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Untangling bureaucratic procurement processes

M S Siddiqui | Published: July 31, 2019 21:48:18 | Updated: August 04, 2019 21:20:54


Bangladesh has a public procurement system that includes the Central Procurement Technical Unit (CPTU) that regulates procurement and procurement laws with rules and associated documentations. It is headed by a Director General, supported by three directors and a number of staff members and officials. As per the Public Procurement Act 2006 (PPA), CPTU has the mandate to regulate and monitor public procurement for different departments of the government. CPTU is a unit within the Implementation Monitoring and Evaluation Division (IMED) of the Ministry of Planning that is headed by a Secretary. It monitors physical and financial performances of the development projects and prepares quarterly, annual and, in some cases, special reports for the policy-makers.

If the purchasing authority does not follow the law and rule or the bidder is aggrieved by their decisions in some way, then the bidder can submit a written complaint to certain officials. Chapter 12, Clause 56 and 57 of Public Procurement rule, 2008) procedure comprises the following: (1) The tenderer submits the complaint to the Procuring Entity (the Project Director (PD), Line Director (LD), Project Manager (PM), Procurement Officer, Officer assigned for Procurement who issued the Tender or Proposal Document), (2) If the tenderer does not receive the response within seven working days or is not satisfied with the response then complaint can be submitted to the Head of Procuring Entity (HOPE). HOPE should respond in three working days, (3) If the tenderer is not satisfied with the response from HOPE, the complaint can be submitted to the Secretary of Ministry. Secretary of Ministry should respond within seven working days, (4) If the tenderer is still not satisfied with the response, then the tenderer may wish to consider pursuing the appeal through the CPTU Review Panel (RP).

The complainant can appeal to a RP only if the bidder has exhausted all of his or her options of complaints to the administrative authority (i.e. Secretary) under Rule 57 of PPR-2008. The Review Panel shall issue written decision within a maximum of 12 working days.

The review at the administrative level provides an opportunity for the correction of mistakes, but cannot be considered as an independent review. Very few complaints are submitted to the RP due to the high threshold and high deposit requirements. In practice, the majority of procurement complaints are submitted to the courts of law.

The public procurement system in Bangladesh therefore lacks an effective mechanism for challenging procurement decisions and falls far short of international standards, such as those set by the United Nations Convention against Corruption, which Bangladesh has ratified and requires an effective system of review and appeal (article 9-1-D). Timescales for both submission of complaints and appeal and, the issue of decisions are short compared to many other countries.

Once the complainant brings the complaint to the review committee, this last and final step will be reviewed by an 'expert committee' composed of (1) a senior retired government official, (2) a technical expert and another expert may be appointed by Bangladesh Federation of Chamber of Commerce & Industries.

The existing review and appeal processes for procurement are exceedingly bureaucratic and multi-layered. As a result, this discourages aggrieved tenderer/applicant from seeking legal remedies. As seen above, for the same and the one legal injury a potential participant needs to resort to a plurality of channels. Decisions of the review panel are, however, subject to judicial review by the Supreme Court's High Court Division (HCD). The complex bureaucratic procedures of procurement and complaint redressing are also under pinned by open-ended discretion, which may foster corruption.

There should be some check and balance of punishment for irregularity by the government officials, who acts in contravention of the Act or Rules 2008. They should be made amenable to departmental punitive actions on the ground of 'misconduct' as defined in the disciplinary rules applicable to government servants. Additionally, or as an alternative to the departmental measures, criminal prosecutions may also be initiated against such a recalcitrant officer/employee for appropriate offence(s) of corruption or embezzlement of public funds. Lastly, debarment of an officer/employee, found involved in twisting or contravening the provisions of the PPA/PPR, from future procurement practices can be considered.

PPA also imposes an obligation on the procuring entity to ensure that none of its officials or members of staff is engaged in corrupt, fraudulent, collusive or coercive practices during the processes of public procurements. The existing procurement law has, thus, sought to prevent corrupt practices likely to be adopted both by the government officials and the participating entities/persons.

But all these procedure are off-set with professional immunity. The Public Procurement Act 2003 has given immunity to the purchasing officials for protection of action taken in good faith. Section 69 from the Act reads "No suit, prosecution or other legal proceeding shall lie against the Government or any public servant for anything which is done or intended to be done good faith in pursuance of this Act".

Bangladesh has not yet established the office of ombudsman generally to investigate into charges of corruption in public offices. Nor is there any centralised ombudsman-like office to oversee government purchases.

Donor agencies have suggested that CPTU be transformed to an authority with greater autonomy and strengthened structure. Other recommendations include increased focus on the demand side of reforms through participation of citizens/ beneficiary groups/ stakeholders in the monitoring of procurement process and outcomes; more use of Right to Information facilitating information to the stakeholders such as policy makers, public procuring organisations, bidding community, private sector, and the beneficiaries.

The existing law should be amended to allow creation of the proposed authority and some legal amendments to the existing Public Procurement Act.

The procurement practitioners will be accredited based on relevant practicing experience, training, and professional/academic qualification. Detailed requirements for each of these accreditations tier will need to be developed. A Professional Certification Board under CPTU/Authority will issue certificates, and CPTU/Authority may collaborate with international organisations and/or universities to undertake such accreditation process. Accredited practitioners can have unique identification numbers which will allow tracking the practitioners' experience and performance in terms of executing procurement functions. Procurement practitioners will progress through the accreditation tiers by acquiring required experience, training and professional/academic qualifications. Procurement training programme under this project will be aligned with the accreditation programme.

The experience of World Bank says- Citizen Engagement (CE) at various levels - both local and national -- will be enhanced and institutionalised throughout the country. Bangladesh has taken the measure for CE. In this regard, a 27-member Public-Private Stakeholders Committee (PPSC), headed by the Minister of Planning, includes representatives from the business community, private sector, bidding community, civil society, media and academics.

But there is no visible action of PPSC and there have been no reforms in the laws and practice of procurement.

At the moment, the government is actively working on a new law, namely Bangladesh Public Procurement Authority Act, 2019. Under this new law, the authority will control, supervise and oversee government procurement. The proposed authority will consist of the Minister for Planning as the chairman; Secretary of Implementation Monitoring and Evaluation Division, Ministry of Planning; Vice Chairman and representatives from Ministries of Finance, Law, Environment, Telecommunication and four representatives of four major buying departments of the government. The Executive Chairman, BPPA, IMED will be the Secretary. Unfortunately there is no room for others in the proposed Authority other than government officials.

A programme should be taken under this project to professionalise public procurement officials with necessary recognition to practice procurement through a four tier process- (1) Public Procurement Associate, (2) Public Procurement Professional; (3) Advanced Public Procurement Professional; and (4) Fellow Public Procurement Professional. Besides, for procurement data analytics and IT business processes, there will be a specialised stream, namely, Procurement Data Specialist.

The draft Public Procurement Authority Act should be amended to employ certified procurement experts. PPSC should be empowered and be facilitated to act according to its mandates. The purchase entity, review and appeal authority should have representatives from different stakeholders and civil society. It should have sufficient qualified and certified procurement experts.

M S Siddiqui is a legal economist

mssiddiqui2035@gmail.com

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