Author: Chris Magoba. PHOTO/COURTESY
The subject of public procurement continues to elicit public attention and recently, it has taken centre stage in the legal arena. This should not be surprising considering the importance of public procurement to the livelihoods of, literally, all citizens.
It is a given that service delivery by government to citizens is by and large through public procurement processes.
However, to some people, public procurement is a series of tedious, complex and at times seemingly unnecessary procedures. And therefore, there is a temptation to shortchange these processes for quick fixes. This is a big mistake and may result in colossal losses as we shall explain.
In a recent High Court ruling, Lady Justice Patricia Asiimwe Kahigi reaffirmed, not only the importance of public procurement as a policy, but most significantly the implications of the procedures therein, that must be adhered to meticulously. The judgement followed a petition by a provider, BJ Consults Ltd, who sued the Ministry of Education for services they said they offered to the Ministry.
BJ Consults Ltd filed a suit claiming that they entered into a contract with the Ministry of Education for customs clearing services and that the Ministry breached the contract and, in the process, made the provider incur losses in millions of shillings. Lady Justice Kahigi ruled that the BJ Consults Ltd claim could not stand because there was no contract signed between the two parties and that there was flouting of procurement procedures. According to the ruling, a public procurement contract can only be valid and enforceable if it is made in accordance with the procedures specified in the PPDA Act and the regulations under the Act.
During the hearing, the Attorney General, representing the Ministry, averred that there was no valid and enforceable contract between BJ Consults Ltd and the Ministry because the services provided by BJ Consults were procured in violation of the PPDA Act.
Court established that there was no invitation to bid for the services, there was no bidding document issued by the Ministry, and there was no bid submitted by BJ Consults Ltd. Both the entity and the provider reneged on some of the salient processes in a typical procurement procedure.
There are other equally critical processes, the most important of which is the signing of a contract. Failure to adhere to these processes will predispose both the government and the contractor to undue litigation and ultimately to losses to one of the parties as happened in the instant case.
Adherence to the PPDA Act and other legal instruments made thereunder, is not a mere formality. The framers of the Act were alive to the importance of these processes in the country’s socio-economic development agenda.
Adherence to public procurement processes, not just by government, but also by many agencies including the UN and the World Bank, is a proven way of buying the right goods and services at the right time, right price, and the right quality.
That is why Section 57 of the PPDA Act, under application of public procurement and disposal rules, unequivocally provides that, “All public procurement and disposal shall be carried out in accordance with the rules set out in this Part and regulations and guidelines made under this Act.”
In addition to this section, there are other provisions in the Act, related to the procurement cycle, that impose more rigours on the procuring and disposing entities (PDEs). There are also Regulations and Guidelines issued from time to time in line with the provisions of the PPDA Act. PDEs and the bidders must follow them because adherence ensures a seamless procurement process, and forestalls undue litigation.
Mr Cris Magoba, manager, Public relations, PPDA.
