By Mohammed Bougei Attah
I have received several phone calls from several public officers, students and practitioners in procurement requesting me to intervene in the ongoing discourse and to give an opinion on the interpretation of the words in the new Finance Act 2021 which states as amendment in Section 22(5) of Public Procurement Act (PPA) that “The decision of all Tenders Boards shall be confirmed respectively by the Political Heads of the Procuring entities provided that the political heads are not the chairmen of the Tenders’ Board “
In another instance, at a meeting of select CSO leaders in Abuja recently, some of my colleagues accused me of keeping silence in the face of unclear position of certain provisions in the 2021 Finance Act affecting procurement processes.
Though it is the statutory responsibility of BPP to provide answer to this question, as a stakeholder in the Nigeria enterprise and a procurement expert, I will like to contribute to the debate first, by presenting the legal verdict of the Court of Appeal and Supreme Court of Nigeria on the key words involved in the subject matter.
Setting the ball rolling, let us begin by quoting the dictionary meaning of the word approval, which means the act of confirming, ratifying, assenting, sanctioning, or consenting to act or thing done by another. This definition was upheld by the Court of Appeal in the case of KURE Vs K.S.L.D.S.C (2003) 2 NWLR (Pt.807)322 at 339.
In other words, when the act of someone is subject to the approval of another it means that the exercise of powers vested is not absolute or unrestrained or unconditional. This is also the position of the Court of Appeal KURE Vs K.S.L.D.S.C supra at pages 339-340.
In the case of the Supreme Court, it stated that the word “approve” when used with respect to legislative drafting, it means to convey assent whereas in the ordinary parlance it means to accede to, accept, acquiesce in, adopt, affirm, agree to, allow, assent to, authenticate, authorize, be in favour of, be satisfied with, endorse, confirm, consent to make valid, sustain, uphold, support etc. (See Akintokun vs L.P.D.C (2014) All FWLR(Pt 748)920 at 966)
Also in the case of Utomudo vs Military Governor Bendel State (2014) 11 NWLR (Pt 1417 )97 the Supreme Court also defined authorize to mean “to give a formal approval to” hence it is synonymous with the word “Approve”. Again, ratification means a ‘confirmation and acceptance of a previous act, thereby making the act valid from the moment it was done’. This is the position of the Court of Appeal in the case of Mikano International Limited vs Ehumadu (2013) All FWLR (Pt.667)658 at page 690. In another judgment, the Supreme Court maintained that the word ‘recommendation’ means an action that is advisory in nature rather than one having any binding effect. (See Cookey vs Fombo (2005) All FWLR(Pt.271) 25 at 41.
Flowing from the above definitions, it is my candid view that in the absence of further directives from BPP therefore, “the decision of all Tenders Boards shall be confirmed respectively by the Political Heads of the Procuring entities provided that the political heads are not the chairmen of the Tenders Board“ implies that “the decision of all Tenders Boards shall be approved respectively by the Political Heads of the Procuring entities provided that the political heads are not the chairmen of the Tender’s Board.
Consequently, the above submission implies that the Tenders Board lacks absolute autonomy, and which mitigates and contravenes with the cardinal principles of Transparency, Accountability and Open Competitiveness as enshrined in the PPA 2007. Therefore, the failure of the Political heads of procurement entities to comply with the provisions of the new Finance Act 2021 amendment in Section 22(5) of Public Procurement Act (PPA) is liable to breed corruption and breech Due Process as a result of the sway of influence that these Political heads wields.
Attah is a procurement professional and National Coordinator of Procurement Observation and Advocacy Initiatives