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 the Public Procurement Bureau of Latvia and the Department of Contract for Malta.
However the performance by a PPA of functions which could 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 might 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 that 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 an appointer-appointee relationship existing between a PPA and government, which brings to the fore fears of a PPA’s ability to stay free from influence by the governmental machinery that appointed the PPA’s head; 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 a clash of its core function with non-core functions, thus creating a conflict between its review role and 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 issues of review have attracted media attention or gained political currency. The PPA may, in its attempt to satisfy the public or their appointing political authority, direct so many resources, time and attention to these controversial issues of interest to the neglect of its core function.
Another issue that could confront a PPA which handles complaints review is the conflicting role of a regulator/advisor and 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 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 or is not well-grounded in law – giving an impression of partiality.
Additionally, where 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 claims of those rules’ infringement.
In the face of this scarcity of knowledge/awareness on these rule by most actors, a PPA can undertake its review as suits it regardless of any other party’s 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 can also be raised regarding a PPA’s capacity to make quasi-judicial decisions. When a PPA acts as arbiter, issues like abuse of discretionary powers as well as the capacity of PPA officials to effectively execute such a quasi-judicial duty may be raised.
One fundamental feature of quasi-judicial bodies is the exercise of discretion, which when not correctly exercised can give rise to a challenge before the courts. The vesting of this power in a PPA can open the flood-gates for courtroom litigation, with its attendant delays for the whole procurement system, if the entrusted power is not exercised correctly.
Furthermore, 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 the 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 is 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 can be subject to manipulation by the ministry that controls its budget – or even by applicants/petitioners or agencies whose decisions are being challenged, especially where such parties to the dispute offer to assist by way of budgetary support or logistically…either covertly or overtly.
The effectiveness of complaints review duties of a PPA can also be called into question depending on size and complexity of the public procurement market. Where the number of complaints received by a PPA outstrips it 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 can face delays or 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 in the grievance and complaints channel. Aside from the volume of complaints, a PPA can be faced with technically complex petitions that call for specialised skills in the discipline within which the subject matter of the complaint falls to resolve 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 a PPA’s performance 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 interests are 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 professional growth, Wunzooma has a number of academic and professional certifications 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]
