PPA 2007, corruption and the unresolved capacity gaps – Part 2

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 recognised 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 oversees 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
Attah is a procurement professional and the National Coordinator of Procurement Observation and Advocacy Initiative (PRADIN.)

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