WHY always procurement staff ? This must be the big question to anyone interested in Public Procurement. It is common to hear that procurement staff are fired immediately when things go wrong. I guess someone may think, it is either they are not professional and capable or they have inadequate integrity or ethics while doing their responsibilities. I am pretty much sure that people are judging them without knowing their legal limit(s) of their responsibilities. It is my intention to get you through their limits as required by the law.
To keep the record of the discussion clear, I am not saying that, procurement staff are not always involved in any wrong doing but it is not always right to say procurement staff are involved. When someone hears about procurement process, the first thing that comes in mind is Procurement persons, as the sole experts involved in the whole process. This is not true for the Public Procurement. May be, because of the word Procurement itself as it is related to specific staff which is wrong in Public Procurement.
It is a normal thing to hear that, procurement experts are fired when things get wrong in Public Procurement. Unfortunately procurement staff always end up to be scapegoats. As a procurement expert, I think that the last person to be fired in Public Procurement should be the procurement staff. I know it may sound confusing to those who have inadequate knowledge of Public Procurement.
As per our Public Procurement Act (PPA) NO. 7 of 2011 “The Act” and Public Procurement Regulation GN. NO 446 of 2013 “The Regulation” both amended in 2016 and 2021 Revised Edition) Procurement staff have only advisory role in procurement process and he/she does not make any decisions. I can say that, according to The Act, Procurement Experts are the safest persons, because they only provide professional advice. However, in any case he/she might be the last person to be blamed.
In Public Procurement there are many stakeholders involved in decisions making. There is Budget Approving Authority [Section 33.2 of The Act], Accounting Officer [Section 36], Tender Board [Section 33.1], Procurement Management Unit – PMU [Section 38], User Department [Section 39], Evaluation Committee [Section 40], Legal Expert [Section 60], Inspection and Acceptance Committee [section 245 of The Regulation] and Internal Audit Unit [Section 48.2]. All of them are involved in the public procurement process and are required to carry out their responsibility independently [Section 41].
I want to take you through this scenario so that we can all learn and know whom to blame when things do not work as planned. Let’s take an example of a procurement for a building construction.
The procurement process of the building construction starts with preparation of employers’ requirement, drawings, project time, technical specifications, preparation of Bill of Quantities [BOQ], preparation of cost estimates, and other requirement depending on the type of the building. All these are done by User department [Section 39]. Before these requirements, getting to the procurement staff hands, User Department has to request the approval of the procurement to the Accounting Officer [Head of Institution]. The head of institution has the right to approve or disapprove the procurement [Section 36.1.d]. You are reminded that at this point, the procurement personnel has no right/act to disagree or agree on whether to procure or not. Hence he/she has no any right to initiate or refuse any procurement without the Accounting Officer’s consent.
After preparation of all the requirements and getting Accounting Officer’s approval to the User Department- who is not a procurement staff is now able to send requirements to the Procurement Management Unit which are involved as procurement experts. The procurement staff will then prepare procurement documentations and suggest procurement method. Although this is a professional exercise, he/she cannot fully execute without getting Tender Board for approval of the procurement documents and procurement method [Section 33. 1. a & c]. Again at this stage procurement staff has no any role other than advising and recommending. Still he/she does not make any decision since the decision relies on other part’s hands.
The next stage of procurement process is advertisement procurement opportunity, receiving and opening of tenders from contractors, which must also get Tender Board Approval. This is done by procurement staff, however, still is not fully controlled since he/she cannot extend/cancel tender once advertised without Tender Board approval [Regulation 187.4]. He/she cannot cancel or extend tender period. As above, the procurement staff has no any decision apart from recommendation. As we all know that recommendations are subjected to be taken or not.
Moreover, after opening of tenders it follows evaluation process. Evaluation Team is appointed by Accounting Officer [Section 36.1.e] after Procurement staff recommendation [Section 40.2] which Accounting Officer may or may not accept. Still, a procurement personnel has nothing to do with those people who are doing evaluation. Remember the Winner (Lowest Evaluated Bidder) of the Tender is recommended by Evaluation Committee. Procurement Staff does not make any decision on who is supposed to get a tender.
The tender award is done by Tender Board [Section 33 1.a] and their decision is communicated by the Accounting Officer according to [section 36.1.f]. Again according to Section 36.1, it is also the Accounting Officer who is also mandated to sign the contract.
After that is therefore, the obligation of the Legal Experts to vet the contract according to section [60.9&10] before signing. Again the procurement personnel has nothing to do with the award since it is the tender board that has the right to accept or reject any award recommendation from the procurement staff. Still PMU has nothing to do with the Award decision.
Finally part of the public procurement process is Contract Management. On this part as well- a procurement personnel does not have any legal mandate. Section 39.1.k requires the User department to manage the contract and inspection to be done by the Inspection and Acceptance Committee appointed by Accounting Officer [Regulation 245]. Therefore, any default caused by the contract management is also not solely the responsibility of the Procurement personnel. Any default caused by specifications, drawings, delays of the projects, BOQ, poor quality is caused by other persons not the procurement personnel.
Then, this is what happens in the Public Procurement. Can someone still solely blame the procurement staff for all wrong doings, poor quality of the project, project delays, high cost of the projects? No reason for people to see procurement staff as the only lawbreakers, while they are not making any decision. It is time to start rethinking and redefining our approaches. Many people are blaming and attacking the wrong target. Blames must be directed to the correct persons on the specific problem, instead of the current perspective, because the Procurement Officer is simply a conveyor belt in the procurement processes. It is my advice to the public that if we want to put all blames to them, let us give them full legal perspective to be heard in their responsibilities.
CPSP Jackson William Musiba
Email: jackswilly10@gmail.com
Tel: +255715287088
Twitter: @jackmusiba
