events that may result in injury, death, or damage to property and other infrastructure. The guidelines proceed to comprehensively detail what emergencies include. First, it provides for natural disasters as well as manmade disasters which include earthquakes, floods, cyclones, contaminations and fires, respectively. Failures of equipment and infrastructure is also envisaged as part of an emergency situation; these equipment include hospital equipment or infrastructure and prison security equipment. Critical health events or environmental emergencies are also included; they include pandemics such as the one the world experienced in 2019. Further, the guidelines consider political emergencies such as a coup de tat, civil unrests, or wars either in NZ or other jurisdictions that NZ support. As such where NZ needs to send support to a war torn country, to acquire the goods to send, it would be allowed to do so through direct procurement justified under the emergency exception. Another form of emergency is a critical security event including terror attacks or other serious crime under NZ law; cyber security concerns may also be considered emergencies in certain situations. Moreover, the guidelines provide that any unforeseeable events that may make it impossible for a public agency to fulfil its statutory or other critical functions within the necessary framework would amount to an emergency situation. For instance where critical election supplies are destroyed or malfunction at a time immediately preceding the election, the Electoral Commission would be justified in utilizing the direct procurement method on grounds of this being an emergency event. Therefore, a procuring agency is guided in determining whether it has an emergency situation on its hands by considering two things. First, that the concerned event falls within any one of the above-mentioned categories or is closely related to them. Second, the procuring entity may determine that the situation at hand is an emergency depending on the nature and extent of the potential harm that may be a consequence of delay. Accordingly, if the consequences of not procuring directly and immediately are dire and irreparable, then a public agency is justified to consider such an event, an emergency. The guidelines are categorical that a situation may be urgent but not an emergency depending on the cause of the urgency. Where an urgency is caused by the lack of planning by the public agency, then it cannot use direct procurement on grounds of an emergency. Furthermore, there are some urgent needs that can still be satisfied through the normal open tendering process without there being any adverse consequences. The guidelines further buttress this position by proposing that public entities do create contingency plans to ensure that they are able to quickly access goods and services in the event of an emergency or other unforeseen event. This provision implies that in some instances, if public agencies are found to have created poor contingency plans, then they might not be justified in using the direct procurement method. In creating these contingency plans, the public agencies are required to consider the strategic significance of the goods and services to be procured in the event of an emergency. In addition, the public agencies are required to consider the probability of the emergency happening and the possible consequences that it would have. This measure is given to the agencies so that they do not spend money preparing for an emergency that is highly unlikely to occur. As such, the agencies are also tasked with ensuring that the contingency measures are not unreasonably costly. The public agencies are mandated to take a balanced approach in emergency planning, the agencies should be both practical and financially responsible. This ensures that unreasonable and excessive amounts of money are not spent in contingency planning for emergencies that may never happen.

Agency Flexibility during Emergencies The guidelines provide that in genuine emergencies, the public agencies have the freedom to flexibility. This means that the agencies are not bound by the regular procurement procedural constraints .Where agencies are in emergencies as described above, they are allowed to forego the default procurement methods. However, despite the discretion that public agencies have, they are mandated to ensure that they remain reasonable and justifiable in light of the relevant facts and circumstances surrounding the emergency events. This provision ensures to check the discretionary powers of the public agencies so that they are not abused by the concerned public officials. However, if the agencies can source the required goods and services through competitive bidding and still address the urgent need, then the agencies should do so. Finally public agencies are required to act swiftly in addressing the emergency while at the same time ensuring that they uphold their overarching obligations to act reasonably and lawfully while upholding integrity.

The Key Considerations for Public Agencies in an Emergency The guidelines provides agencies with a number of considerations that would aid them as they fulfill their obligations during an emergency. These considerations may also be perceived as the appropriate steps that agencies are to fulfill. The first step given is for the public agencies to ascertain that the situation warrant treatment as an emergency as already explained above hence justifying single source or direct procurement. The second step that the public agencies are to follow is to identify the immediate actions that would relieve the situation and to prioritize such actions. These actions have to be specified as well. The third step to handling an emergency through procurement, is to consider the actual situation and operating environment in which the direct procurement has to be conducted. This environment is referred to as the conditions on the ‘ground’. This step is important as it prepare the procuring agency as it prepares to take appropriate steps in addressing the emergency. Another step that the procuring agency is required to take is to consider what any other governmental agencies or bodies and non-governmental organizations are doing in response to the same emergency so that all the procuring agency is to do is to merely collaborate with such bodies instead of shouldering all the costs of meeting the urgent needs. Finally, procuring agencies are mandated to fulfill their duty of care to the suppliers they contract. An emergency should never be used as a justification for breaching the duty of care to suppliers. Public agencies are required to take cautionary measures to ensure that the duty of care to suppliers is safeguarded.

Accountability in Emergency Procurement Public agencies in NZ are cautioned against conducting themselves in a manner that is not aimed at ensuring there is accountability even when responding to an emergency. Accordingly, the guidelines provide that the public agencies should seek to first contain the situation to an extent where there is no immediate danger to life or property. After managing the situation, the public agencies are tasked to establish governance and management structures within which procurement activities can be coordinated and authorized. In emergencies, the risks of inflating prices, engaging in fraud, bribery and other forms of corruption are heightened. Therefore, procuring agencies should reasonably anticipate this and have an action plan to guard against the same. Moreover the procurement agencies are expected to be aware that during emergencies, conflict of interest may arise and therefore, it is incumbent upon the procuring entities to manage these conflicting interests lawfully. Upon addressing the urgent need arising from an emergency, public agencies are tasked with documenting all the goods, services or works that were procured during the emergency. The records should indicate that the procured goods, services or works were purchased in an emergency and record the facts and surrounding circumstances that justify the direct or single source procurement. The records shall then be available for the public to peruse through to keep the procuring agencies accountable. The guideline dictate that direct procurement as a result of an emergency is subject to auditing just like all the other methods of procurement. Therefore, public agencies have to conduct themselves responsibly and justly in the same manner as they would in the event of a default procurement method such as open tendering. Where agencies that are subject to the Government Rules of Sourcing are exempted from the above processes. However, where these exempt agencies award a procurement contract above the prescribed value matrix or benchmark, the agency is mandated to publish on the government electronic tenders service why such procurement was conducted as an emergency procurement.

Classifications of Emergencies in New Zealand The guidelines classify emergencies in three levels that based on the imminence of the threat and the extent of harm that may be incurred if responsiveness or relief is delayed. The first level is referred to as the immediate response level, the second is the disaster relief and the third is known as the post-crisis reconstruction. However, some emergencies force agencies to respond at different levels in a span of time. In some emergencies, one level of response shall suffice. Prior to selecting a level of response, the public agency is tasked with reflecting on the appropriate response and couple it with the best possible procurement method in the circumstances. In doing so, the agencies have to strike a balance between all the relevant factors as aforementioned

Level One: Immediate Response Emergencies that are classified level require the most responsiveness. These levels are were the most reactive approach has to be taken in addressing the urgent needs. This is the most extreme level in terms of reactivity compared to all the other levels. Therefore it should be applied only where human life is threatened, there is a major catastrophe that threatens the environment or infrastructure for instance where there are oil spills, this approach may be taken. Further, this approach may be taken where delaying responsiveness would result in the deterioration of conditions or where the delay would cause grievous bodily harm to people, or if the delay would result in further damage to the environment or the community at large. This level of responsiveness has been applicable when a state of emergency is declared either locally or nationally. Practically, this level entails providing medical equipment to aid the hurt or injured. It may also involve the provision of food, water and shelter for victims. The guidelines dictate that common sense must be utilized in this type of procurement since the public officials will reasonably be under great pressure to provide solutions efficiently. Further, despite the agencies having the discretion to deviate from default public procurement methods, they are expected to demonstrate reasonability and good judgment in the acquisition of goods, services or works. The agencies are mandated to document the actions taken after containing the emergency situation.

Guidance on Level One Emergencies The guidelines give practical steps to conducting this type of procurement. The first step is for the agencies to acquire goods, services or works from suppliers. For this level of emergency, written contracts are not necessary. Subsequently, the agencies should request the suppliers for invoices upon stabilizing the situation. The agency should be keen to keep record of the goods or services purchased. Good judgment must be exercised throughout the process and the agencies must be prepared to provide rationales for all their actions in the circumstances.

Level Two: Disaster Relief This level of responsiveness is appropriate in a number of circumstances. For instance, it is appropriate where the threat to loss of life is not immediate, the threat to infrastructural damage is not immediate, upon the lifting of a state of emergency and where normal procurement processes would not suffice in delivering effective relief. The agency concerned is mandated to identify and prioritize the immediate procurement that is needed to deliver effective relief. In doing so, the agency ought to be alive to the conditions in the operating environment. Moreover, the agency should ascertain whether there are any government agencies or NGOs that have responded to the emergency. This enables the agency to offer to collaborate with such NGOs or government bodies. The agencies are to procure directly from the most convenient suppliers. Emphasis is laid on the immediacy and convenience of sourcing the needed goods and services, far above the pricing of the same. The agencies are required to seek approvals from the financial officers before proceeding with the purchases. The agencies are required to be keen in considering their sourcing options, they may purchase the goods, services or works from the supplier most commonly used by the government, and it may be from the suppliers that are already on the agency’s panel of contractors. Similarly, the agency may seek to use the suppliers that were initially appointed through a competitive process by another government agency, provided that such suppliers are capable of immediate delivery. Where the agencies cannot find existent contracts, they may find quotes that can be achieved fast and identify suppliers that are capable of delivering immediately. The MBIE recognizes verbal or e-mail quote as sufficient, in addition, it recognizes verbal quotes which are translated into written notes. The agencies are required to expressly inform the suppliers that the purchase is part of an emergency procurement that is aimed at providing immediate relief. Therefore, where the suppliers do not abide with this essential condition, then the contract may be rescinded at the option of the agency. The agencies are required to consider alternative solutions such as leasing for immediate short-term use as opposed to purchasing equipment expensively for one time use. The agreement with the supplier should be in writing. The MBIE provides template contracts for this purpose for more certainty.

Level 3- Post Disaster Reconstruction This level is also referred to as accelerated procurement. It is done once the emergency situation has been managed, or where the concerned procurement is critical in nature. Finally it can be used if the relevant agencies can justify departure from the default procurement methods. Where emergency events have been managed and stabilized, the public agency may now direct its efforts towards reconstruction after the disaster has been managed. In this situation majority of the purchases ought to be done through the default procurement processes. However, there are certain types of purchases such as of vital infrastructure such as water, and housing reconstruction among others where public agencies may choose to use an accelerated procurement method to procure the same. Accelerated procurement processes are tailor made to fit the particular category of procurement and urgent need. These processes afford the public agencies with more flexibility and responsiveness while at the same time allowing competition and maintaining accountability and governance for the expenditure. Even in using the accelerated procurement processes an agency is required to justify its departure from the regular procurement process.

Conclusion Indeed the New Zealand government has established a comprehensive emergency procurement framework that is characterized by efficiency, transparency, and accountability. The framework includes, among other things, pre-established contracts, emergency procurement procedures, and guidelines for supplier management. Furthermore, the government has implemented accountability measures to ensure that emergency procurement processes are auditable and that suppliers are fairly and equitably compensated. New Zealand’s emergency public procurement framework, even though comprehensive, can be improved further for instance, there is need for greater collaboration between government agencies coupled with more robust monitoring and evaluation mechanisms. Generally, New Zealand’s emergency procurement is advanced as it ensures effective emergency response while maintaining high standards of integrity. Conclusion and Recommendations This paper found that emergency procurement is essentially direct procurement undertaken with a view to meet urgent need that arises as a result of some emergency. Literature has classified emergencies differently specifying the variant methods that ought to be employed in meeting the needs in the various classes of emergencies. The paper found that needs may be urgent but they do not translate to urgent and therefore, procuring entities cannot justify the use of emergency procurement processes in such instances This Paper is on the effectiveness of the public procurement laws in Kenya in preventing corruption in emergency procurement processes. The Kenyan legal and regulatory framework is ineffective in curbing corruption in emergency procurement processes. The PPRA has adopted the public procurement manual for the health sector; a manual that was created by the defunct PPOA. This presents a number of problems, first, this manual is based on repealed laws as it repeatedly refers to the repealed Public Procurement and Disposal Act, 2005 and the Public Procurement and Disposal Regulations 2006. Second, the manual limits its provisions on emergency procurement, to the health sector alone. This is problematic and indeed futile considering the PP&AD Act, 2015 envisages a vast array of emergencies such as natural disasters, war, invasion or any other occurrence that gives rise to an urgent need for goods, works or services. Finally, the Paper considered the best practices and strategies for preventing corruption in emergency procurement processes. This paper has made the finding that New Zealand has some of the best practices in emergency procurement. In light of the fact that this paper is concerned with the prevention of corruption, NZ is relevant on this because it ranks highly for the effectiveness of its anti-corruption measures in procurement. This paper has found that the success of New Zealand in curbing corruption within its borders is directly attributable to the comprehensiveness of its laws and guidelines which in effect limit discretion of public agencies. Furthermore, the comprehensive nature of its laws ensures that there is transparency and that the public agencies are held accountable. New Zealand public procurement instruments are truly aspirational and Kenya can borrow instrumental lessons therefrom.

Recommendations In light of the findings outlined above, this paper makes the following recommendations: 1.	Planning ahead: The Kenyan government should develop an emergency procurement plan in advance of any emergency situations. This plan should outline the procedures to be followed, the roles and responsibilities of key personnel, and the necessary resources required for procurement activities. 2.	Identify critical goods and services: The government should identify the critical goods and services needed during an emergency, such as medical supplies, food, water, and shelter. This will help prioritize procurement activities and ensure that the most urgent needs are met. 3.	Consider alternative sources: The Kenyan government should consider alternative sources of goods and services, such as local suppliers and international organizations. This will help ensure a reliable supply chain and reduce dependence on a single supplier. 4.	Fast-track procurement processes: The government should streamline the procurement process to ensure that goods and services can be acquired quickly. This may involve reducing the number of approval stages, relaxing documentation requirements, and expediting payment processes. 5.	Monitor and report: The Kenyan government should monitor procurement activities closely to ensure that they are being carried out effectively and efficiently. Regular reporting on procurement activities and outcomes can help identify areas for improvement and ensure transparency. 6.	Prioritize local suppliers: Where possible, the Kenyan government should prioritize local suppliers for emergency procurement to support local businesses and ensure that goods and services can be delivered quickly. 7.	Maintain competition: Emergency procurement should not be used as an excuse to avoid competition. The Kenyan government should ensure that emergency procurement processes include competitive elements such as a request for quotes or proposals to ensure value for money. 8.	Use digital procurement tools: The Kenyan government should invest in digital procurement tools to help streamline emergency procurement processes and ensure transparency and accountability. 9.	Plan for post-emergency procurement: The Kenyan government should plan for post-emergency procurement to ensure that goods and services acquired during the emergency are properly managed and disposed of once the emergency is over. 10.	Train procurement staff: The Kenyan government should provide training to procurement staff on emergency procurement policies and procedures to ensure that they are equipped to respond quickly and effectively to emergencies.

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