Law News
Arms deal: What Procurement Act says, by lawyers

The fight against corruption has truly begun. Those who have cases to asnwer are being hauled to court. So far, charges have been filed against former National Security Adviser (NSA), Sambo Dasuki; ex-Minister of State for Finance, Bashir Yuguda, former Sokoto State governor, Attahiru Dalhatu Bafarawa and his son, Sagir Attahiru, among others.

Emeritus Chairman of Daar Communications, Chief Raymond Dokpesi and his firm were charged under the Public Procurement Act (PPA).

Others were charged under the Penal Code. And, of the six counts contained in the charge against Dokpesi and his firm, four were brought under the PPA. Offences under the Act carry a minimum of five and maximum of 10 years with no option of fine.

• Dokpesi

• Dokpesi

In count one, Dokpesi and his company were accused of conducting “procurement fraud by means of fraudulent and corrupt act, to wit: receipt of payment into the account of Daar Investment and Holding Company Limited with First Bank of Nigeria Plc, of public funds in the sum of N2,120,000,000 from the account of the office of National Security Adviser with the Central Bank of Nigeria for the funding of media activities for the 2015 presidential election for the Peoples Democratic Party (PDP),” an offence contrary to Section 58(4)(b) of the PPA and punishable under 58(6) and (7) of the Act.


The PPA serves a response by the Federal Government to the clamour for transparency in government’s procurement process. Steps leading to the birth of the law in 2007 began in 1999 when the former President Olusegun Obasanjo inaugurated the Country Procurement Assessment field work.

• Attorney-General of the Federation, Abubakar Malami

• Attorney-General of the Federation, Abubakar Malami

The outcome of the field work produced the Country Procurement Assessment Report (CPAR), which recommended the establishment of Bureau of Price Monitoring and Intelligence Unit (BMPIU), among others, to address the shortcomings of the observed inadequacies in the country’s public procurement process.

But the Federal  Government went further by initiating move to institutionalise the operations of the BMPIU. It evolved a Bill to that effect – the Public Procurement Bill – which it sent to the National Assembly in 2003/2004. The National Assembly passed it into Law on May 31, 2007 and was  subsequently signed into law on June 4, 2007, by late President Umaru Yar’Adua.

The Act requires public institutions and other relevant parties to ensure that all public procurements are conducted in a manner that is transparent, timely and equitable and based on the guidelines, thresholds and standards.

The National Council on Public Procurement (NCPP), headed by the Minister of Finance, and which supervises the Bureau of Public Procurement (BPP), which oversees the procurement activities of all the procuring entities (and indirectly, oversees all public procurement affected by the provisions of the Procurement Act) and is responsible for the issuance of procurement “Certificates of No Objection.”

A “Certificate of No Objection” is the document that confirms that due process was followed in the conduct of a procurement process and authorises the procuring entity to enter into the relevant contract.

Before PPA, public procurement in the country was haphazardly handled based on the Treasury Circulars of 1958, which provided only guidelines on public expenditure management.

The PPA, as enacted by the National Assembly is only applicable to federal institutions. However, states like Edo, Delta and Rivers have taken steps to enact their own versions of the law while a few others are in the process of doing so.


What constitutes legitimate contract under the PPA

The procedure for the award of contract under the Act is explicitly captured in Section 16, Part 4.

Section 16(1) provides: Subject to any exemption allowed by this Act, all public procurement shall be conducted:  (a) subject to the prior review thresholds as may from time to time be set by the Bureau pursuant to Section 7(1) (a)-(b); (b)   based only on procurement plans supported by prior budgetary appropriations and no procurement proceedings shall be formalised until the procuring entity has ensured that funds are available to meet the obligations and subject to the threshold in the regulations made by the Bureau, has obtained a “Certificate of ‘ No Objection’ to Contract Award” from the Bureau; (c)   by open competitive bidding ;  (d ) in a manner which is transparent, timely, equitable for ensuring accountability and conformity with this Act and regulations deriving therefrom ; (e) with the aim of achieving value for money and fitness for purpose ;   (f)  in a manner which promotes competition, economy and efficiency; and  (g) in accordance with the procedures and time-line laid down in this Act and as may be specified by the Bureau from time to time.

Punishment for infraction

Under the Act, any breach of its provisions constitutes an offence. And, punishment for offences relating to public procurement, the court with jurisdiction to try such offences, and who should prosecute offender are stipulated in Part 7, Section 58 of the Act.

In the case of a natural person, Section 58(1) states: “Any natural person not being a public officer who contravenes any provision of this Act commits an offence and is liable on conviction to a term of imprisonment not less than 5 calendar years but not exceeding 10 calendar years without an option.

In the case of a public officer, Section 58(5) states: “Any person who while carrying out his duties as an officer of the Bureau, or any procuring entity who contravenes any provision of this Act commits an offence and is liable on conviction to a cumulative punishment of:(a)  a term of imprisonment of not less than 5 calendar years without any option of fine; and (b) summary dismissal from government services.

Where it is a company that violates provisions of the law, Section 58(6) provides: “Any legal person that contravenes any provision of this Act commits an offence and is liable on conviction to a cumulative penalty of: (a)   debarment from all public procurements for a period not less than five calendar years; and (b) a fine equivalent to 25 per cent of the value of the procurement in issue.

Where a company is convicted, the law also provides punishment for its directors in Section 58(7) which states that: “Where any legal person shall be convicted pursuant to subsection (4) of this Section, every director of the company as listed on its records at the Corporate Affairs Commission shall be guilty of an offence and is liable on conviction to a term of imprisonment not less than three calendar years but not exceeding five  calendar years without an option of fine.


Exceptional cases

However, the law, in Part 3, Section 15(2) provides for exception as it relates to procurements carried out under national security or defence. But, such exemption must be with the consent of the President.

Section 15(2) states: “The provisions of this Act shall not apply to the procurement of special goods; works and services involving national defence or national security unless the President’s express approval has been first sought and obtained.


Notable cases before now

Notable individuals, who have, before now, been subjected to trial under the law include former directors of the Nigerian Ports Authority (NPA) – Olabode George (ex-Chairman), Aminu Dabo (ex-Managing Director), Abdullahi Aminu Tafida, Oluwasegun Abidoye, Zanna Maidaribe and Sule Aliyu and former Director-General of the Nigerian Maritime Administration and Safety Agency (NIMASA),Temisan Omatseye.

George and other directors of the NPA, who served between 2001 and 2003, were convicted and sentenced to two years’ imprisonment on October 26, 2009 by a Lagos High Court. The Court of Appeal, Lagos affirmed the trial court’s decision in its January 21, 2011 judgment.

But the Supreme Court, in a unanimous judgment by a five-man panel head by the now retired Justice John Afolabi Fabiyi, in a judgment delivered in December 2013, voided George’s and others’ conviction on the ground they were charged under a a law that was not in existence when the alleged offences were committed.

Omatseye, who was arraigned sometime in 2010, is being tried under the Act for alleged “contract rigging.” He is conducting his defence.

Experts said though no substantial success has been recorded in the prosecution of violators of the Act since its enactment in 2007, the decision by the new government to charge notable individuals under the Act will provide an opportunity to further test its workability.

Lawyers, including Dr. Abdulkair Lawan, Adekeke Abegunde and  Jude Nwanchukwu of the Centre for Public Accountability  (CPA) are of the view that it would be premature and prejudicial to begin to examine the chances of both the defendant and prosecution in the current cases.

Lawan said the success of the prosecution is dependent on the quality of evidence he presents before the court. He added that “barring no extraneous influences, the prosecution, with compelling evidence, should be able to wrap up these cases in record time.I wish them good luck.”

Abegunde said the PPA remains the only law guiding public procurement in the country, and trial for any perceived crime committed in relation to public procurement must be brought under the Act.

“We are not saying the law is perfect, having been enacted almost over eight years ago. But I think we should continue to apply it to enable us understand its shortcomings and move for amendment when necessary.

“I recall that public procurement practice in the country before the enactment of the PPA, was done unprofessionally, inefficiently and ineffectively as it was based on the Treasury Circulars of 1958, which provided only guidelines on public expenditure management.

“The guidelines of these circulars on public procurement practice were grossly inadequate and created rooms for malpractices and high level corruption in contract management,” Abegunde said.

Nwanchukwu noted that the defendants could only be successful by the strength of the defence they put up.  He argued that there is hardly any law without its loopholes. He noted that the defence could explore these loopholes, where they exist, and puncture the case of the prosecution.

“I do not know the facts of these cases now, but if they are in relation with the arms contracts, which has to do with national security or defence, the defendants could rely on the provision of Section 15(2) of the PPA in their defence,” he said.

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