PRADIN Cautions FG on BPP’s Illegal Action on Contractors

A civil society organization, Procurement Observation And Advocacy Initiative, PRADIN has kicked against “announcements (on Channels TV to be specific) by the Bureau of Public Procurement (BPP), and involving the Attorney General and Minister of Justice as well as the Minister of Works wherein it is stated that “the President has approved that all contractors and consultants in Nigeria are to register with BPP for purpose of classification and categorization based on their technical and financial strength”, and which purpose is to reduce corruption.”
PRADIN in a letter addressed to the Secretary to the Government of the Federation said “As a procurement group under the leadership of a certified professional, we have observed that the announcement byBPP is an attempt to misguide the public by using the name and office of the President as being the one that approved the process for BPP to begin the conduct of classification and categorization, whereas, this is a statutory responsibility under the extant law. The current action by BPP is however Bid prequalification of Bidders (Preliminary or Pre-bid Evaluation of contractors) on behalf of Ministries, Departments and Agencies (MDAs) of government, linking the action to Section 6(d) of the Public Procurement Act (PPA) 2007 involving the maintenance of a National Database of Contractors and Service Providers and to the exclusion of all procuring entities, prescribe classifications and categorizations for the companies on the register. This action in our opinion has the potential of breeding executive corruption through Bid Rigging which is biased and a criminal violation of Section 58 of PPA.
The letter said further “To support our view above, we wish to draw the attention of the SGF to the following Sections of PPA 2007:a. S.5p of PPA says BPP is to perform procurement audits and submit such report to the National Assembly bi-annually; b. S.5(c) of PPA subject to thresholds as may be set, by the council, certify federal procurement prior to the award of contract;c. S.6 states that “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;d. S.53(1) says that 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, and e. S.54 where BPP is a quasi-judicial body
Read the full text of the letter below:
August 20, 2014

The Secretary to the Government of the Federation
FederalRepublic of Nigeria
Office of the SGF, Three Arms Zone
Abuja

Dear Sir,

NATIONAL SECURITY,
LEGAL AND PROFESSIONAL IMPLICATION OF THE ON-GOING MEDIA ANNOUNCEMENT BY BPP AND COUNCIL MEMBERS OF THIS ADMINISTRATION ON CLASSIFICATION AND CATEGORIZATION OF CONTRACTORS AND CONCULTANTS BASED ON THEIR TECHNICAL AND FINANCIAL STRENGTH

A Call for Caution

Our attention is drawn to the ongoing media announcements (Channels TV to be specific) by the Bureau of Public Procurement (BPP), and involving the Attorney General and Minister of Justice as well as the Minister of Works wherein it is stated that “the President has approved that all contractors and consultants in Nigeria are to register with BPP for purpose of classification and categorization based on their technical and financial strength”, and which purpose is to reduce corruption.

As a procurement group under the leadership of a certified professional, we have observed that the announcement byBPP is an attempt to misguide the public by using the name and office of the President as being the one that approved the process for BPP to begin the conduct of classification and categorization, whereas, this is a statutory responsibility under the extant law. The current action by BPP is however Bid prequalification of Bidders (Preliminary or Pre-bid Evaluation of contractors) on behalf of Ministries, Departments and Agencies (MDAs) of government, linking the action to Section 6(d) of the Public Procurement Act (PPA) 2007 involving the maintenance of a National Database of Contractors and Service Providers and to the exclusion of all procuring entities, prescribe classifications and categorizations for the companies on the register. This action in our opinion has the potential of breeding executive corruption through Bid Rigging which is biased and a criminal violation of Section 58 of PPA.
Mohammed B. Attah the National Coordinator of PRADIN also copied the President and Commander-in-Chief The Attorney General of the Federation and Minister of Justice;Chairman, Independent Corrupt Practices & Other Related Offences Commission;Director General, Bureau of Public Procurement and President, Chartered Inst. of Purchasing and Supply Management of Nigeria.
PRADIN argued further that “To support our view above, we wish to draw the attention of the SGF to the following Sections of PPA 2007:a. S.5p of PPA says BPP is to perform procurement audits and submit such report to the National Assembly bi-annually; b. S.5(c) of PPA subject to thresholds as may be set, by the council, certify federal procurement prior to the award of contract;c. S.6 states that “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;d. S.53(1) says that 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, and e. S.54 where BPP is a quasi-judicial body

All the above Sections of PPA are applicable in contract law and when read together with Section 6(d) of PPA to understand the true intent of the lawmakers before seeking approval from the President to register, categorize and classify contractors and consultants based on their technical and financial capability and claiming that it will stop corruption.
The interpretations of the above Sections of the law are that 1. BPP is a referee or quasi-judicial body and is required by law not to be seen, or present itself or operate as biased agency in making decisions and getting involved in procurement activities of respective MDAs in Nigeria; 2. That BPP operations is required to follow the legal principle that it is already trite that a man should not be a Judge in his own case; 3. BPP must understand that where the Judge is also a party to the matter in question, he violates the maxim nemo judex in causa sua; 4. And that where the prosecutor and the Judge in a case are the same persons, there can be no fair hearing and the rules of natural justice would be violated.
It is a legal requirement and part of the rule of interpretation that when a particular provision of the statue is to be interpreted, any other provision in the same law relevant and related to that section sought to be interpreted must be read together and considered as a whole; see Olatunji vs State (2003) 14 nwlr (Pt 839) 138 at page 159-160 or Matari v Dngaladima (1993) 3 NWLR (Pt 288)266 “ [P.198] Paras 5-10 .
With respect to the general rule as regard bias or likelihood of bias, the common law disqualified an adjudicator from adjudicating whenever circumstances point to a real likelihood that he will have a bias by which is meant “an operative prejudice whether conscious or unconscious”. This means that BPP can no longer apply Section 6, 54, and 53 of the PPA to MDAs once they are involved in any form of classification and categorization of contractors based on Technical and Financial Capacity.
All the above functions ascribe to BPP are the main work of the Evaluation Committee in all the MDAs in Nigeria, chaired by the Procurement Officer in each entity. The BPP cannot and should not conduct the prequalification of all contractors and consultants in Nigeria under the name and style of “Maintaining a National database of contractors and service providers” and to the exclusion of all procuring entities, prescribe classifications and categorizations for the companies on the registerand then turn round to issue ‘No Objection Certificate’ as in Section 6, settle disputes in Section 54 and 53 as well as perform procurement audit in Section 5(p), all of the PPA without the likelihood of bias as explained above.
It is important to note that the evaluation or prequalification of bidders into categories by way of their technical and financial status is primaryto the successful evaluation of bids and can be seen as a set of clear, measurable and realistic program objectives. This is the primary responsibility of MDAs for each tender as the financial status or the level of equipment available to each contractor/service provider at any particular time can suddenly change without the knowledge of BPP that ‘certified them fit through this pre-qualification exercise’

The laws which set BPP as a quasi-judicial body or auditor with the task of submitting report to the National Assembly expect it to serve as an independent, confidential, impartial adviser. This is however not possible after BPP has finished classification of all contractors in Nigeria based on technicalities and financial standing for the purpose of bidding in MDAs. They can classify and categorize based on other parameters that does not touch on technical and financial capacity which is the responsibility of respective MDAs on tender.

Clearly, the statutory role and position of the BPP is misplaced here. What the BPP need do is simply to categorize all firms and companies into National and Foreign entities as defined by law under the PPA 2007 and then classify all national and foreign companies as consultants or Works Contractors or Suppliers of Goods etc, according to the nature of work to be performed and ensuring that the classification is in line with the common law standard. This should not be based on Financial or Technical capability as this will compromise BPP and promote corruption.And since the President gave approval as announced on national television, the President may also stand accused.

May I also draw your attention to the fact that this subject matter which the BPP claimed to have submitted to the President late last year for approval is still in dispute by the stakeholders and especially professional bodies that argue that BPP has no legal right to categorize Architects based on Technical and financial power, same goes for lawyers, engineers etc.

Finally sir, this letter should serve as reminder and support to several others written in the last years, since the establishment of the Bureau, to prove the fact that the BPP as presently constituted does not have the required expertise and capacity to effectively manage the procurement process in Nigeria.

The events that will follow this letter are other issues to watch out for.
Thank you sir,

Mohammed B. Attah
National Coordinator

CC: 1. The President and Commander-in-Chief
2. The Attorney General of the Federation and Minister of Justice
3. The Chairman, Independent Corrupt Practices & Other Related Offences Commission
3. The Director General, Bureau of Public Procurement
4. The President, Chartered Inst. ofPurchasing and Supply Management of Nigeria.