Sole sourcing is an exception; it cannot be elevated to become the norm – Expert

A former CEO of the Public Procurement Authority (PPA), has emphasised that sole-sourcing in public procurement cannot be made the norm.

Mr. Agyenim Boateng Adjei says sole-sourcing is an exception and that competitive tendering is a default position of the law.

He was speaking on Joy FM’s Super Morning Show Tuesday in the wake of accusations by opposition politicians that more than 80 percent of all government contracts have been given on the basis of sole-sourcing.

They contend that the contracts are being handed to cronies of the governing of National Democratic Congress, fuelling corruption and rent-seeking.

A finding by the government itself that the cost of a sole-sourced contract to brand some 116 public buses was inflated by 1.5 million cedis has exacerbated the accusations.

The fact that Selassie Ibrahim, the owner of Smartty’s Management and Productions which executed the contract is a known partisan of President John Mahama has not helped matters.

Discussing the subject, the former CEO of the PPA said the Public Procurement Act, 2003 (Act 663), was clear on the circumstances under which sole-sourcing or single-sourcing as it is stated in the law, is permitted.

Section 40 (1) of the law lays down the procedures to use; "A procurement entity may engage in single-source procurement under section 41 with the approval of the Board,

(a) where goods, works or services are only available from a particular supplier or contractor, or if a particular supplier or contractor has exclusive rights in respect of the goods, works or services, and no reasonable alternative or substitute exists;

(b) where there is an urgent need for the goods, works or services and engaging in tender proceedings or any other method of procurement is impractical due to unforeseeable circumstances giving rise to the urgency which is not the result of dilatory conduct on the part of the procurement entity;

(c) where owing to a catastrophic event, there is an urgent need for the goods, works or technical services, making it impractical to use other methods of procurement because of the time involved in using those methods;

(d) where a procurement entity which has procured goods, equipment, technology or services from a supplier or contractor, determines that (i) additional supplies need to be procured from that supplier or contractor because of standardisation; (ii) there is a need for compatibility with existing goods, equipment, technology or services, taking into account the effectiveness of the original procurement in meeting the needs of the procurement entity; (iii) the limited size of the proposed procurement in relation to the original procurement provides justification; (e) where the procurement entity seeks to enter into a contract with the supplier or contractor for research, experiment, study or development, except where the contract includes the production of goods in quantities to establish commercial viability or recover research and development costs; or

(f) where the procurement entity applies this Act for procurement that concerns national security, and determines that single-source procurement is the most appropriate method of procurement."

Mr. Adjei said if this law is obeyed, contracts awarded on the basis of sole-sourcing cannot constitute more than 15 percent of all government contracts.

Documents made available to pressure group, OccupyGhana, indicate that approval was sought from the PPA after the contract had already been executed.

If proven, Mr. Adjei said this would amount to a violation of provisions of the law which prohibit sidestepping the laid-down procedures.

“Any person who contravenes any provision of this Act commits an offence and where no penalty has been provided for the offence, the person is liable on summary conviction to a fine not exceeding 1000 penalty units or a term of imprisonment not exceeding five years or to both,” he quoted Section 92(1) of the law as saying.

The section also details the following as constituting offences under the Act: "(a) entering or attempting to enter into a collusive agreement, whether enforceable or not, with any other supplier or contractor where the prices quoted in their respective tenders, proposals or quotations are or would be higher than would have been the case has there not been collusion between the persons concerned; (b) directly or indirectly influencing in any manner or attempting to influence in any manner the procurement process to obtain an unfair advantage in the award of a procurement contract; (c) altering any procurement document with intent to influence the outcome of a tender proceeding and this includes but is not limited to (i) forged arithmetical correction; (ii) insertion of documents such as bid security or tax clearance certificate which were not submitted at bid opening; and (d) request for clarification in a manner not permitted under this Act.”

Mr. Adjei said if the PPA feels the Transport Ministry misled it in any way, can cause an investigation to be conducted and if this is proven, the approval it gave for Smartty’s to be sole-sourced to engage in the bus branding can be revoked.