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Public Officers Participation in Procurement

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Public officer`s participation in procurement

Post  mauka on Wed Jun 16, 2010 5:39 pm

I have been closely following this argument in order to understand the general ideas, secondly, unearth the genesis and the reason behind of the existence of Section 73(3) of the Public Procurement Act, No. 21, 2004, which provide that "Procurement shall not be made from a public officer or associate of a public officer acting in a private capacity, either alone or as a partner in a partnership or as an officer of a company". Also, I spent enough time to read and analyze the scope of Section 3(2) and 3(3) of the same Act: which provide that

(2) For purposes of this Act, a person is presumed to be an associate if:
a) in the case of a public officer, that person is the public officer’s husband, wife or relative, or a husband or wife of the relative of the public officer;
b) that person is in partnership with the public officer; or
c) in the case of a body corporate, the public officer is a controller of the body corporate or the public officer and the persons who are his associates together are controllers of it.

(3) In this section, “relative” means brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendent and references to a husband or wife, and for the purposes of this subsection, a relationship shall be established as if any illegitimate child, step child or adopted child of a person had been a child born to the person in wedlock.


But at the end of the day, basing on the today`s public officers integrity to be in doubt and decline in public procurement ethics between and among the public officers (some of them), I think Section 73(3) of PPA, 2004 is very essential. This section is vital in a sense that, it is one of the important checks against the arbitrary use of public office and power and therefore, should be implemented. It will need amendment only when the public officers assure the public beyond all reasonable doubt that, “there is ethical practice and fair dealing in the whole process of procurement of goods, works and services”

My dear forum members, the problem is that “ how ’’ can we protect public money and our procuring entities from rogue spending, conflicts of interest, favoritism, undugulization and other procurement frauds caused knowingly by public officers without imposing strictly rule?

Or is there any well organized internal control system in place within the PE`s that ensure that all potential conflict of interests are known and taken into account? If internal control is in place, is it effective? These are critical questions; we need to ask our self. Thus way the above section is vital and at least can provide a fair dealing, fair ground, and unquestionable actions between the suppliers and public officers.

mauka

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Re: Public Officers Participation in Procurement

Post  Michael Chilongani on Thu Jun 03, 2010 9:28 pm

And my understanding of Regulation 79(5)/GN98/2005 referred by RJM is that this talks about an alternative method of recruiting individual consultants ‘through’ (not from) governmental or international academic organizations or consulting firms.
The above referred alternative is an additional to method 1 prescribed under R79(2)/GN 98/2005 under which the PE may (‘by its own’) recruit individual consultants ‘directly’….

Thus to my opinion, even employees of public bodies (including the said Governmental academic organizations) are ‘public officers’ and shall not be hired as individual consultants. The Governmental Academic Organizations may assist the PEs in the process of recruiting only.

The prohibition is also prescribed under Regulation 6(4)/GN 98/2005 stipulating that ‘Selection of a consultant shall not be made from a public officer in private capacity, either alone or as a partner in a partnership or as an officer of a company!

RSM your concern really needs a serious scrutiny otherwise Public Officer seems to be unfairly treated by the Legislation.

Michael Chilongani

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Re: Public Officers Participation in Procurement

Post  RSM on Thu Jun 03, 2010 8:12 pm

RJM

Actually this is one of the areas of ambiguity. But since the prohibition is in the Principal Legislation, then subsdiary legislation in this particular case may be construed to be ultra-vires ( I am not sure if this is the right word here- you can help me out).

Going by the Act - the definition of public official definetely includes them - CHECK DEFINITIONS OF PUBLIC OFFICER AND PUBLIC BODY GIVEN BY CHILONGANI ON HIS CONTRIBUTION ON 26 MAY 2010.

Public body/Authority means: -
i). Any Ministry, Department, or Agency of Government
ii). Any Body Corporate or Statutory body or Authority established for the purpose of the Government
iii). Any Company registered under the Companies Ordinance …..
iv). Any Local Government
v). Any Parastatal Organization

 Public Officer means
i). Any person holding or acting in an office of emolument in the services of the Government
ii). A person holding or acting in the office of the Minister in the Government
iii). An employee of any Body corporate such as is referred to the definition of the public body or public authority.
iv). Any person conducting negotiations ……
v). A person who is a consultant to the public body

ARE THEY SPARED?

RSM

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Re: Public Officers Participation in Procurement

Post  RJM on Wed Jun 02, 2010 1:28 am

RSM
R79(5)/98/2005 states that "The individual consultant may also be recruited through governmental or international academic organizations or consulting firms". One wonder whether the individual consultants recruited from the governmental academic organizations are public officers in line with S73(3)/PPA2004?? I believe even them can be effected and apply "scrubbing my back and I will scrub yours" in the instutions they are representing. Where is the fairness if your closing the doors to others while opening to others??

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Re: Public Officers Participation in Procurement

Post  RSM on Thu May 27, 2010 10:32 pm

Chilongani

Let's pause for some time and hear other forum members's opinions.

GUYS PLEASE COMMENT ON THIS- IF YOU ARE A PUBLIC OFFICIAL IT AFFECTS YOU!!!!

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Re: Public Officers Participation in Procurement

Post  Michael Chilongani on Thu May 27, 2010 8:42 pm

I highly concur with the observation that there was some genuine good intention but ‘it went too far’

Before going to the issue of back scrubbers for mutual benefits, let us first consider the poor innocent employees who are not even in the position of scrubbing one’s back for mutual benefit and they have relatives who are wajasilia mali!. If the previous translation is correct, the employee is committing an offence pursuant to section 87 (f) by ‘contravening or failure to comply with the provision of the Act and Regulations made under the Act’ and on conviction is liable to a fine not exceeding TZS 500,000 or to imprisonment for a term not exceeding three years or both such fine and imprisonment!!!!.

While reading the sentence the judge would clear his throat and read as follows: -

Mr XYZ you are convicted for an offence prescribed under PPA/2004 section 73 (3) of which you being an employee of a Parastatal Organization ABC, your uncle ‘a trader’ was awarded a tender to supply stationery to a Municipal Council x (a public Body) thus contravening the aforementioned sections that states ‘No procurement shall be made from a public officer which according to section 3(2) it include your relative!!! (the uncle). Due to this conviction and in order to teach others on such misconduct you are hereby imprisoned for a period of three years after which you are to pay a fine of TZS 500,000.00!!!!

If the above judgement would sounds ridiculous then there is need to effect the amendments.

Likewise, I am not a proponent of the philosophy of back scrubbers for mutual benefits because: -
 Awards are not approved by individual persons it is rather the decision of the Tender Board unless you meant all the backs of Tender Board members are scrubbed for a return scrub.
 There are enough balance and checks in the process of procurement that involves different groups including The PMU, Evaluation team, Tender Board and the Accounting Officers.
 If tenders are awarded on the basis of inducement which is a prohibition under Regulation 101, then let it be dealt in that perspective.

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Re: Public Officers Participation in Procurement

Post  RSM on Wed May 26, 2010 8:52 pm

Chilongani,

I think the intention of this provision was to curb situations where someone working in one organisation should not use another person, who is a friend, working in another organisation to award a contract to his company. The issue is that may be it went too far.

In the absence of this provision, how will we deal with such a situation of "scrubbing my back" by awarding a tender to my company or my relative's company in your organisation and "I will scrub yours" by awarding a tender to your company or relative's company in my organisation?

RSM

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Re: Public Officers Participation in Procurement

Post  Michael Chilongani on Wed May 26, 2010 5:43 pm

Dear Forum members

Having gone through the provisions cited by RSM I am of the opinion that if the translation perceived is correct, then the provisions are quiet unfair to the public officers. Let us try to grasp the meaning together by first referring to the interpretation of two jargons ‘public body’ and ‘public officer’ as prescribed in the Act.

Pursuant to Section 3(1), of the PPA/2004; -
 Public body/Authority means: -
i). Any Ministry, Department, or Agency of Government
ii). Any Body Corporate or Statutory body or Authority established for the purpose of the Government
iii). Any Company registered under the Companies Ordinance …..
iv). Any Local Government
v). Any Parastatal Organization

 Public Officer means
i). Any person holding or acting in an office of emolument in the services of the Government
ii). A person holding or acting in the office of the Minister in the Government
iii). An employee of any Body corporate such as is referred to the definition of the public body or public authority.
iv). Any person conducting negotiations ……
v). A person who is a consultant to the public body

Now as quoted by RSM it means pursuant to section 73(3)/PPA/2004 procurement shall not be made from the above named public officers including associates and relatives. Section 73(3) is further repeated by Regulation 8(4) of GN 97.

This implies that if Mr XYZ is an employee of say a Parastatal Organization ABC then not only ABC as a PE is not allowed to procure from Mr XYZ but ALL PEs are not allowed to procure from that person. Moreover the prohibition is extended to relatives and associates of Mr XYZ’s just because of his being a public officer of one public body as so interpreted in the above cited provision!!

If the above understanding represents a correct translation of the provisions, then being a public officer may be construed to be a pandemic that is worthy avoidance by relatives and associates.

To my opinion, prohibitions prescribed under Regulation 101/GN97 sub regulations 1 up to 11 constitutes reasonably fair provisions than the translation inferred from the sections of the Act. Pursuant to Regulation 101 (6) Any member of an approving authority or a member of staff thereof or of a procuring entity or member of staff shall declare interest that they may have in any supplier ….. and SHALL take no part in, nor seek to influence in any way, procurement… in which that supplier is involved or liable to become involved.

The translation deduced from R101 is that, procurement may be made from public officer, associates or relatives provided such an officer declares the interest and takes no party in decision making or makes no influence on decision makers.

Now with the later translation, it means there is an implied translation contradiction between the regulation and the act. However, the problem is that in such a situation, the provision of the Act prevails and thus overruling the regulations.

I think there is a need of effecting amendments so that the practical and fair expression prescribed under R101 is reflected in the sections. It seems the Act was drafted with a defunct Arusha declaration provisions in mind. I don’t think the Company Registration act of 2002 has such discriminative restrictions on persons eligible to form a Company and the business transaction restrictions once a member is a public officer.


Last edited by M.Chilongani on Wed May 26, 2010 5:46 pm; edited 1 time in total (Reason for editing : spelling)

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Public Officers Participation in Procurement

Post  GadielCM on Tue May 25, 2010 6:56 pm

RSM,
I did not gone thorough with your submission since I read at first time. And after your second submssion, I read thoroughly so as to get the insight concept for you mean.

From your submission and for my opinion and with consideration of the today public official practices, I see its not fair for this provision to be there because what needed in public procurement proceedings is the adherenec of the PPA 2004 and its regulations. Not only that, it states if at all hapen there is conflict of interest fo cited secetion, the public officer in the PE, must declair his/her interest for the company sought to participate the tender, and therefore he/she will not be envolved in any decision during the procuremnt procedures.

In additional to that, if the person declaired his/her interest, and happen the company with relation to public officer declaired won the tender, for my self there is no problem and no any impact for implementation/adherence of PPA 2004 and its regulations.

May be for this discussion, can we talk a little bit the so called Tume ya Maadili ya Viongozi with its implication) with conjuction with our cited sections on procurement matters?, I think we can dig something fruitfull which will enable on improvement of some sections in our procurement laws.

I submit.

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Re: Public Officers Participation in Procurement

Post  RSM on Tue May 25, 2010 11:44 am

Dear Forum Members. This topic was posted long time ago. It may have missed your attention. I bring it to the fore again to see if you can contribute on this important issue of public officials involvment in procurement.

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Public Officers Participation in Procurement

Post  RSM on Wed Oct 07, 2009 12:26 pm

According to Section 73(3) of the Public Procurement Act 2004, "Procurement shall not be made from a public officer or associate of a public officer acting in a private capacity, either alone or as a partner in a partnership or as an officer of a company".

And according to Section 3(2) and 3(3) of the same Act:

(2) For purposes of this Act, a person is presumed to be an associate if : (a) in the case of a public officer, that person is the public officer’s husband, wife or relative, or a husband or wife of the relative of the public officer; (b) that person is in partnership with the public officer; or (c) in the case of a body corporate, the public officer is a controller of the body corporate or the public officer and the persons who are his associates together are controllers of it.
(3) In this section, “relative” means brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendent and references to a husband or wife, and for the purposes of this subsection, a relationship shall be established as if any illegitimate child, step child or adopted child of a person had been a child born to the person in wedlock.


Is this provision fair to public officers? Its intepretation is that neither the intended person (public officer) or any of his relative is allowed to participate in procurement done by public bodies.

WHAT IS YOUR VIEWS ON THAT?

RSM

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