In my intervention letter to the Minister of Information and Communication, Prof. Dora Akunyili, dated June 2, 2009 on the dispute involving her Ministry and other parties in the disposal of 2.3GHz Licensing Round by the Nigeria Communication Commission (NCC), the 14-page document were based on personal monitoring of the process over time, my knowledge as a student of purchasing and supply and legal review of the Public Procurement Act (PPA) 2007 as it relates to the crisis.
Though the Minister failed to acknowledge or reply to that letter which was copied to all parties involved in the dispute, including the Chairman and the Director General of NCC, the Economic and Financial Crime Commission (EFCC), the Director General of the National Broadcasting Commission (NBC), and the petitioner, it is evident that some of the errors and unresolved issues pointed out in that letter are now reappearing in this latest contract fraud in public procurement corruption.
Now, as the nation is struggling with severe economic crises, another round of frauds are committed daily which now occupies our national media – print and electronic – to the detriment of already depressed Nigerians. At the centre of this latest saga again are the Minister of Information and Communication, Prof. Dora Akunyili and her co-travelers. Others include the Director General of the Nigeria Television Authority (NTA), Mall Bello Aliyu Magawata, the NTA Tenders Board and the Director General of the Bureau of Public Procurement (BPP), Engr. Emeka Ezeh.
The revelations on this latest web of corruption and the debate generated so far would have been enough to allow for public evaluation of the happenings, but the comments by Senator Ayogu Eze, Chairman of the Senate Committee on Media and Communications, to the effect that he apologized to the DG of BPP and that “we are now wiser” with the explanation offered by Engr. Ezeh is to my mind a deceit of the highest order, an insult to the generality of Nigerians and a ploy to rubber-stamp the hidden agenda, which has provoked this rejoinder, as a means to putting the record straight so that the unsuspecting public are better informed about this latest political hara-kiri and to guide against this outpouring by an elected (or selected) leader. This summersault in his comment is coming on the heels of his earlier description of the Bureau as a Due Delay Process Office (DDPO) in less than a month ago.
From the information available on that live transmission of the event as it occurred during the session, it came to demonstrate to us once again the caliber of people we have in leadership positions, as they gradually exhibit the rot and collapse that have engulfed the nation under their supervision. Ultimately, those entrusted with public funds are now the same people looting the treasury.
The NTA contract saga as it now known began with the N8.9bn contract purported to have been awarded in 2009 by NTA which the bulk of the outstanding are smuggled into the 2010 Appropriation Bill, as the personnel in the Ministry of Information and Communications defends their budget before the Senate Committee with the oversight responsibility. The controversies evolve around the upgrading of some OB Vans, in lieu of the Under-17 World Cup. The Vans, eight in number are currently being held by a foreign firm named WTS based in London, and would not release them until the balance of money paid or a government guarantee is issued. The repairs on the eight OB Vans is said to have been completed four months ago with part payment, a counter-part funding agreement with the Ministry already paid to the contractor by NTA from the internally generated revenue. The amount paid is yet to be disclosed.
While it is a well known fact that none of the parties involved in this contract mis-procurement, including Senator Eze, the Minister, Prof. Akunyili, Mall. Magawata and the DG of the BPP, Engr. Eze have the professional capacity to engage the matter, we would however hold them responsible for their actions as public officers entrusted with public funds and for failing to heed several warnings and advises on this danger that was predicted long time ago.
To provide a useful analysis of the whole scenario and support the claims above, it will be helpful to review the statements and actions of each party, one after the other. This I have no doubt will avail even a lay man an understanding of the entire process and the criminal marriage that took place behind the scene daily in our economy. Though this is just one of the frauds committed daily, it is helpful to put it on record for posterity.
Beginning with Prof. Akunyili, she claimed the contract was not awarded by her; rather she only received three names of contractors forwarded to her by the NTA (Director General?) which she forwarded to the Federal Executive Council (FEC) for approval. Further she claimed that the planning of the contract started about two years ago before her appointment as Minister, and concluded that she is ignorant of the technicalities involved in the procurement processes.
Everyone knows that ignorance is not an excuse in law, to accept the above statement and put them as facts before a court of competent jurisdiction is to commit her to the fact that she is ignorant of public office procedures which she has been part of since July 2007. And in the spirit of ‘Rebranding Nigeria’, will she swear that this is the first contract awarded under her supervision since her career as public office holder? Of course, the answer is ‘NO’. In procurement implementation under this circumstance, no contract is awarded to three contractors at the same time and then forwards same to the FEC for approval. The questions are who are these three contractors? (One is known as WTS by the admission of Engr. Ezeh). Why did Prof. Akunyili failed to refer same to BPP for action or return same to the NTA Tenders Board, the DG or Board for implementation as contained in Section 16 (21-22), 17, 19 and 20 (1) of the PPA 2007.
In his defense during the session, the NTA Director General, Mall. Magawata simply said that an advanced payment, the counter-part funding from NTA has been paid to the contractor. In any procurement planning under the PPA, the DG of NTA is the Chief Accounting Officer for his Agency; as such he will be responsible for any action or inaction arising therein. By forwarding three names of contractor to the Minister, the NTA DG failed in my opinion to perform his role under Section 16 (20), (21), 18, 19, 20(1) and 20(2) of the PPA. Specifically, he failed to integrate procurement expenditure into the yearly budget before award of contract. Again, there is an error in the estimation of procurement budget based on approved threshold for the Agency, a failure to determine the best procurement method based on the estimated value and situation under the International Competitive Bidding (ICB) which is a violation of the Act. In summary, the DG failed under the law to ensure that estimated amount is actually available in the 2008 or 2009 Appropriation Act as the case may be. However, by sending three names to the Minister, one can assume there is no contract awarded yet.
Now coming to the role of the DG of the Bureau of Public Procurement (BPP) in this newest order, the exposition so far is a pointer and confirmation of several submissions and warnings about the lack of competence management and composition of the BPP to deal with issues on public procurement process and the economy. To review the content of his submissions and put Senator Eze’s claim to shame, let me generally relay his comments and evaluate it against his position as a regulatory organ and then allow the public to do justice by determine whether he deserve ‘a pat in the back’ as said by Senator Eze.
Engr. Emeka Ezeh admitted on the floor of the Senate, before the nation’s media crew of print and electronic that the President sent the details of the three contractors to him for review. In this chain of contract award, the bus stop is now at Engr. Ezeh’s door step. On analyzing the contract documents he found out there were errors, which include that the project (contract) was not appropriated for, neither was it advertised for prospective bidders as required by law in Section 24 of the PPA. As a follow up to this, Engr. Ezeh wrote the DG of NTA, Mall Magawata and pointed out the errors, but the NTA DG replied that they are satisfied with the selected contractors as they can match any other competitors even if when advertised.
Based on the response from Mall Magawata, Engr. Ezeh informed us that he decided to introduce a Damage Control Mechanism (DCM) and awarded the contract to WTS, one of the three contractors forwarded to him by the President, believing in his own judgment that WTS is the best of the three contractors because with only 20% down payment on the total sum of N8.9bn, WTS will give reasonable moratorium to the NTA Network Stations before the balance of 80% is paid. Further he claimed that the contractor showed incontrovertible evidence of its ability to fund the project and have has agreed that the balance of the money be spread over a period of 24 months, and as such “the offer is too good to refuse”
What a scenario! What a billion Dollar movie scene! From a layman’s view, the above scenes appear perfect, the DCM has indeed worked and the Bureau (or the DG) has saved Nigeria (government) money according to Senator Ayogu Eze. There are however many questions that begs for answers here. Let us begin with the first as our common knowledge permits. If Engr. Eze intervention was indeed a damage control, why then are we having this problem and the Senate Committee is concerned about the errors? And locating this within the ambit of the law, the next question is was the process of awarding the contractor fraudulent as claimed by Engr. Eze during his investigations? If the answer is yes, then the next question will be did Engr. Eze awarded the contract instead of returning same to the procuring entity (NTA tenders Board) as required by law? Unfortunately the Senate Committee failed to ask these simple questions that would have exposed the truth.
The answers to the above questions are simple. In the foregoing circumstances, the Bureau under Engr. Ezeh has not only become a player but a party to the contract award. In essence, he is now acting as a procuring entity instead of an independent umpire that should adjudicate on the matter when and if there is a dispute. He merely removed his uniform as a referee and become a player with Jersey No. 10. The next action is to score a goal and he did it! The President acted in line with the rule of law when he refused to approve or award the contract but forwarded the names of the contractors to the Bureau for review, which is to investigate. Since the Minister, Prof. Akunyili failed to forward same to the Bureau, the DG, Engr. Ezeh should know far more than anyone that the procedure under the law is to forward same to the procuring entity, or cause another action under the law..
By selecting one of the contractors forwarded to Engr. Ezeh, which he described as damage control, knowing that the award failed due process make him a party in the dispute. The invitation of Engr. Ezeh by the Senate Committee to explain his role in the illegality is an indictment on the DG and a confirmation of the above fact. For the benefit of doubt, Section 53 of the Act establishing the Bureau empowers it to review and recommend for investigation any relevant authority and any matter related to the conduct of procurement proceedings by procuring entities or the conclusion or operation of a procurement contract, if it considers that a criminal investigation is necessary to detect or prevent an infraction of the law
In any procurement dispute, the BPP is an umpire, a quasi-court of first jurisdiction whose pronouncements can only be challenged in the Federal High Court. By involving himself in the direct selection and award of the illegal contract makes him the biggest offender under the Act in review. The implications are that Engr. Ezeh is now a party to the award of contract and therefore lacks the legal power and moral justification to perform the regulatory or oversight function, but answerable to the criminal intention therein.
For the benefit of the unsuspecting public, procurement stages involve planning, implementation, execution and evaluation/audit. The NTA Tenders Board and Director General are saddled with the implementation and final award of contract of the OB Vans. The Tenders Board failed in their responsibility to carry out certain actions which include to advertise, solicit or invite bidders in line with International Competitive Bidding (ICB) as contained in Section 16 (21,22), 17, 19, 20 (1) 23, 43 and 45 of the PPA. The failure to obtain Performance Guarantee and award the contract before forwarding three names for approval (?) or otherwise informed the decision of the Minister of Finance not to issue a Bank Guarantee.
While it is not out of place to commend the President, Finance Minister and the Debt Management Office (DMO) for their actions, let us revert this issue back to the National Assembly, where the exposition occurred, and as they have the oversight responsibility of ensuring transparency, accountability and value for money in our fiscal expenditure.
Section 5(p) of the PPA requires that the National Assembly receive a bi-annual audit report of all Ministries, Departments and Agencies (MDAs) of government from the BPP to assist with their detention of frauds, errors and arrest cases associated with public procurement corruption. This is to ensure transparency in the management of our economy. Despite series of advises and warnings to this effect, the National Assembly has never called for this audit since the inception of the Bureau. By this action and inaction, the national Assembly has also failed in their duties to curtail public procurement corruption that we are witnessing daily. The recent outpouring against the Bureau for me is a face-saving strategy to hide the truth. The laws are available; it is only the implementers that are not available. It is possible to attempt fooling Nigerians, but Nigerians are not fools.
Flowing from the above, the apology granted to Engr. Ezeh by Senator Ayogu Eze brings us to a dangerous juncture in the implementation of public procurement in Nigeria where nepotism and selfish interest makes us sacrifice the provisions of the law. If this type of action is left unchallenged, we would have suffered a great loss in the fight against corruption. Worse still, we may have introduced into our procurement system superstructures that we may never recover from. We would also be telling the whole world that the Nigeria Senate is packed with ‘yes men’ who cannot discern right from wrong and merely sit to rubberstamp the whims and caprices of the mundane mind that cook up misprocurement and injustice at all levels in Nigeria.
The film show as it occurred on the floor of the National Assembly is just a new addition to the accumulated investigations that have not seen the light of the day. To demonstrate that the Legislators are true representatives of the people is to forward issues of criminal intentions or corruption to the anti-corruption agencies like the EFCC, the Independent Corruption Practices and Other Related Offences Commission (ICPC) and others that have the capacity for investigations and possible prosecutions. The anti-corruption organs will also demonstrate their sincerity by inviting independent experts opinion or witnesses where requires interpretations is required. Until this is done, Nigeria will continue to live in sorrow arising from the behind-the-scene activities of our leaders.
As maintained in many of my earlier submissions, including the Report of a 10-member Committee for the Review of the Public Procurement Act 2007, what Nigeria need and which the President or his cabinet members should adhere, to help us get out of this logjam is the constitution and inauguration of the National Council on Public Procurement.
Attah is the Managing Editor of NGO Network, a general interest magazine for the non-profit sector, monitoring public procurement corruption in Nigeria.
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