It is not uncommon for a national Public Procurement Authority (PPA) to be tasked with functions such as policy formulation, spearheading legislative proposals, coordinating procurement-related assignments internationally, general administrative & monitoring duties, publication & information, advisory & operations support, training and knowledge development.
In other instances, a national PPA may be vested with the authority to hear and decide complaints by way of review. A case in point is the Public Procurement Act of Ghana, 2003, (Act 663) as amended, which in section 78(4) grants the Board of the Public Procurement Authority of Ghana the power to carry out administrative reviews. Similar functions have been assigned to the Public Procurement Bureau of Latvia and the department of Contract for Malta.
However, the performance by a PPA of functions which can be described as ‘non-core functions’ together with their ‘core functions’ (GOV/SIGMA (2007)4) may give room for various questions by actors within the public procurement space.
The first issue that could confront such an arrangement is the question of ‘place and independence’ of a PPA. Independence here could be two-fold: independence from the procurement entities; and independence from the government/appointing authority.
A PPA, by exercising its core function, might have earlier undertaken functions by way of approval etc. in relation to a procurement entity for a particular procurement contract under review, which raises concerns as to whether it can freely and independently exercise its review function over a subject matter that it had earlier approved.
The second part of the concern regarding independence has to do with the place of a PPA within the hierarchy and how it can deflect attempts to control it, or interferences by superior officers or appointing authorities. In most cases, the PPA is a subordinate agency under a parent-ministry which itself carries out procurement activities – disputes arising from which may come before the PPA for review.
The concerns have been whether the PPA can adequately decide on such a matter and enforce same against its parent ministry, or another ministry which is of equal rank with its parent ministry. Another dimension to this is the question of appointer-appointee relationship existing between a PPA and government, which brings to the fore fears of a PPA’s ability to stay free from influences of the governmental machinery that appointed the head of the PPA – or in some instances set up the PPA’s review board, as pertains in Ghana.
A second concern that may come about when a PPA assumes the function of a complaints review body is the clash of its core function with the non-core function, thus a conflict of its review role with its advisory role.
The result is that a PPA trapped in this situation may lose sight of its core function and rather focus on the non-core function. This may come about when applications for review are increasing or when issues of review have attracted media attention or gained political currency. The PPA may – in its attempt to satisfy the public or its appointing political authority – direct so many resources, time and attention to these controversial issues of interest to the neglect of its core functions.
Another issue that could confront a PPA that handles complaint reviews is the conflicting role of a regulator/advisor and an adjudicator in the same matter; thus acting as a player and a referee in the same matter. Generally, a PPA is engaged in policy formulation, draft legislation, design of Standard Tender Documents as well as approvals of procurement entities requests for use of procurement methods and applicable thresholds.
The conflict of interest question arises when a particular procurement activity that has received a prior approval by the PPA is subject to review before the same PPA. This has a tendency to affect the credibility of such PPAs, especially when its ruling at the end of a review merely confirms the award that is being challenged is not well-grounded in law, giving an impression of partiality.
Additionally, when a PPA acts as a complaint review body there may arise questions of due process, probity and accountability in the exercise of such duties. In many developing jurisdictions where there is a dearth of expertise and knowledge of the public procurement laws, the PPA is basically the lead agency and thus acts within the public procurement space both as ‘maker’ of the rules as well as ‘decider’ of any claim of infringement of those rules.
In the face of this scarcity of knowledge/awareness of these rule by most actors, a PPA could undertake its review as it finds suitable regardless of any of the parties’ ability to point out an error in its determination – especially if the challenged matter affects its parent-ministry or appointing authority.
In such cases, therefore, the applicants – who are mostly private sector actors with no or little knowledge of the rules – are at the mercy of the PPA. In such cases, the challenging party may not be able to point out any procedural breach or incorrectness of the ruling.
Concerns could also be raised regarding a PPA’s capacity to make quasi-judicial decisions. Where a PPA acts as arbiter, issues of abusing discretionary powers as well as the capacity of PPA officials to effectively execute such quasi-judicial duty may be raised.
One fundamental feature of quasi-judicial bodies is the use of discretion, which when not correctly exercised could give rise to a challenge before the courts. The vesting of this power in a PPA could open the floodgates for courtroom litigation – with its attendant delays to the whole procurement system if the entrusted power is not exercised correctly.
Further, issues of availability and capacity of human resource may confront a PPA in its review duties. With the introduction of public procurement reforms comes the need for regulating public procurement by PPAs; however, such reforms are yet to adequately make the desired impact within some jurisdictions – especially in Africa, partly due to the lack of experienced and skilled cadres of procurement professionals.
Consequently, PPAs in these countries are affected since they are not properly staffed with officials who are well-positioned to effectively discharge the PPA’s mandate. Dispute resolution is a sensitive matter that calls for competence and integrity of the official in charge, both of which depend on skills, experience and continuous training – unfortunately lacking in most countries.
Issues of Funding may confront a PPA in its review duties; in most jurisdictions PPAs receive their income from the budget allocation of their parent-ministries, which in turn release funds to the PPA upon request, or at a centrally agreed interval for all state agencies.
With this arrangement, a PPA’s review activities – which don’t come about by way of an agreed timetable but as and when a disagreement arises and an application for review lodged – could suffer setbacks; especially when a particular enquiry calls for a detailed investigation that requires logistical commitments. Also, when the PPA is not financially independent it could be subject to manipulation by the ministry that controls its budget – or even applicants/petitioners or agencies whose decisions are being challenged; especially when such parties to the dispute offer to assist by way of budgetary support or logistically, either covertly or overtly.
The effectiveness of complaints review duty for a PPA could also be called to question depending on the size and complexity of the public procurement market. When the number of complaints received by a PPA outstrips its human resource strength, the speed and effectiveness with which complaints are going to be resolved will be negatively affected. In such instances, resolution of complaints could face delays or might be rushed through – resulting in poorly delivered decisions.
This could open a PPA to serious embarrassment, especially when the aggrieved party decides to challenge the PPA’s decision before the next tier of the grievance and complaints channel. Aside from the volume of complaints, a PPA could be faced with technically complex petitions which require specialised skills in the discipline within the subject matter the complaint falls into for resolving the dispute. Such specialised skills may not be available in-house. The PPA’s capacity to resolve such matters effectively and satisfactorily will thus be limited.
It is evident from the above that the performance by a PPA of both procurement policy formulation and procurement review functions raises several legal and procedural issues which can affect the effective discharge of its mandate.
>>>The writer is a procurement and logistics professional. His interest is in the areas of Value For Money, Public Procurement Policy & Regulation, as well as the Dry Port concept within emerging economies. Keen on knowledge acquisition and profession growth, Wunzooma has a number of academic and professional certification in the fields of law, procurement, transport & logistics and supply chain, and is currently a Professional Law candidate at the Ghana School of Law, Makola and an LLM candidate in Public Procurement Law & Policy at Nottingham University, UK. He can be reached on 0242232279 and/or [email protected]
