PPA 2007, Corruption and The Unresolved Capacity Gaps

On the eve of Eid al-Adha celebration, and in line with the powers vested on the President of the Federal Republic of Nigeria, in sections 5(1), 148 and 171 of the 1999 Constitution (as amended), Sen. Bola Ahmed Tinubu relieved and directed Mr. Mamman Ahmadu, the erstwhile Director General of the Bureau of Public Procurement, BPP to handover his position to the most senior Director at the Bureau. Following this directive, the most senior Director in the Bureau, Barrister Olusegun Omotola took over as the Overseeing Director General of the BPP according to reports. This is in line with FGN Circular of July 4, 2017.

Recall that on March 18, 2011, in a similar circumstance, the then President, Goodluck Ebele Jonathan sacked the acting Chairman of the Independent Corrupt Practices and Other Related Offences Commission, ICPC, Prof. Uriah Angulu from office via a letter signed by Abdullah Yola on behalf of the then Attorney General of the Federation and Minister of Justice, Mohammed Adoke, SAN.

The news of the sacking of Mr. Ahmadu as the Director General of BPP did not come as a surprise to many Nigerians, especially the stakeholders and practitioners in the procurement ecosystem. It was clear from his last outing, during his visit to the Chairman of the Economic and Financial Crimes Commission, EFCC, that he has indeed come to the end of his ostracized tenure. The declaration by the Chairman of EFCC, Barrister Ola Olukoyede during the visit that the Public Procurement Act (PPA) 2007 is not helping the Commission in the fight against corruption was a rude shock to the operators in the procurement circle.

It is also not a surprise that the Council for the Ease of Doing Business under the Chairmanship of the Vice President, Kashim Shettima scored BPP zero percent (0%) in the last review because it is clear that BPP is a quasi-judicial body, a regulatory agency that must be constituted properly for effective, efficient and statutory performances.

As one of the sunshine laws promulgated by the President Olusegun Obasanjo administration under the recommendations of the World Bank Country Procurement Assessment Report (WB-CPAR) 2000, as well as the Chartered Institute of Purchasing and Supply Management of Nigeria, CIPSMN Act concurrently in 2007, it is shocking that a lawyer and head of anti-corruption agency like EFCC could make such statement before the Director General of BPP without a counter response. This many viewed as a demonstration of lack of adequate knowledge of the matter. Some of us that have had good working relationship with the EFCC and ICPC decided to remain silent as it is evident that both leaders, BPP and EFCC are simply ignorant of the provisions of the PPA 2007. For the above reasons and to discuss the main topic of this write-up, it is healthy to leave that undeserved expression of “error” for now.

Now, after the June 15 pronouncement by the President, major newspapers and other media outlets across the country reported the removal of Mr. Ahmadu but little was reported about the new “Acting DG” of the Bureau. A visit to the website of BPP however gave more information about him. By virtue of the Federal Government, FGN Circular of July 4, 2017, the most senior Director in any Agencies of government takes over from any Director General that may be removed from office by whatever circumstances. In this sense, the Director is termed to be ‘overseeing’ the Agency until a substantive Director General is appointed.

So, what are the implications of the failure of government to observe rule of law as contained in the Public Procurement Act 2007, applied together with CIPSMN Act 2007, for the growth and development of the economy? The answers are many, and the facts are glaring. Ironically, all governments from the Musa Yar’Adua era to Muhammadu Buhari have observed the law in disobedience. Instead of fighting corruption, the cankerworm is on the increase daily, and we all pretend not to see it or playing lip service to the fight against corruption.

Research has shown that procurement corruption accounts for over 70% of total corruption cases in the system (See NGO Network Report on Corruption in the Public Sector 2010). While the anti-corruption bodies are daily fighting corruptions related concerns, procurement corruption appears to have defied all forms of logics, but the answer is simple but ignored.

Lack of capacity to interpret the laws, apply them and interrogate defaulters have been the bane of our large-scale corruption in public procurement. For example, there is no Procurement Audit Report that has been submitted to the National Assembly as required by law in Section 5(P) of PPA since 2007 because the BPP does not as at today have any competent and qualified person, as required by law, to sign a Public Procurement Audit report and lay same on the table of the National Assembly bi-annually as required in the above section of the law. It is exactly thirteen (13) years since this law was enacted and we are yet to address the huge gap in our quest to fight corruption.

To worsen the above situation is the absence of a National Council for Public Procurement, NCPP, as required in Part 1, Section 1 of PPA, to approve same Audit Report before it is submitted to the NASS. Yet year-in, year-out, we have Financial Audit Reports submitted by competent financial professional as the Auditor General of the Federation which serves as the reference point for financial and economic evaluation. Out of the three basic audits reports required for economic reforms, financial, physical and procurement reports, the last has not seen the light of the day. Yet, procurement alone accounts for the bulk of the corruption recorded in the system daily. Section 5(a), 5(p) and 2 (a) of PPA 2007 as well as Sections 16(1), 16(2) to (4) are very clear on the implications of functioning without these authenticated documents by the Council.

The law (PPA 2007) that provides for the establishment of NCPP was passed in 2007 by the National Assembly, 13 years ago, but the previous Presidents, pursuant to Sections 5(1), 148(1) 4(2) and 4(3) as well as S.171 of the 1999 Constitution failed to inaugurate the Council till date. President Umaru Musa Yaradua made an attempt in September 2007 to inaugurate this Council but this was cancelled when the members of the Council were seated because a report by the Chartered Institute of Purchasing and Supply Management, CIPSMN to the President in writing that BPP, submitted the name of a student member of the Institute to the then Secretary to the Government of the Federation, SGF without consultation with the Institute to confirm who is a member of the yet-to-be-inaugurated Council by the law.

By virtue of the provisions of section 5(1) and 148(1) of the 1999 Constitution as well as the Finance (Management Control) Act of 1958, only a National Council on Public Procurement with the Hon Minister of Finance as Chairman can consider, approve and amend the Monetary and Prior Review thresholds for the application of the provisions of Public Procurement Act 2007 by procuring entitles. So, by implications, the threshold presently in use without Council’s approval is illegal and not correct. The Council is required to approve contracts and Associations of partnership with the BPP which will facilitate the discharge of its functions and to go into liaison with relevant bodies or institutions at national and international levels for effective performance of its functions under the Act. By these provisions, the law envisages a Council before the Bureau (to serve as its Secretariat), but in the present circumstances, it is the Bureau without the Council. A case of a child without a father.

Flowing from the above and to bring this back to the main issue, though they are all related, let it be noted that the Director General of BPP recognized by law is expected to emerge after the Council is put in place to serve as the Secretary of the Council and not before. By implications, all the “Director Generals” appointed in the past for BPP can be described to have illegal occupied the office, since they were appointed in line with “Due process” of the law, also none of the appointees is a registered professional in Procurement and Supply Chain Management in compliance with the provisions of the CIPSMN and PPA Acts 2007, and now most recently, in compliance with the Presidential Executive Order No 5 of 2018 that requires all professionals operating in Nigeria to “be registered with their respective professional bodies before providing professional services, either in the public, private or the non-profit sector”. The powers of the Bureau as shown in Section 6 of PPA 2007 makes the DG of BPP the Chief Security Officer of the public procurement system of Nigeria. The responsibility is not only about procurement but is directly related to National Security, therefore the competence and qualifications of the Director General and other directors of the BPP is of vital and essential importance to Nigeria.

The powers invested in the BPP as a quasi-judicial body saddled with administrative authority or powers to adjudicate on procurement disputes subject to appeal at the Federal High court, is very important to Nigeria as a whole. It is instructive to note that the actions of BPP is amenable to judicial remedy. See Hartv Military Governor of Rivers State(W6) 11 SC 211 at 240 where the Supreme Court observed that; “Although the Military Governor was not sitting as a court “stricto sensu” , he was under a duty to ACT JUDICIALLY AND FAIRLY” and by the same principles laid down in the case of Gabriel Madukolu & Ors Vs Jonathan Nkemdilim (1962 1 ALL NLR 1 as restated in the case of Babale Vs Abdulkadir (1993) 3 NWLR (Part 281) Page 253 the BPP will only be competent to exercise jurisdiction on the powers vested in the body only when the BPP is properly constituted through a competitive selection process, and its composition and the qualification of its Director General and other Directors are in accordance with sections 7, 8, and 16(1)(b) of PPA and sections 11(9), 16(2) and 18 of CIPSMN Act 2007 and there is no other extrinsic factor affecting its jurisdiction.

It is also a fact of law reading the content of the provisions of section 5(1) and 148(1) of the 1999 Constitution as well as the Finance (Management Control) Act of 1958, only a National Council on Public Procurement with the Hon Minister of Finance as Chairman can legally receive and consider, for approval, the audited accounts of the Bureau of Public Procurement

The legal implication of this is that a Director General that is appointed by the President without the recommendation of the Council after competitive selection – as was the case in the last 13 years – is unhealthy for the nation. A person who lacks the adequate and relevant qualifications required by law should not hold office as head of a procuring entity if we follow the letters and content of Section 11(9) of the CIPSMN Act 2007. It states unequivocally thus: “A person shall not be entitled or engaged as the head of any Supply Chain Management of any organization unless he is a member of Chartered Institute of Purchasing and Supply Management of Nigeria, qualified by examination”. Thus, he or she cannot sign the Public Procurement Audit report statutorily required to be submitted to the National Assembly as carried out on all MDAs every 6 months by the BPP. Again, none of the Audit Reports has been submitted since 2007 (13 years after) that the law came in force.

For the records, it is instructive to note again here that the ‘No Objection Certificate’ one of the mandates of the BPP is a document to be issued to procuring entities upon application, “…evidencing and authenticating that due process and the letters of the Public Procurement Act 2007 (with specific reference to Sections 16, 18 and 19, and other relevant laws and regulations) have been followed in the conduct of Procurement Proceedings and allowing for the Procuring entity to enter into contract or effect payment to a contractor or supplier from the Government Treasury” In other words, from the Federation or Consolidated Revenue Account

While this article is not meant to undermine any person or professional bodies in Nigeria, the effort rather is to support them and the federal government in this trying period of uncontrolled procurement corruption cases in the public sector. Also with President Bola Ahmed Tinubu’s Renewed Hope Agenda, he will be the first President to have acted swiftly by sacking the former ‘Director General in the middle of his tenure and authorizing that the most senior Director oversee the affairs of the Bureau pending the appointment of an Acting Director General or substantive Director General.

This report it is believe will also be valuable to the anti-corruption bodies, such as ICPC and the EFCC. It will in particular provide deeper understanding of the challenges faced by the bodies in tackling procurement corruption cases by understanding the extant laws and the applications. It is hoped therefore that President will follow this advice judiciously to avoid the pitfalls of his predecessors

Mohammed B. Attah is a procurement professional and the National Coordinator of Procurement Observation and Advocacy Initiative, PRADIN, a select group of non-state actors trained under the World Bank-Federal Republic of Nigeria Economic Reforms and Governance Project 2010.

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