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Special Memo to the President: Constitute
Council on Public Procurement Now!
By Mohammed B. Attah
Newsdiaryonline Sun June 5,2011
Civil
society activist and public procurement advocate Mohammed Attah
has called on President Goodluck Jonathan to expedite action
towards constituting the National Council on Public
Procurement.Although the necessary laws to facilitate due
process in procurement matters are in place,the absence of a
council remains a lacuna.
``Despite all this extant laws and the
guiding principles for public procurement, it is regrettable
that the late President could not INAUGURATE THE COUNCIL NOR
APPOINT A DIRECTOR GENERAL for the Bureau as required by law
before his death.
And this has remained the position since June 2007. It is on
record that the late President Yar’Adua appointed the present
Director General of the Bureau in July 2007 illegally without
following the provisions of the law (due process), for
4years expiring in July 2011'' Attah said in a
special memo to president Jonathan
Read the the memo made available to
Newsdiaryonline:
Below is an abridged and revised version of a Special Memo sent
to President Goodluck Jonathan before his inauguration on May 29
and released in commemoration of the 4th Year Anniversary of the
Nigeria Public Procurement Act signed into law on June 4, 2007
May 09, 2011
His Excellency,
Dr. Goodluck Ebele Jonathan, GCFR
President and Commander-in-Chief
Federal
Republic of Nigeria
Aso Rock Villa, Abuja
Your Excellency,
ISSUES FOR CONSIDERATION BEFORE OR AFTER TAKING OATH OF OFFICE
ON MAY 29, 2011
Congratulations on your recent election as the President of the
Federal Republic of Nigeria. No doubt, your election did not
only represent a unified voice of the whole country, it serves
as a rallying point for Nigerians to bring about the desired
change. I wish you a successful tenure of true democracy through
transparent and inclusive governance.
CAMPAIGN PROMISE OF PRESIDENT GOODLUCK JONATHAN
Though there were several campaign promises made by the
President during the February – April 2011 Presidential
Campaigns, few of such can hardly escape the minds of millions,
especially when they border on our national growth and
development. Even though many have argued that the campaign
promises are a shade too many, I have chosen to hinge my
argument ONLY ON ONE of such promises. Excerpt:
‘Economy to be driven by Professionals, Says FG –
As reported on 13 April
2011, Thisday Newspaper. The news item is reproduced below:
“President Goodluck Jonathan Tuesday said he would use Nigerian
professionals home, abroad and the private sector to jumpstart
and drive the Nigerian economy if voted back to power in the
Presidential polls holding weekend across the country. He stated
at a breakfast meeting with the business community in
Nigeria
at the Transcorp Hilton Hotel
Abuja
which forum endorsed him for Saturday elections that any leader
worth his salt must be people oriented by pandering to the needs
of those he is leading.
"Everybody who wants to lead this country will always say, my
interest on the economy. Without making the economy vibrant, you
cannot talk about poverty alleviation, education, building of
roads and other infrastructure. My interest is to see how we
make the economy vibrant", he said.
"If you fix the economy, job must come and that's why we are
emphasizing on agriculture. We must revive all our irrigations
because without that we cannot get agriculture right. I believe
in the next four years,
Nigeria
must stop importing rice. Even if we are not exporting it, we
must be able to produce for local our consumption because it
will help the economy. The money we spend on rice importation
annually is huge. We must do something about it", he said.
Earlier in his address at the endorsement, Chairman of the
ceremony, Oba Otudeko said they hoped he would stabilize power,
enhance education and generate employment. He also stressed the
need for good governance anchored on the rule of law,
accountability and transparency in governance.
He noted that, "Free enterprise can only thrive in a just and
stable society where security of lives and property are
guaranteed. Needless to state that now, more than ever before,
the menace of corruption in our society must be mortally
exorcised for good".
No informed
Nigeria
will argue that in the past, most electoral promises never see
the light of the day. Today the question that is on the lips of
many ‘is what will make the Goodluck Jonathan-Namadi Sambo
ticket different from others before them?’
The biggest challenge before us therefore is to hold
governments accountable to their promises.
Nigeria
is burdened with one of the world’s most unaccountable
governments (Transparency International 2007), this is making
corruption a difficult task to eliminate, and has made it more
difficult for a good relationship to exist between the
government and citizens. Thus, the idea and need to develop
efficient and effective tools in holding governments accountable
emanate from this phenomenon; such tools as exemplified in the
past and vested in the civil society and the media, will commit
the leaders – by any means possible – to consider it obligatory
to provide accurate, timely and clear reports of her activities,
especially in public procurement.
This concept is described in professional circles as
Social Accountability Mechanisms (SAM), which is also referred
to as “external” or “vertical” mechanisms of accountability.
The bulk of corrupt practices in
Nigeria
today are linked to public procurement, which accounts for about
70% of government daily activities (see
August 2009 CSO Report on Public Procurement Process in Nigeria).
The continuous low rating of
Nigeria
by Transparency International (TI) and other international
anti-corruption organizations, among the most corrupt nations of
the world are also located within the
ambit of weak governance embedded in a weak public procurement
system that has blighted the development of many parts of Africa to date.
THE LINGERING ISSUES
In my letter of January 10 to the Minister of Finance, the
Central Bank Governor and the Managing Director of Asset
Management Company of Nigeria (AMCON), I maintained that while
the Ministry of Finance is responsible for
fiscal policies such
as that of AMCON, the CBN is responsible for the
monetary policies
and the National Council on Public Procurement has
the responsibility for the
policy on procurement.
These are the three (3) major policies guiding our economy
and most of advanced nations.
For our understanding of the above, let us
review the establishment of the Bureau of Public Procurement
(BPP), an agency of government saddled with the responsibility
of certifying, regulating, processing
as well as auditing public capital and recurrent expenditure
that accounts for about 70% of the total annual national budget.
1.
The National Council on Public Procurement
It should be noted that the procurement
Act did not only established the National Council on Public
Procurement (NCPP), it gave the Council the authority to
superintend over the BPP at the policy level. Indeed,
the BPP serves as the Secretariat of the Council thus BPP cannot
effectively exist without the Council. By the Act, it was
expected to have been the first organ of the procurement process
to be constituted and it is on the basis of its existence that
other organs are created. Reading from the Act, the Council has
the following functions:
(a)
Consider, approve and amend the monetary and prior review
thresholds for the application of the provisions of this Act by
procuring entitles;
(b)
Consider and approve the Federal policies on public procurement;
(c)
Approve the appointment of the Directors of the Bureau;
(d)
Receive and consider, for approval, the audited accounts of the
Bureau of Public Procurement;
(e)
Give such other directives and perform such other functions as
may be necessary to achieve the objectives of this Act.
2.
The membership of the Council includes the following:
(a)
The Hon
Minister of Finance as Chairman,
and
full time Members as
(b)
The Attorney General and Minister of Justice of the
Federation
(c)
The
Secretary to the Government of the Federation
(d)
The Head of
Service of the Federation
(e)
The Economic Adviser to the President,
Six part time members to
represent;
(f)
Chartered Institute of Purchasing and Supply Management of
Nigeria
(g)
Nigeria Association of Chambers of
Commerce, Industry, Mines and Agriculture;
(h)
Nigerian Bar Association
(i)
Nigeria
Society of Engineers;
(j)
Civil Society;
(k)
The Media
The Bureau of Public Procurement (BPP)
as earlier stated shall
be the Secretariat and the
Director General, who
shall also
be the Secretary of
the Council, shall
be appointed by the
President, only after a
competitive selection process organized by NCPP (see sections
7(1) and 6(2) of PPA )
Despite all this extant laws and the
guiding principles for public procurement, it is regrettable
that the late President could not INAUGURATE THE COUNCIL NOR
APPOINT A DIRECTOR GENERAL for the Bureau as required by law
before his death.
And this has remained the position since June 2007. It is on
record that the late President Yar’Adua appointed the present
Director General of the Bureau in July 2007 illegally without
following the provisions of the law (due process), for
4years expiring in July 2011.
On the other hand t he
BPP was established as an offshoot of the Council with the
following objectives (Section 4 of PPA):
(a)
The harmonization of existing government policies and
practices on public procurement and ensuring probity,
accountability and transparency in the procurement process;
(b)
The establishment of pricing standards and benchmarks;
(c)
Ensuring the application of fair competitive,
transparent, value-for money standard and practices for the
procurement and disposal of public assets and services; and
(d)
The attainment of transparency, competitiveness, cost
effectiveness and professionalism in the public sector
procurement system.
3.
Therefore, for BPP to achieve the above objectives, the
statutory functions specified by law include the following among
others as specified under Section 5, 54 of PPA:
(a)
Formulate the general policies and guidelines relating to
public sector procurement for approval by the Council;
(b)
Publicize and explain the provisions of this Act.
(c)
Subject to
thresholds as may be set, by the Council, certify Federal
procurement prior to the award of contract
(d)
Organize training and development programs for procurement
professionals
(e)
Periodically review the socio-economic effect of the policies on
procurement and advise the Council accordingly.
(f)
Prevent fraudulent and unfair procurement practices and
where necessary apply administrative sanctions.
(g)
Perform procurement audits and submit such report to the
National Assembly bi-annually;
a.
Coordinate relevant training programs to build institutional
capacity and in accordance with Section 54 of the PPA, to sit as
an Administrative Body (quasi-Judicial body) to make
administrative decisions in respect of disputes between bidders
and MDAs on procurement proceedings which can only be challenged
based on citeriori,
on an appeal filed at the Federal High Court.
It is instructive to note that the appointment of the Director
General of the Bureau and other principal staff is NOT
POLITICAL but a STATUTORY requirement which should
only be performed by the President .The
power of the President to appoint
or renew the appointment of the Director General of BPP
is derived from section 7(1) of PPA when read together
with Section 5(1) of the 1999 Constitution (as amended) and
strictly based on the recommendation of the Council after a
competitive selection process. The mind of the legislature in
the above process can be surmised from the motto of the Bureau
that reads thus:
Transparency, Competition and Efficiency.
Your Excellency, on the recent appointment
of the Secretary to the Government of the Federation, (SGF)
Anyim Pius Anyim you charged him to ensure high integrity,
accountability and openness in the conduct of government
business.
Further you informed him to bring his wealth of experience to
bear in coordinating the incoming cabinet.
In conclusion, you
urged him to further the transformation agenda of the
administration which is the trust of this letter.
It is in the context of the above situation and our firm belief
in the Rule of Law and commitment to fighting corruption
in our country that we are now drawing your attention once again
to these
anomalies in our procurement issues that is hindering the
development of our economy and a major concern for the civil
society and the country at large. This we had since hoped
that your political appointees and aides, such as the
former
Attorney General of the Federation, the Secretary to the
Government of the Federation (SGF), the Economic Adviser to the
President and the Finance Minister would have found time
before now to
address and to guide
you on the right path.
4.
QUESTIONS FOR CONSIDERATION
Whether it is proper/legal for the
government to continue managing the nation’s procurement system
without the inauguration of NCPP and a legally constituted BPP?
The laws of
Nigeria
are clear that where there are clear express provisions of
statutes to be followed by the Federal Government to reduce
/eradicate corruption, it is the sacred duty of the Federal
Government/courts to give orders that will give effect to it.
(See Olatunji v. F.R.N. (2003) 3 NWLR (Pt. 807) 406 and State V.
Ajayi (1996) 1 [P. 231] paras. 5-15)
The Public Procurement Act 2007 and Chartered Institute of
Purchasing and Supply management Act (CIPSMN) Act 2007 are
special legislations of the National Assembly to curb corruption
and to improve on professional procurement practice in
Nigeria, thus it is the duty of
the government and our courts to give effect to the respective
special legislations of the National Assembly.
The Public Procurement Act (PPA) passed into law on June 4, 2007
remains one of the strongest anti-corruption strategies that
have not been fully tested to date. Rather than apply the
provisions of the Act, some politicians have succeeded in making
government ignore the content and called for amendments.
You will recall that even the
immediate past National Assembly at some stage began to demand
that their Principal Officers be allowed to regulate/certify
contracts in parallel lines with the BPP and independent of the
Executive.
Ironically and true in context, since the signing into law of
PPA, all the procurement issues and activities
through BPP
have been classified in some quarters as illegal due to
the absence of the National Council on Public Procurement
(NCPP), the administrative body saddled with the of driving the
process in Nigeria. Rather than solve some of the
misprocurement, the
actions of the government have created more problems and thus
cast doubt on her readiness to fight corruption.
Therefore it is not only improper; it
is illegal and represents constitutional crises for the
Nigerian government to continue to manage the procurement system
of the country without the inauguration of NCPP and a legally
constituted BPP
Whether it is proper or legal for the
President to appoint a substantive Director General for BPP with
effect from July 2011 or to renew the illegal tenure of the
present Director General for another four (4) years without the
inauguration of the National Council on Public Procurement
that is required to advertise the position for a
competitive selection process
as required by law?
Here, it is a clear
natural law that a child cannot be born before the mother.
The illegal tenure approved by late President Yaradua
and inherited by
President Jonathan will expire in July 2011
and requiring the
inauguration of the National Council on Public Procurement that
will conduct competitive selection process before a
reappointment or appointment by the President that will be free
from legal tussle.
Section 16(1) of PPA
(under the
Fundamental Principles for Procurement) says that ‘Subject
to the prior review thresholds as may from time to time
be set by the Bureau and pursuant to section 7 (1),
procurement in Nigeria’s public service can only take place
based on
procurement plans supported by prior budgetary appropriations;
and no procurement proceedings shall be formalized until the
procuring entity has ensured that funds are available to
meet the obligations and that, subject to the threshold
in the regulations made by the Bureau, has obtained a
“Certificate of No Objection” to contract award from the Bureau.
This therefore means that if there is no DG appointed in
accordance with section 7(1), procurement processes are
not required to take place without the
attendant risks and illegalities
The judiciary in Nigeria will not be happy to hear any party
“jumping the gun” on a statutory or indeed on any issue (see the
decision of the Supreme Court in the case of Akintemi V Prof.
Onwumechili(1985) CLR 1(b 0 (SC). The
minimum qualifications established by law for the post of
DG are that the candidate:
1.
Must hold adequate professional qualification in
procurement for a minimum of 15 years (see 7(2) (c) of PPA;
2.
Also simultaneously hold relevant
professional qualification in procurement for a minimum
of 15 years (see 7(2) (C) OF PPA;
3
Be a
member of CIPSMN qualified by examination (see 11(9) of CIPSMN
Act 2007)
4.
The CIPSMN Act also specified in Part IV Section 8 and
Part V section 2 (b)(ii)
of that foreign trained professionals in Procurement who
wish to practice in Nigeria are required to “within
12 months after the commencement of the Act, seek registration
with the Institute to become members”
Section 7(1) of PPA states the procedure for appointment thus:
There shall be for the Bureau, a Director-General who shall be
appointed by the President on the recommendation of the Council
after competitive selections.
This therefore means
that a DG of BPP as envisaged by law, cannot emerge before the
NCPP.
The Supreme Court ruled in the case of Ogbonna V AG of Imo
State(1992) CLR 2(b) on the 7th on February 1992 that
non observance of a statutory provision on a substantive issue
is not capable of being
waived and when
such non observance occurs, it renders the act illegal,
null and void and of no effect.
In view of the above it is not
in the interest of the President to appoint a substantive DG for
BPP with effect from July 2007 or to renew the illegal tenure of
the present DG for another term without the inauguration of the
National Council on Public Procurement that is required by law
to advertise
the position for a competitive selection process.
Whether contracts awarded by the Federal
Government since June 2007 are legal, in the absence of duly
issued ‘No Objection Certificate’ and constitution of the
National Council on Public Procurement?
Section 16 (1)(4) states that
“subject to the prior review thresholds as may be set by the
Bureau, any procurement purported to be awarded without a
“Certificate of No Objection’ to contract award”
duly issued
by the Bureau shall be null and void.
This implies that since only the National Council shall
consider, approve and
amend the monetary and prior review thresholds for the
application of the provisions of this Act by procuring entities;
and recommend the appointment of DG to President, any
Certificate of No Objection so issued cannot be said to have
been duly issued
by the Bureau and thus making all public contracts since the
4th of June 2007, null and void.
Section 16(1) of PPA under Fundamental Principles for
Procurement states that “Subject to any exemption allowed by
this Act, all public procurement shall be conducted subject to
the prior review thresholds as may from time to time
be set by the Bureau and pursuant to section 7(1)
of PPA”
which states further that “there shall be for the Bureau,
a Director-General who shall be appointed by the President
on the recommendation of the Council after competitive
selections and since this provision is under the Fundamental
Principles for Procurement, it implies that
no Public Procurement can legally take place in Nigeria
until there is a DG
appointed by the President after the inauguration of the Council
and a competitive selection process conducted by the Council.
Whether or not BPP can have legal
jurisdiction to take administrative decisions that will be
legally binding on Bidders and MDAs in dispute over contract
proceedings without proper constitution of NCPP as required by
law?
Jurisdiction refers to
the
power or right of
a legal or
political agency to exercise its
authority over
a person, subject matter,
or territory.
In other words, jurisdiction over a person relates to the
authority to try him or her as a defendant.
Jurisdiction over a subject matter relates to authority derived
from the country's constitution
or laws to consider a
particular case/issue . Jurisdiction over a territory relates to
the geographic area over which a court/administrative body
has the authority to
decide cases.
The position of the law in
Nigeria
is that ‘if a person is not competent or has no jurisdiction to
do anything, anything that it does, no matter how correct or
regular cannot be valid. (See Shell Trustees (Nig.) Ltd v Imani
& Sons (2000) CLR 6(b) (CA).
In other words, when a
person lacks competence or jurisdiction to do anything, anything
that he or she does, no matter how correct or regular will be
invalid’.
This is why as explained by the Attorney General of the
Federation in the
Public Notice issued on March 24, 2011 on page 19 of Daily Trust
Newspapers, that, Dr.
Angulu was removed/sacked as the Acting Chairman of ICPC because
Government discovered that he does not have the
qualifications specified by law to hold the office of the
Chairman of ICPC, whether in acting or substantive position
and that
AIG Rose Abang Wushishi was appointed in compliance with section
3(4) of the ICPC Act (CAP C31,LFN, 2004)
which states
that ‘any person to
be appointed Acting or substantive Chairman of ICPC
shall be a person who has held
or is qualified to hold the office of a judge of a
superior court of record in Nigeria’
It is also in law that a defect in
competence to perform a function or hear an issue and take
decision is very fatal, for the proceedings. Without
competence the conduct is a nullity no matter how well
conducted and decided, the defect being intrinsic to
adjudication. See
Western Steel Works V Iron and Steel Workers Union (1986) 3 NWLR
(Pt30) 617 and Madukolo and Others V Nkemdilim and others (1962)
2 SCNWLR 314 (1962) 1 All NLR (Pt 4) 587 where it was stated in
page 595 as above.
6.
POWERS OF THE BPP AND THE CURRENT INHERENT CHALENGES
BPP as we all know
is an administrative
government agency
and a
procurement proceeding quasi-judicial body that
is empowered by law
under Section 54 of PPA to use
legal principles and procurement audit, to identify the
truth about wrongdoings
in procurement proceedings referred to them by bidders
and to identify the wrongdoers, hold wrongdoers accountable and
above all seek, as required in Section 4 of PPA, to ensure the
application of fair competitive, transparent, value-for-money
standard and practices for the acquisition and disposal of
public assets and services.
To enable the attainment of transparency,
competitiveness, cost effectiveness and professionalism in the
public sector procurement system, the harmonization of existing
government policies and practices on public procurement and to
ensuring probity, accountability and transparency in the
procurement process, and establish pricing standards and
benchmarks.
Under the law, it is also the duty of BPP to conduct a Public
Procurement Audit on any procurement proceedings in dispute
reported to them in compliance with Section 54 sub-section 4 of
the PPA 2007, and to respond within 21 days.
Where the Bureau fails to render its decision within the
stipulated time of 21 days, or the bidder is not satisfied with
the decision of the Bureau, the bidder may then appeal to the
Federal High Court within 30 days after the receipt of the
decision of the Bureau, or the expiration of the time stipulated
for the Bureau to deliver a decision in accordance with section
54 sub-section 7 of PPA.
The decision of BPP with respect to the above duties can only be
challenged on appeal under a judicial review process conducted
by the Federal High Court. Furthermore, and in accordance with
Section 6 (1) of the PPA the BPP is required to:
(a)
Enforce the monetary and prior review thresholds set by the
Council for the application of the provisions of this Act by the
procuring entities.
(b)
(b) Subject to paragraph (a) of this subsection, issue
Certificate of “No Objection”, for contract award within the
prior review threshold for all procurements within the purview
of this Act
(c)
From time to time stipulate to all procuring entities,
the procedures and documentation pre-requisite for the issuance
of Certificate of “No Objection’ under this Act; and
(d)
Where a reason exist: (i)
Cause to be inspected or reviewed any procurement
transaction
to ensure compliance with the provisions of this Act, (ii)
Cause to be inspected or reviewed any procurement
transaction
to ensure compliance with the provisions of this Act,
(e)
Debar any supplier, contractor or service provider that
contravenes any provision of this Act and regulations made
pursuant to this Act)
(f)
Call for such information, documents, records and reports
in respect of any aspect of any procurement proceeding where a
breach, wrongdoing, default, mismanagement and or collusion has
been alleged, reported or proved against a procuring entity or
service provider,
(g)
Recommend to the Council, where there are persistent or
serious breaches of this Act, regulations or guidelines made
under this Act for: The suspension of Officers concerned with
the procurement or disposal proceeding in issue; ii.
The replacement of the head or any of the members of the
procuring or disposal unit of any entity or the Chairman or
Chairperson of the Tenders Board as the case may be; iii. The
discipline of the Accounting Officer of any procuring entity,
the temporary transfer of the procuring and disposal function of
a procuring and disposal entity to a third procurement agency or
consultant; or any other sanction that the Bureau may consider
appropriate;
(h)
Call
for the production of books of accounts, plans, and documents
and examine persons or parties in connection with any
procurement proceeding;
(i)
Nullify the whole or any part of any procurement
proceeding or award which is in contravention of this Act; and
(m) Do such other things as are necessary for the efficient
performance of its functions under this Act;
In keeping with the content of Section 53 of PPA, the Bureau may
review and recommend for investigation by any relevant authority
any matter related to the conduct of procurement proceedings by
a procuring entity, or the conclusion or operation of a
procurement contract if it considers that a criminal
investigation is necessary or desirable to prevent or detect a
contravention of this Act as part of Public Procurement
surveillance. This means that BPP
is empowered to carry out continuous
close observation and collection of data or
evidence,
from any MDA in Nigeria
for a specified purpose of recommending wrongdoers for
prosecution by the EFCC, the Police, the ICPC or any other
relevant security and anti-graft agency in Nigeria. This means
that the BPP itself is an anti-corruption agency which must be
seen by the public as an equitable organization.
Above are enormous statutory powers that allow the BPP “to
identify the various infractions and the people who have been
involved in promoting such infractions, which may have given
rise to lack of fairness, collusion, non transparency of
contracts, fraud, conspiracy in contracts etc. It
is a criminal
offence under Nigeria law to participate in such
activities and
therefore I
strongly believe
that since its
decisions, conclusions and recommendations may affect the rights
and obligations of persons, amenable to the rules of natural
justice and
subject to judicial review by
certiorari
at Federal High Court,
the BPP
though not a court in the conventional sense, is an
agency of government that uses judicial principles to make
administrative decisions and therefore
needs to be properly constituted
to enable it have
legal jurisdiction to perform its functions .
The BPP must be seen
to be going to equity with clean hands.
As Justice Oputa of the Supreme
Court stated in the case of
Adekeye vs Akin-Olugbade (1987) CLR 6(c) (SC).
“He who comes to equity must come
with clean hands”. ‘Trustees cannot set-up any equitable remedy
in their favour because they have converted partnership property
into their personal use and their complaint suffers from a
radical and intrinsic fundamental vice. There hands are not
clean. Thus a BPP
that is illegally constituted cannot be an effective
anti-corruption agency as the Attorney General (AG) of the
Federation puts it, when removing the ICPC Acting Chairman, the
actions of a BPP without jurisdiction can be challenged by
bidders in court.
7.
OUR PLEDGE
We pledge on our part, as law abiding citizens and stakeholders
in the Nigeria
nation, to continue to remind the President and pursue this
issue with vigor and never to rest until the right things are
done to put our procurement system in the right path and which
in turn will put our economy on the right footing.
8.
CONCLUSION
The
Certiorari as we know, is basically an order which a court
of superior record issues (in this case, the Federal High Court)
or makes in the exercise of its supervisory jurisdiction and
directed to inferior courts, tribunals or bodies entrusted with
judicial or quasi-judicial functions in order to keep them
within the limits of jurisdiction allowed to them by the
enabling laws. The order of
certiorari removes
proceedings into the High Court for the purpose of being
quashed. In the case of BPP this extends to any judgment, order
or decision, made
by them
in respect of any dispute on procurement proceedings
between Bidders and MDAs
or between two bidders in any MDA, pursuant to section 54
of PPA. This therefore means that in line with the principles
laid down in the case of Gabriel Madukolu & Ors vs Jonathan
Nkemdilim (1962 1 All Nlr 1 and restated in the Case of Babale
Vs Abdulkadir (1993) 3 NWLR (PT. 281) page 253, BPP will
have no legal jurisdiction to take administrative decisions that
will be legally binding on Bidders and MDAs in dispute without
proper constitution of BPP /NCPP as required by law.
The BPP will only
be
competent to exercise
jurisdiction on
issues of Procurement disputes involving procurement proceedings
only when the
subject matter of the claim/dispute
is within the jurisdiction of the BPP and the President
of Federal Republic of Nigeria has
properly appointed the DG through the Council (after a
competitive selection process).
It is in consideration of the above and
the President’s declared commitment to the
Rule of Law
and anti-corruption
that our organization is once again drawing the President’s
attention to the illegal nature of the existing procurement
processes and the urgent need to address same. It is also
necessary to emphasize that the failure of the Federal
Government to implement its own law in this regard is not only
an embarrassment; it underscores the failure of the system to
advise the President appropriately.
Finally, we submit
that since the Supreme Court ruled in a judgment delivered on 4th
October 1991 by Justice Nwokedi in
the case of
Agbai v Okogbue (1991) CLR 10(a) (SC) that the
Principles of rule of
law
are, ( a ) The absolute supremacy of law as opposed to
the exercise of arbitrary power; (b)
Equality of persons before the law; and
(c) That the
constitution is the result of the ordinary law of the land as
interpreted by the courts.
9.
RECOMMENDATIONS
1.
Constitute and inaugurate the National Council on Public
Procurement in accordance with Section 1 of the Public
Procurement Act 2007 to promote good governance especially in
the economy, power, security, electoral process, security,
infrastructure, and to encourage the fight against corruption.
2.
Advertise the position of the Director General of the Bureau of
Public Procurement in accordance with Sections 7 (1), 7 (2)(c)
of the Public Procurement Act and Section 11(9) of the Chartered
Institute of Purchasing and Supply Management Act 2007.This will
promote rule of law and due process in a procurement due process
and also encourage the
use of procurement technocrats and professionals as obtained in
international best practices.
10.
STATUTORY AND STANDARD PROCEDURES FOR THE CONSTITUTION
AND INAUGURATION OF THE NATIONAL COUNCIL ON PUBLIC PROCUREMENT
AND THE BUREAU OF PUBLIC PROCUREMENT
By virtue of the provisions of Sections 6 and 53 of the Public
Procurement Act 2007 (Powers of the Bureau and Procurement
Surveillance and Review), the Council and the Bureau are not
only responsible for regulating public procurement but also as
the Chief Security of the Nigeria public
procurement system.
Mr. President, with the Council and properly constituted BPP in
place,
rule of law and due process would have been followed and the
economic problem of the country greatly reduced.
Therefore, the President may be embarrassed if any
interested group decides to take the matter to the court for
adjudication. This we are hopeful Mr. President will want to
avoid.
God bless
Nigeria
Yours respectfully,
Mohammed Bougei Attah
Managing Editor/Project Facilitator, NGO Network
National Coordinator, Procurement Observation and Advocacy
Initiative
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