Abati’s Blunder:FEC, Procurement Council and Contract Approval By Mohammed Bougei Attah



It came with shock and dismay, the official Presidency response on the failure of Dr. Goodluck Jonathan’s administration to constitute and inaugurate the National Council on Public Procurement (NCPP) in a statement credited to Dr. Reuben Abati, Special Adviser to the President on Media and Publicity, published in the Guardian Newspaper of Sunday February 26 and captioned: Jonathan’s Cabinet: Concern over Size of Government

Quite interesting to note that since June 2007 when the Public Procurement Act (PPA) was signed by late President Umaru Musa Yar’Adua and as his Vice President then, this is the first time that Dr. Jonathan will make his intention known, apart from casual statements credited to him in some national dailies about the Council. Coming from Dr. Abati this time, one can deduce that this is the position of the President, and it is evident that the President has been misguided by his retinue of aides.

It is equally clear from Dr. Abati’s submission that the President’s Economic Team, the Attorney General of the Federation and Minister of Justice as well as the defacto management of the Bureau of Public Procurement (BPP) have failed in explaining to the President the relationship between the NCPP and the Federal Executive Council (FEC) in contract approvals, but have succeeded only in further misguiding the President and misinterpreting the law thereby aiding the President’s wrong decision on this matter.

Though Dr. Abati was clear in discussing the threshold approval limits, his statement fell short of citing which section of the PPA that says that the Council can approve certain amount of contract above the limit of FEC. Let us however assume he is drawing inference from Section 17, 22 (3) and 60 (interpretation of approving authority) of the PPA.

For the benefit of the greaterNigeriapublic, and to put the record straight, it is important to make the following indisputable facts to correct the wrong impression created in the minds of Nigerians by the Presidency. By virtue of section 5 (1) of the Nigeria constitution read together with section 148(1), 4(2) and 4(3) of the 1999 Constitution and the entire PPA, the National Council on Public Procurement has no power to approval any amount of contract, not even one naira. This position we have explained in writing to the Attorney General of the Federation and Minister of Justice via our letter of 18 and received in his office on the 22 of June 2010.

Also by virtue of the provision of the laws quoted above, the responsibilities of the Council are contained in the following sections of the PPA – Part 1 (1), Section 2, 3, 4, etc. and every other parts of the Act.  Again, there is no where in the entire Act where the claim of Presidency can be supported. The Council cannot approve any contract let alone approve an amount to the tune of one trillion naira as claimed by Dr. Abati.

Having said the above, it is equally important to correct another wrong impression as contained in the Guardian statement by Dr. Abati that the late President Yar’Adua failed to inaugurate the Council because of the same reason adduced by President Jonathan’s administration. As a fact, late President Yar’Adua did officially announce names of the members of the Council and set a date for the inauguration in the villa. The inauguration was cancelled when it was discovered via a letter sent to the President by the Chartered Institute of Purchasing and Supply Management of Nigeria (CIPSMN), one of the six part-time members, that the nominee sent to the villa was an impostor and not their representative. It was at this juncture that the President confirmed that indeed the nominee for CIPSMN was foisted illegally by some elements within the Presidency and he thereafter suspended the ceremony that did not hold again due to his ill-health and eventual demise.

Since October 2007 till date, we have engaged this subject at various levels, including media exchanges with some members of the National Assembly. It is worrisome that an important aspect of our economy can be handled with such levity for over four years now without due consideration to social implications, the many reports, memos and publications on the issue.

In a rejoinder to Hon. Yusuf Maitama Tuggar, the then House Committee Chairman on Public Procurement published in the Daily Trust of September 13 and 18, 2009 titled ‘Yar’Adua’s FEC has Become Tenders Board’ as well as to Sen. Ahmed Mohammed Makarfi’s of June 16, 2010 titled ‘Contract Award by FEC Illegal’ , I had defended the FEC’s position on the ground of the law, and providing some explanations as to the duties and responsibilities of the FEC in contract approvals under the constitution and PPA.

Our argument about the above then was and still that Section 5 (1) (2), 4 (2) (3), 13, 14, 16 – 24 of the Constitution in addition to the President’s Oath of Office read together with Sections 2, 22 (3) of the PPA, the FEC has powers to approve (or assent) contracts awarded by Ministries, Departments and Agencies (MDAs) of government and the power to award contract based on threshold set by the NCPP.

As stated in the rejoinders above, and copied to the Attorney General of the Federation and Minister of Justice, under the Constitution and PPA, there are two approving authorities for contract implementation and one for contract award, as well as authority to conduct public procurement process. They include for contract implementation, the President through the FEC and Ministers while heads of MDAs, that is Permanent Secretaries and Director General approve contracts award at each level.

Let me state again for the purpose of emphasis that the law does not give the procurement Council an approving authority which is purely an executive power. All the MDAs are representatives of the President; as such contract awarded at each level must have the assent of FEC under the supervision of the President, especially if such contract sum is above MDAs’ approved threshold. This is applicable for executive arm of government while the other arms also have similar responsibilities and roles based on policies on procurement.

There is no contradiction in the laws as claimed by the Presidential spokesperson. Therefore, the proposal to send a Bill to the National Assembly for an amendment of the Act will be another waste of public resources, time and an attempt to seek the powers that are already vested in constitution and the PPA for the President or FEC to approve contract above certain threshold limits as may be set by the National Council on Public Procurement.

Based on the above clarifications, we urge the President to ignore agents of destabilization in the country and give meaning and progress to his transformation agenda by inaugurating the Council in its present form, as a mark of transparency that he promised Nigerians, and as  a means to improving the social status and security challenges of the nation.

Mohammed Attah is the National Coordinator of Procurement Observation and Advocacy Initiative (PRADIN), a select group of CSO actors trained under the Federal Government of Nigeria-World Bank Economic and Governance Reform Project (ERGP)

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