Hage G. Geingob
The Presidency has been keenly following the ongoing public debate over reports in the media of alleged irregularities in, and unhappiness about, the proposed award by the Central Procurement Board of Namibia of procurement bids to various bidders in a procurement process of clinical medical goods for the Ministry of Health and Social Services.
Some have pointed fingers at the CPBN for having selected bidders, whose bid prices, according to allegations, are disproportionally higher than those of other qualifying bidders, whose bids were allegedly rejected on flimsy grounds.
There are also allegations that some bidders may have submitted false information during the procurement process.
This public debate, when made without malice or political grandstanding, and within the confines of principled and informed discourse, is an encouraging and welcomed part of our cherished democracy.
Since independence and over the
years, the government took immediate steps to reform the public procurement system with a view to promoting fairness, equality and competitiveness. It was for those reasons that the Tender Board Act of Namibia was brought into force during October 1996, repealing all colonial Ordinances and laws through which the then public procurement system only benefitted a select and formerly advantaged group of our society.
Regrettably, notwithstanding the promulgation of the Tender Board Act, over the years, between 1996 to 2017, government continued experiencing serious governance problems in the procurement of public services and goods. In certain cases, government received substandard goods and services, while in some cases, through corruption, incompetence or negligence, government was made to unjustifiably pay more for goods and services due to tender awards being made to inexperienced or incompetent tenderers.
Of particular concern was when government, almost invariably, paid highly inflated prices for goods and services that would have been cheaper had the responsible officials carried out their work competently and diligently.
The subsequent promulgation of the Public Procurement Act, 15 of 2015, which came into force in April 2017, was meant to rectify such abuses of the system. The primary object of this law is, amongst others, to promote integrity, accountability, transparency, competitive supply and legality.
One of the significant reform principles introduced by this law is its application to the central government and all government agencies, including public enterprises. In accordance with the requirements of separation of powers, the function of public procurement awards was given to an independent body, the Central Procurement Board of Namibia, in respect of a bidding process beyond a prescribed amount.
That is the body which, in this medical tender saga, has statutory power to evaluate bids, to award bids – and more importantly, under section 54 of the Public Procurement Act, to cancel a procurement process on limited and circumscribed grounds specifically set out under section 54(1)(a) to (g). The CPBN was and remains under a legal obligation to award bids to the bidder with the lowest evaluated substantially responsive bid that meets the qualification criteria.
In the reported tender, the CPBN – not members of the Executive or the President – is therefore the appropriate functionary with the power to call for bids, evaluate them and make awards and, in defined cases, cancel the procurement process.
The CPBN is, therefore, the body that has a direct responsibility to ensure the objects of the Public Procurement Act, including value for money and the fact that the lowest substantially responsive bid must be selected, are not subverted through corruption, unfair preference of some bids over the others and other irregularities.
In case of bidders supplying false information in the process of submitting bids, the Review Panel is empowered under section 68 to debar or disqualify bidders involved in any malfeasance listed under section 68 of the Act. The President understands that the minister responsible for public procurement has since published Codes of Good Practice, particularly when it comes to the defined and prescribed categories of preferences as required of him under section 70 of the Act.
Significantly, the Public Procurement Act gives aggrieved bidders a right to request for internal reconsideration of the award through a recently introduced Amendment Act. After the internal reconsideration process, aggrieved bidders may approach the Review Panel – and after the Review Panel hearing, they can approach the High Court of Namibia.
The President, therefore, believes that the recent reformation of the public procurement system through the introduction of the Public Procurement Act, as amended, provides an effective legal framework to promote good governance, provided that those given responsibilities at CPBN carry out their work effectively, fairly and diligently.
In the same vein, the Act provides mechanisms and structures to deal with any irregularities; it also provides remedies to address such irregularities.
The President is deeply disturbed by allegations that the CPBN may, in some cases, have made awards to bidders other than those with the lowest substantially qualifying bids as required under section 55(1) of the Public Procurement Act, thereby putting government at risk of paying in excess of what it ought to pay had awards been made to the lowest qualifying bidders.
The President, without seeking to inappropriately interfere with the statutory process, calls on public functionaries in government ministries, public enterprises and the CPBN to ensure the Public Procurement Act, its Regulations and Codes of Good Practice are applied strictly, and that all instances of irregularity, corruption and non-compliance with the law are, with immediate effect and without fear or favour, investigated and addressed fairly and transparently.
It is reassuring, as the President was made to understand, that various bidders have since, in accordance with the law, asked for a reconsideration of the concerned bidding process in the disputed medical tender. For the sake of clarity, Sec. 55(4)(D) of the Public Procurement Act, as amended, makes it mandatory that an aggrieved bidder cannot ask for a review by the Review Panel before exhausting the internal reconsideration process by the CPBN or the public entity
The President, therefore, urges lawmakers and other members of the public, who are calling for the President to cancel the tender, to familiarise themselves with the laws they have passed in the legislature and in particular the provisions of the public procurement Act. For anyone intending to approach the courts on this matter, one must understand legal processes pertaining to locus standi.
A number of individuals, including some politicians, have publicly called on the President to cancel the whole tender process on what appears to be the wrong assumption that he has such statutory power. This call appears to be based on the President’s Directive to the Minister of Works and Transport during 2015/16 to cancel the multi-million tender on the upgrade and rehabilitation of Hosea Kutako International Airport. That tender cancellation occurred prior to the coming into force of the Public Procurement Act in 2017.
The cancellation was also made at a time when the procurement law, i.e., the repealed Tender Board Act, was only applicable to government and not to public enterprises. The President in that case relied on a legality basis to cancel the tender process because the award was made by an official (the former Permanent Secretary of the Ministry of Works and Transport) who had absolutely no power whatsoever to make a tender award.
The President has also been advised that in the meantime, the Supreme Court of Namibia, in a judgement delivered on 3 July 2019 (in the Ministry of Education case), has dealt with the issue of cancellation of tenders at the direction or instruction by members of the Executive without having the direct authority to do so. The Supreme Court found the cancellation of that bidding process to have been irrational, unfair and unlawful. In fact, the then Directive by government to the Tender Board to cancel that tender was found not to have been authorised by the law.
The President is a champion of the rule of law and therefore has an obligation to respect the law. This means the ongoing administrative process relating to the reconsideration of the medical tender must in accordance with the provisions of the sanctioning law be carried out by those who are the appropriate repositories of that function and power.
The fact that the President is
constrained by the requirement of the rule of law to allow the ongoing reconsideration process at the CPBN does not, however, derogate from the fact that he is deeply concerned by what appears to be a serious allegation of dereliction of duty and lack of diligence on the part of the CPBN if the media statements are found to be factually correct.
The President, in case of investigation and discovery of corruption or collusion in any public tender process, expects consequences of law to take place.