It was refreshing to read that the Alliance for Change is working on a compromise proposal in respect to the establishment of the Public Procurement Commission. However, the AFC has to be careful that in drafting a compromise amendment to the Procurement Act, it does not vitiate the cornerstone of constitutionalism: the separation of powers.
Based on what has been published in the newspapers, it does seem as if the AFC is on the wrong track. Even though its intentions may be right, it cannot swallow hook, line and sinker the proposal made by the Private Sector Commission to break the deadlock over the Public Procurement Commission because the private sector’s proposal also tramples on the separation of powers.
In an earlier column, I had alluded to the fact that the functions of the Procurement Commission were outlined under the constitution. It is simply an oversight body. The Public Procurement Body does not control the award of contracts. Neither is it an adjudicatory body; that is a role reserved for a Public Procurement Tribunal.
The mistake that both the private sector and now the AFC seem to be making is that they are entrusting to the functions of constitutional commissions that under the separation of powers are the preserve of the executive arm of the State.
This is precisely the reason why one of the pieces of local government legislation passed by the National Assembly was not supported by the President. It did not enjoy the government’s support because it would have been unconstitutional to vest in a constitutional commission functions that are the remit of the Executive.
No government that understands and respects the separation of powers, the cardinal principle of constitutionalism, is ever going to allow functions that are the proper jurisdiction of the Executive to be vested in a constitutional commission.
In seeking a compromise the AFC must guard against two tendencies. Firstly, it must avoid a situation whereby a constitutional commission usurps the functions of the Executive. Secondly, and more importantly it must not elevate the National Procurement and Tender Administration, an arm of the government, above the Cabinet. This would be akin to the office assistant being given more powers over his supervisor.
This column has proposed a possible model as a compromise. It is a model that can be subject to variations which do not conflict with the two above principles.
The compromise is repeated below:
The right to an objection by the government should be preserved, but if the government objects to an award, it should trigger certain rules. The Cabinet should first be required to submit to the National Procurement Commission, not the Board, reasons for any no-objection. If those reasons as given by Cabinet relate to possible discrepancies, oversight or bias in the award of the decision, then the Commission should resend the matter to the National Procurement Administration for reconsideration. The Commission is this sense acts as a mere conduit and at the same time exercises oversight since it is required to be notified of a challenge to an award.
If the National Procurement Administration finds no basis to change its decision, then an administrative tribunal, comprising persons who were not part of the original evaluation, should be asked to reexamine the award. If this tribunal is satisfied with the award, then the no-objection should be overruled. It should be noted that the Procurement Act makes provision for the appointment of a tribunal.
If on the other hand the no-objection is based on the fact that the award will conflict with an international obligation of the government – there are some agreements which specify that the contractor should be from the country financing the project – then the no-objection should take precedence over any decision of the National Procurement Administration.
There can be all manner of variations to the above formula which is merely illustrative of a rule-based system. If a rule-based approach is taken to this issue, then the difference between the government and the opposition can be narrowed and there would be no reason for political gridlock to cause the non- appointment of the National Procurement Commission.
Best of luck to the AFC with its proposed compromise!
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