Many would-be suppliers to government and its departments have always complained about lacking information about ‘juicy’ business deals. Let’s look into this.
These complainants allege that some procurement is carried out without adequate public notification. That at times such information is given to a selected few suppliers to the detriment of the general public.
In a nutshell, procurement and disposal notices are not duly passed onto the intending suppliers outside the ring of a chosen few. Whether this allegation has merit is a matter for investigation.
But from the legal point of view, such practice is illegal and should be avoided. If such practices were to flourish, they would compromise the cardinal principles of fair competition which is intended to yield value for money in the procurement process. Needless to emphasize, is the fact that one of the main objectives of Public Procurement and Disposal of Public Assets Act (PPDA Act 2003) and Regulations is to ensure the application of fair, competitive, transparent, non-discriminatory and value for money public procurement and disposal standards and practices.
It was with this thinking, that modern procurement practices require that all advertisements of need to procure items and services should be found and or accessed on notice boards in the various government departments – not only in newspaper advertisements. This position is adequately emphasized by Uganda’s procurement laws and regulations.
For example under Regulation 38, a procuring and disposing entity is commanded to ensure that a procurement and disposal notice is published or displayed as prescribed by procurement laws.
The said regulation provide that it should be done by using the format prescribed by the PPDA Act, it should be published in all appropriate media, it should be done at a time frame allowed by procurement laws and displayed for the prescribed period of time.
Most importantly, a procuring and disposing entity is compelled by law to position a notice board at a location within its premises. This notice board should be freely accessible to members of the public – including interested bidders.
What should the notice board display? The law provides that it must display information regarding pre-qualification, it must display a bid notice, notices of a shortlist, a bid opening record, a notice of best evaluated bidder, a notice of award of contract, for both procurement and disposal.
Further, on the notice board the PDU must display a monthly report of all micro procurement transactions, a notification of public auctions and a public invitation notice under disposal by public bidding. And, where procuring and disposing entity has a website, it should post the notices on its website in addition to displaying it on the notice board.
It should be noted however, that the use of a notice board or website does not relieve a procuring and disposing entity of its responsibility to publish a relevant notice publicly in the media or on the Authority’s website which is provided for in the PPDA Act and the Regulations.
In fact the issue of making procurement and disposal notices available to all gained further momentum recently when the Public Procurement and Disposal Authority developed an Online Tender Portal.
In a June 2011 letter to all accounting officers, PPDA Executive Director Cornelia Sabiiti announced the new move. In the new arrangement, all procuring and disposing entities are required to post all tender information onto the PPDA tender portal.
Sabiiti emphasised that one of the main objectives of her organization is to ensure the application of fair, competitive, transparent, non-discriminatory and value for money public procurement and disposal standards and practices. In accordance with PPDA Regulation 39 (2), every procuring and disposing entity is required to display, on the entity’s notice board, bid notices, best evaluated bidder notices, shortlists and awarded contracts among others.
“In light of the above, PPDA has developed an Online Tender Portal which will contain all tender related information including tender notices, best evaluated bidders (BEBs), and contract awards for both procurements and disposals. This information is available in the Procurement and Disposal Units of your organizations” she told all accounting officers, adding “The purpose of this letter is to request you to prevail upon the PDU to take advantage of the online tender portal and upload the relevant information.
This will enhance transparency in the procurement process of your organisation and ensure the preparation of up-to-date reports on procurement contrary to the manual reports you send to PPDA which are sometimes received after they have expired”.
To put this directive into action, all procurement and disposal units in government departments will receive a username, password and user guide to assist them on how to upload the required information. The link to the tender portal has been also been made available on the PPDA website.
Closely related to the issue of procurement and disposal notices is the outcry from local contractors over what they call marginalization on the part of government departments which they accuse of awarding juicy public tenders to big multinational contractors.
Whether this allegation has merit will depend on a careful examination of the procurement procedures as laid out in the Act and Regulations. The main focus will be on whether before such awards are concluded there is fair, transparent, competitive and non-discriminatory treatment to all bidders/applicants. Secondly - do such awards yield value for money?
Local firms claim that awarding juicy contracts to big multinational firms has led to domination of the sector by international firms, with local firms seen as incompetent. Local contractors are now asking the government to promote home-grown firms; otherwise local firms will not develop competences to become competitive.
At this point the complaining firms should take notice that the government has come up with a plan to promote local firms in the revised Public Procurement and Disposal of Assets Act of 2011. According to the proposed law, local firms will get 20% of the public contracts and 30% will go to international firms. The remaining 50% will be competed for in open bidding.
This move has been hailed by procurement experts saying that reserving a percentage of the government’s contracts for local companies is a good idea. It will promote home-grown firms. But they further argue that it should not be made mandatory that only local firms should take all the small contracts in the country. The dilemma is how to separate ‘small contracts’ from ‘big’ ones.
Supporters of this argument say that there are small contracts that require expertise and advanced machinery which local firms do not have, necessitating the use of international firms.
Of course this entire argument fall back to procurement laws and procedures which have adequately put in place safeguards. For example that is why open bidding is carried out. Procuring and disposing entities are able get suitable contractors who have the required capacity and competences to do quality work through open bidding.
Once the right procedures are followed, questions of discrimination are thrown by the way side. Local firms should also be awarded big contracts if they have the ability to undertake them. If the company has the expertise, experience and equipment needed to undertake the contract, why wouldn’t it get a ‘juicy’ public contract?