Re: Yar’adua’s FEC has become a tender’s board

From the point of view of a lay man, the interview no doubt represents a popular view, but a professional review of the questions and answers reveal a staggering inconsistency and ignorance on many fronts. Perhaps before analyzing the submission, it is traditionally wise to state that this rejoinder is not an attempt to defend […]

From the point of view of a lay man, the interview no doubt represents a popular view, but a professional review of the questions and answers reveal a staggering inconsistency and ignorance on many fronts.

Perhaps before analyzing the submission, it is traditionally wise to state that this rejoinder is not an attempt to defend the position of the executive or any other arm of government that the interview may have indicted, but an attempt to clear some grey areas in the publication.

Representative Tuggar’s responses to the questions are but a mix bag of reality and fictions. In some instances, he appeared on the right track, defending the Public Procurement Act, and in other times, he did not.

It is only objective however to acknowledge his positive statements such as that the president violated the Fiscal Responsibility Act (FRA) while implementing the 2009 budget for his failure to present same before the House. This is purely a constitutional matter and I agree with him. The president’s failure to inaugurate the National Council on Public Procurement (NCPP) as observed by Tuggar is not only correct, it is a fact that the bulk of corruption in public service revolves around procurement through contract awards. It is also commendable that Tuggar pointed out the illegality in the president’s reviewing of thresholds for the award of contract.

Starting with this last issue, Tuggar however failed to see the other errors. Review of thresholds is a technical and professional responsibility, only qualified procurer or body is allowed by law to set threshold as in the case of BPP. In this instance, therefore, both the executive and legislature are guilty of this illegality because the two Houses of the National Assembly have set forth a process by reviewing the thresholds in the 2008 Executive Bill for the amendment of the Public Procurement Act 2007 and set same without the Minister of Finance and the Council.

On the heels of thresholds review, how does one justify Tuggar’s statement in paragraph two of the second question, when he said: “There is a view that the president has violated the FRA in the course of implementing the budget…” He also said, “The Council’s Director General is its secretary… we have in it civil societies, the media and Institute of Supply Management (purchasing) and other professional bodies. They (council) are responsible for checking, retiring and reviewing thresholds which the president now backs unilaterally.” By this statement, Tuggar clearly acknowledges the vital role of the non-permanent members of the council – Civil Society Organizations (CSOs) and the media, including the exclusive responsibility of the Chartered Institute of Purchasing and Supply Management of Nigeria (CIPSMN). Yet when he was asked in another question: that the amendment bill proposed and passed by the House has no civil society and the media from the six non permanent members, he simply replied: “It means they are out. It’s democracy.” I am compelled to ask: whose democracy? Democracy of the people or of the Representatives? Acknowledging their vital role on one stage only to turn around to remove them is double standard. For me, it is a ‘de-service’ to the people – self-socracy.

Another point that exposed the inconsistencies in Tuggar’s interview is the reference to the Executive Bill on the request to amend the PPA 2007 that has not been tested since it was signed into law in June of that year. Rightly so, CSOs and members of the professional bodies, particularly CIPSMN, have on several occasions drawn the attention of the legislators to that fact, even as the bill was laid before them. Yet they ignored all the warnings and passed it in its present form.

What is unacceptable is accusing the executive of double standard and exonerating the legislature, who are guiltier of the charge since their constitutional role is to defend the constitution.

Ironically, the committee in their 2008 proceedings of September 11 went beyond their mandate to introduce new issues not sought in the Executive Bill. The recommendation for the removal of CSOs, media and engineers and replacing them with quantity surveyor was not part of the amendments sought.

The journalist asked Tuggar: “Why would Federal Executive Council be approving contracts?” Tuggar responded: “It is in the interest of the president to distance himself from operating like tender’s board and getting involved in who gets what contract.” Clearly from the above question and answer, there are conflicting views and understanding of the technical areas in the award of contracts. First, there is a great difference between contract award or contract authorization/decision and contract approval. Section 5 (1) and 148 of the 1999 Constitution as well as Sections 19, 20 and 22 (5) of the Public Procurement Act explain these differences.   

The decision of tender’s board in all procuring entities in the executive arm of government are required to be sent to the minister by the accounting officers or tender’s board secretary in the Ministries, Departments and Agencies (MDAs) for implementation. This forms the basis for ministers to present their respective board’s decision to the FEC where approvals are obtained before implementation of contracts awarded. Therefore, the president/FEC approves while tender’s board gives authorization. The president and FEC cannot be denied this responsibility.

The error therefore by FEC which has generated a lot of controversies is the application of the right word. All MDAs are under the supervision of the presidency, as such any contract not approved by the FEC even after the so-called award is deemed not to qualify for execution by the minister, as it is only after such approval and execution of contract that funds are released from the treasury.

The contract approval by the president/FEC can only be deemed to be legal when it is supported by a Certificate of No Objection from the Bureau of Public Procurement duly signed in accordance with Section 16 (4) of the Public Procurement Act. This implies that only a qualified procurer can sign such certificate.

Attah is the Managing Editor of NGO Network, a general interest magazine for the non-profit sector in sub-Saharan Africa, monitoring procurement corruption in Nigeria