Mohammed Shosanya
Mohammed Bougei Attah, Procurement Professional and National Coordinator, Procurement Observation and Advocacy Initiative,says the recent circular that originated from the office and signed by the Secretary to the Government of the Federation, SGF, Senator George Akume titled “Operationalization and Development of Federal Government Contract Administration System (FCAS) for MDAs” is a clear violation of existing law on contract management and administration.
The circular which according to the memo is “..to protect Government from entering potential flawed and unfavourable contracts leading to litigation at great cost..” is in fact doing the opposite,Attach maintained in a statement sent to Premium News on Tuesday.
According to him,the circular did not only undermine and usurp the statutory roles and responsibilities of the Bureau of Public Procurement, BPP, it also potential put the office of the Attorney-General of the Federation and Minister of Justice, AGF in an illegal engagement.
He also said,advising all MDAs to direct inquiries and clarifications on FCAS through the office of the AGF, via a special unit, the government has only succeeded in exposing the office to illegalities, contradictions and legal tussle that the SGF seek to avoid.
He noted that the BPP was established by Act No. 14 of 2007 to perform the oversight of contracts implementation which include the issuance of ‘No Objection Certificates’ to or for contracts award.
He said,while the Office of the SGF, AGF and the Bureau of Public Procurement, BPP have statutory roles in contract awards and implementations, the AGF cannot be seen to play the role of a party or be a judge in the process.
He also said,the role of the AGF in procurement or contract administration is limited to interpretation, defence and prosecution of contract issues or cases as the case may be.
The office in this case,he said,cannot be a party to the process and be a judge at the same time in the case of any legal challenge.
He said,Section 7 of the PPA 2007 specifically mandates the BPP to oversight and advice on contract implementation in Nigeria public sector, and this include ensuring that contract approvals at the level of threshold by the Federal Executive Council, FEC and all MDAs meet certain criteria to qualify for ‘No Objection Certificates’.
He explained that the Circular from the SGF is very unfortunate because it is an act of disobedience to the very law the office is to protect.
He added:”Why create a shortcut when it is a fact that a ‘No Objection Certificate’ by the BPP is a document evidencing and authenticating that due process and the letters of this PPA have been followed in the conduct of a procurement proceedings and allowing for the procuring entity to enter into contract or effect payments to contractors or suppliers from the Treasury?
“It is important to note that “evidencing” that follows the word certificate in the definition serves as a proof of the fact while the word “authenticating” that also follow refers to giving a legal authenticity or authority to the procurement proceeding so certified.
“Further it is to confirm that the person who signed the certificate is qualified and fit, or proper officer designated to do so by law in accordance with Section 7 and 59 of PPA 2007, as well as Sections 11(9) and 20 of the CIPSMN Act 2007.
“The BPP though not a court in the conventional sense, is an independent, quasi-judicial agency of government that uses judicial principles to make administrative decisions and therefore is required by law to be properly constituted to enable it have legal jurisdiction to perform its functions. To create a “new law” therefore through a directive of circular is a direct route and opening for abuse of law, impunity and corruption.
“It should be stated here again that Procurement (contract) corruption alone accounts for over 70% of total corruption in the public sector. This recent Circular therefore lacks merit and a clear violation of the PPA 2007.
It is on record that for over 10 years, after the enactment of PPA 2007, we have consistently pointed out that the errors in the Act is purely implementation. And to correct the gaps and humongous corruption issues in contract management in Nigeria, the government need to implement Part 1, Section 1 of the PPA 2007 as well as Section 11(9) and Section 20 of the CIPSMN.
“The simple solution is to constitute and inaugurate the National Council on Public Procurement, NCPP on one instance, and to constitute the BPP in accordance with provisions in Section 16 of the Act, read together with Section 19 of the Chartered Institute of Purchasing and Supply Management Act 2007. Anything short of this steps will continue to take Nigeria backwards, undermine the efforts in the fight against corruption and increasing economic downturn”
