Africa-Press – Malawi. Recently, Mulanje District Council was commended for spending a measly K26.2 million for the construction of two community day secondary schools (CDSS’s) and a paltry K50 million towards the construction of a magnificent police unit using District Development Funds (DDF). And the Ministry of Education was all smiles for employing communities to construct 94 low-cost classrooms (as part of the COVID-19 response in the education sector) which cost government an average of K4.4m per single classroom block but would have cost government K20m per single classroom block had the work been done by a contractor. Where I hail from and reside (Likoma Island), MK4.4m can only procure the Council a public pit-latrine and MK76m could only procure the Council a roofless medium-size, single-story office building shell. What should we make of such outsized disparities in values for public money?—the procurement processes in place are inadequate to protect ‘public interests’, instead have provided rich picking and fuelled corruption because the processes fail to address situations where both parties (procurement personnel and bidders) are corrupting the process (through collusion) due to the vulnerability of decision-makers (procurement personnel) to be captured by ‘private interests’.
Although it is generally accepted that corruption cannot be eliminated completely, it can, to a great extent, be managed. To detect and thwart corruption during the procurement process, an effective oversight system needs to be in place, capable of providing comprehensive access to information regarding procurement rules, regulations, and procedures, and information explaining these procedures to all interested bidders but more importantly have wide legal authority to investigate and sanction the participants in the procurement process (procurement organizations and bidders) for non-compliance with procurement rules, regulations, procedures and the attendant contractual liabilities or obligations.
There are dozens of ways procurement processes can be corruptly tailored/manipulated to favour a particular bidder―procurement officials can disqualify (on the basis of spurious technical infringements) all lower priced bidders to favour a particular bidder or use non-objective decision criteria or the inadequate weighting of the various criteria to favour a particular bidder or weights of different components of evaluation criteria can be ‘fixed’ to give more points (that may not be required by actual project needs) to favour a particular bidder; procurement officials can prepare biased tender documents to favour a particular bidder or give advantageous tender information to a favoured bidder during (or before) the tendering process (sensitive or non-public information can be disclosed earlier to a favoured bidder) or formulate bid evaluation criteria which could be fulfilled by only a favoured bidder or a bid evaluation committee can set such an evaluation criteria that fits only a favoured bidder to be awarded the contract albeit in an open competitive tendering process; procurement officials can set such criteria or manipulate bills of quantities that only a bidder with prior knowledge wins or an award to an initial low bid price with “hidden” possibilities to expand the contract at a later stage or declare ‘emergencies’ and call for ‘sole-source contracts/single source/no bid’ to avoid the competitive bidding process altogether or add fictitious bidders or ones unlikely to submit responsive or competitive bids just to show process was competitive. I mistakenly believed that the Public Procurement and Disposal of Assets Authority (PPDAA), established under Section 4, owed its existence to the need to impartially and effectively regulate and monitor procurement processes, fairly and rigorously enforce violations (any manipulation of procurement processes for corrupt ends) with substantial penalties.
PPDAA is a fully-fledged public body with legal authority to impartially monitor procurement activities by public sector organizations and make sure the procurement legislation and the enforcement process is being followed in practice (which includes investigation and sanctioning of procuring entities). PPDAA certifies procurement activities as fully in compliance or not (issues a “No Objection” for procurements) as mandated under Section 6(1)(b-c). PPDAA has dubiously (if not corruptly) given its stamp of approval to quite a few multi-billion non-compliant procurement contracts. For example, the Mararka-Bangula railway line reconstruction contract got PPDAA’s a “No Objection” to procurement although its evaluation openly contravened Section 45(1-2). Or the NOCM fuel supply contract that got PPDAA’s “No Objection” to procurement although it had ‘no bid prices‘, in open contravention of Section 43(2) with obvious ‘irregularities and suspected corruption’ surrounding the procurement process. Or the supply of MAREP Phase 9 materials contract that got PPDAA’s “No Objection” to procurement although there were, again, obvious ‘irregularities and suspected corruption’ surrounding the procurement process. And PPDAA’s failure to play its lawful role in ensuring transparent, accountable and fair disposal proceedings of public assets as stipulated in Section 31 and prevent the Tobacco Commission house sales debacle of long-banned-sale of institutional houses and many similar sales ‘fraught with numerous irregularities’.
I have observed PPDAA corruptly countenance upwards adjustments of the price of competitive bids by as much as 50% during Bid Evaluation or Negotiations with the Lowest Evaluated Bidder in open contravention of Sections 44 (3-5) and 47(1-2) of its guiding Act and by as much ten-fold in a case of single sourcing where the price of the work had already been agreed to or taken into account in the evaluation methodology.
An international Public Procurement rating agency, Transparent Public Procurement Rating (TPPR), surveyed how PPDAA discharges its powers and functions in overseeing procurement processes (pre-tendering/tendering/post-tendering) and gave PPDAA a D-minus (52.7%) in terms of efficiency/transparency/accountability and integrity/competitiveness and impartiality/uniformity of the its legislative framework. It observed that PPDAA fails to comply with a legal requirement (as stipulated in Section29(2)(d)) to collect procurement information from procuring entities, who, despite being obligated by law to keep records of all procurement activities and send them to the PPDAA, often fail to do so. The PPDAA is only able to capture minimal information about ongoing procurement opportunities in the country which makes it difficult for PPDA to effectively monitor and thwart possible manipulations of procurement processes for corrupt ends. TPPR advises PPDA to consider transitioning to a centralized open e-procurement system where procurement related information is automatically generated and stored as procurement procedures are conducted, which would be run by the PPDAA and enable it to fulfill its functions with much greater efficiency.
PPDAA has unconcernedly watched as mis-procurements and other misconducts in public procurement and disposal of public assets have become the norm in the industry, too paralyzed by ineffectiveness to exercise its mandate under Section 6(1)(j) but this has not stopped PPDAA from putting its stamp of approval on corrupt misdeeds. PPDAA will continue to be an enabler of corruption in procurement until such a time Office of Ombudsman and ACB will seek to hold PPDAA accountable too.
Contribution by: Chisala, Maxwell L. Short Bio: I am a native of the beautiful island of Likoma (Malawi) with unmatched passion for writing on critical issues affecting the legal, social and economic development trajectory of the country
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