BPP: A New Anti-Corruption Agency
BPP? What is in a name? Few years ago, the
words ICPC, EFCC and NEITI would have sounded gibberish. Today they are
the anticorruption watchdogs created by the administration of President
Olusegun Obasanjo. Their activities might have influenced the improved
rating of Nigeria in the recent Corruption Perception Index (CPI).
Though Nigeria is ranked 147 out of the 180 countries assessed, it is
not amongst the 10 highly corrupt nations considering its first position
as the most corrupt nation in 2003, second in 2004 and third in 2005.
The Public Procurement Bill was the first
assented to by President Umar Musa Yar’Adua on assumption of office,
precisely on June 4, 2007 which was the last bill passed by the previous
National Assembly in May 2007. The Act establishes the National Council
on Public Procurement and the Bureau of Public Procurement (BPP).
The passage of the bill is one of the
success stories of the collaboration of media and civil society groups
most especially through the Civil Society Legislative Advocacy Centre (CISLAC)
which has been in the forefront in the campaign for the enactment of
transparency laws in the country including the latest Act and that of
NEITI. The effect of the Act may soon down on many Nigerians when they
realized the implication of the law as it has maximum penalties for
fraudulent contractors and public officers in the award and execution of
contracts ranging from jails terms without option of fine and exclusion
from engaging in any procurement business in Nigeria for a number of
years.
While its Council is chaired by Finance
Minister to consider and approve policies on public procurement, the
Bureau is headed by Director General to formulate the general policies
and guidelines relating to the public procurement. Essentially the
functions of the Bureau is to monitor the prices of tendered items and
keep a national database of standard prices; publish the details of
major contracts; prevent fraudulent and unfair procurement and where
necessary apply administrative sanctions while maintaining a national
database of the particulars, classification and categorization of
federal contractors and service providers.
The Bureau is created to establish pricing
standards and benchmarks. It would ensure the application of fair,
competitive, transparent, value-for-money standards and practices for
the procurement and disposal of public assets and services. These are
for attaining transparency, competitiveness, cost effectiveness and
professionalism in the public sector procurement system.
The Bureau is empowered to issue
certificate of “No Objection” for Contract Award; cause to
be inspected or reviewed any procurement transaction to ensure
compliance with the provision of the Act; debar any supplier, contractor
or service provider that contravenes any provision of the Act and
regulations and publish the list of defaulters… It may call for
information in respect of any breach, wrongdoing, mismanagement and
collusion against procuring entity or service provider. It may also
recommend to the council the suspension of officer concerned;
replacement of head or Chairperson of tenders Board, discipline of
Accounting Officer, temporary transfer of procuring and disposal
function of an agency of government to a third party agency or
consultant and/ or any other sanction that the Bureau may consider
appropriate.
One of the major fundamental principles of
the Act is that henceforth all procurement would be conducted based only
on procurement plans supported by prior budgetary appropriations and no
procurement proceedings shall be formalized until the public institution
has ensured that funds are available to meet the obligation after
obtaining a certificate of no Objection. The service
provider may be a natural person, a legal person or a combination. All
bidders in addition to requirement contained in solicitation document
shall possess professional/technical qualification, financial
capability, relevant infrastructure, adequate personnel and legal
capacity. It should not be in receivership or any form of bankruptcy,
obligation to pay taxes and that they don’t harbor convicted criminals
as directors.
The Act also provides that a contract
shall be awarded to the lowest evaluated responsive bid from the bidders
substantially responsive to the bid solicitation. It must also be
conducted by open competitive bidding.
In an effort to encourage competent local
contractors and manufacturers, a government institution may grant a
margin of preference in the evaluation of tenders when comparing tenders
from domestic bidders with foreign bidders. This is also applicable to
goods produced locally.
There is a condition on mobilization fee
as only 15% may be granted on the provision of unconditional bank
guarantee or insurance bond. There is also penalty for non-prompt
payment to contractors after the execution of job. Any payment due for
more than sixty days from the date of submission of invoice and
valuation certificate shall attract interest at the rate specified in
the contract document.
The law provides ten stages before a
contract award could be considered. The processes are in this order:
advertisement and solicitation for bids; invitation of credible persons
as observers that may include private sector professionals, and NGOs
working in transparency areas; receipt and evaluation of the bids;
obtaining approval; debriefing the bid losers; resolving complaints;
obtaining and confirming the validity of performance guarantee;
obtaining a Certificate of No Objection; executing all contract
agreements and announcing the award.
The law has a provision that promotes
principles of freedom of information as it states that all unclassified
procurement records shall open to inspection by the public at the cost
of copying and certifying the documents and every agency shall maintain
both file and electronic records of all procurement proceeding for a
period of ten years from the date of the award. This provision gives the
public right access to records on the proceedings.
Probably the area that some agencies may
exploit to cut corner is the provision for Direct or Emergency
Procurement where the processes can be ignored. The essence of this is
to patronize a company that has exclusive or the only provider in
respect of goods or service. Another consideration for the direct and
emergency procurements is where delay or through longer processes may
cause hazards and waste of funds.
The Act has a Code of Conduct for public
officers involved in public procurement. It states that the officer: “
shall maintain the highest standards of ethics in their relationships
with persons real or corporate who seek government commerce… by
developing transparent, honest and professional relationships with such
person.” The implication is that the officer shall not engage in
commercial transaction where his capacity as public officer is likely to
confer any unfair advantage – pecuniary or otherwise on him.” In
nutshell this is just to guard against a conflict of interest.
Accounting Officers, mostly the Permanent
Sectaries, Directors General or Officers of coordinate responsibility
would be held accountable and liable for prosecution for any lapse in
the procurement.
The Bureau has the power to review or
recommend for investigation any suspected fraudulent act in the
procurement process as there is tougher penalties against defaulters.
For instance it provides that any person who contravenes any provision
of the act commits an offence and is liable on conviction to a term of
imprisonment not less than 5 calendar years but not exceeding 10
calendar years without AN OPTION OF FINE. The offences here include
fraudulent collusive agreement, splitting of tenders for evasion of
monetary thresholds set, bid rigging, alteration of procurement
document, and using of fake documents amongst others.
While public officers have a minimum of
five years and summary dismissal from the service as punishments, a
company who commits an offence is liable on conviction to a cumulative
penalty of debarment from all public procurements for a period of not
less than 5 calendar years and a fine equivalent to 25% of the value of
the procurement in issue. It specifically added that “where any legal
person shall be convicted… every director of the company as listed on
its records at the corporate affairs Commission shall be guilty of an
offence and is liable on conviction to a term of imprisonment not less
than 3 calendar years but not exceeding 5 calendar years without an
option of fine.
The only exception of the Act is that it
would not apply to procurements at the other tiers of government (i.e.
states and local governments) and services involving national defence or
security unless with the express approval of the President.
The Bureau for Public Procurement may be a
new agency; it is actually a transformation of the Due Process Office,
which would assume the new statutory status with more powers. The only
problem I envisaged are if the conditions of service and remunerations
of officers are not protected and adequate enough, it may be extremely
difficult to guard them against the temptation of connivance for corrupt
practices.
This reality needs to be addressed while
we commend the new administration for rushing the promulgation of the
law and hoping its implementation would not be politicized in sparing
the sacred cows. I won’t say whether legislative arm at the federal
level is exempted from the statutory provisions which is supposed to
catch up with defaulters after the date it was signed into law, i.e.
June 4, 2007.
Yushau A. Shuaib
National Press Centre, Abuja
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