The nation should not be fed false expectations about the Public Procurement Commission

Oct 08, 2013 Features / Columnists, Peeping Tom

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The government has always held exclusive jurisdiction for the award of public contracts. And this is how it should be. It is unheard of in any part of the world for a constitutional commission to award contracts and to be responsible for executive functions.
However, it seems as if there are forces out there who either do not understand the law or are conveniently trying to create the impression in the minds of the public that because there is supposed to be, both in law and under our Constitution, a Public Procurement Commission (PPC), that so long as this body is constituted, it removes from the government the responsibility for evaluating bids, making awards and reviewing those awards.
This is not so at all. Even with the appointment of a Public Procurement Commission, the government through the National Procurement and Tender Administration Board (NPTAB) remains responsible for administration of the entire procurement system.
The Procurement Act is far from silent on this issue. The legislation provides for the NPTAB to be appointed by the Minister of Finance and not by any Procurement Commission. The logic is clear here.
A constitutional commission cannot engage in executive functions, the NTPAB is a body of the executive arm of the State and is responsible to that arm.
The functions of the NPTAB are also provided by the Act. They relate to:
1) Exercising jurisdiction over tenders above a certain value, appointing a pool of evaluators and maintaining efficient records.
Pending the establishment of the PPC, the NPTAB is also responsible for
2)  Making regulations governing procurement.
3)   Determining the forms of documents for procurement to be used. These forms include bidding documents, prequalification documents, evaluation forms, manuals etc.
4)    Organizing training seminars regarding procurement.
The PPC is thus, by law, excluded from evaluating and awarding contracts. This responsibility remains, and rightly so, reposed in the Executive arm of the State, which is the government.
In fact, the Procurement Act is emphatic that upon the establishment of the PPC, the NPTAB retains responsibility for “exercising jurisdiction over tenders the value of which exceeds such an amount prescribed by regulations, appointing a pool of evaluators for such period as it may determine, and maintaining efficient record-keeping and quality assurance systems.”
In effect, the government still controls the award of contracts, even with the Public Procurement Commission. The public therefore needs to be disabused of the idea that upon its formation the PPC somehow takes over the process of public procurement.
The Public Procurement Act also envisages a role for Cabinet in reviewing contracts in excess of fifteen million dollars, but notes that with the PPC, this role should be progressively phased out.
This seeming contradiction is said to have been caused because of the movement of an amendment made from the floor during the debate.
The fact that the Act has one clause that speaks to a role for Cabinet and another that states that this role should be phased out only demonstrates the importance of Bills being thoroughly checked for such contradictions before they are assented to.
It is quite unusual and awkward from the point of view of legislative drafting for such language to be incorporated into an Act. Also, the Act itself does not legislate or specify how the proposed diminished role for Cabinet should take place and thus in the absence of a clarifying amendment it remains a statement of intention and a declaratory provision.
With a battery of lawyers in its ranks, it seems strange that the AFC does not recognize that the PPC Act does not abrogate, from the government, the right to exercise jurisdiction over the determination and award of public contracts nor does it, by law, reduce the powers of Cabinet to review such contracts.
Despite this, the perception is being fuelled that with the PPC, the role of Cabinet in the procurement process ceases. This clearly cannot happen.
The NTPAB is an agency of the Ministry of Finance. Its members are appointed by the Minister and it is the Minister that is responsible to parliament for this body.
In such circumstances, it would be a bizarre situation if Cabinet has no role in the award of contracts in the country.
This would mean that the Minister of Finance, who is accountable to Cabinet, would have no control over a non-autonomous agency within his Ministry.
It would represent a grave anomaly if the Cabinet, and by implication the government, has no role in the review of contracts.
If such a state of affairs were allowed, it would mean that the NTPAB would in effect be more powerful that the Minister of Finance to whom it is accountable and also more powerful than Cabinet to whom the Minister is responsible.

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