Prepared by NGO Network, a general interest magazine monitoring public procurement corruption in Nigeria
A.    INTRODUCTION

A resolution of the House of Representatives on March 3, 2010 mandated the Committee on Aviation to probe the controversies surrounding the award of contract for the 2nd Abuja Airport Runway by the Ministry of Aviation and the approval of the contract by the Federal Executive Council, after the debate on a motion by Hon. Dino Melaye alleging sharp practices and violation of Public Procurement Act by the official of Ministry of Aviation and all Federal Agencies connected with the contract.

As part of the process of this investigation  and identification of all persons involved in this corruption, a one day Public Hearing on the above  contract saga was held at the National Assembly on Wednesday 7th April 2010, where we submitted a Memo as an independent anti-corruption body, in response to by the House of Representatives call for memo.

B.    SUMMARY OF FINDINGS AND RECOMMENDATIONS.

1.    Fraudulent Issuance of ‘‘No Objection certificate’’ by the BPP for the award /approval of the 64billion naira Contract

The  ‘‘No Objection certificate’” ¬¬¬¬issued by the Bureau for the above project  was unduly  as it   was      not only  falsely issued  by the BPP but deliberately  and wrongly issued in   conspiracy with the  Managing Director of Federal Airport Authority of Nigeria  (FAAN) and other officials of FAAN to  inflate contract and defrauded the Federal Government of Nigeria .

2.    Lack of Transparency in the Procurement”
The proceedings, processes and decisions for the award of the contract were not made accessible to the public at large, or at least “representatives” of the public before the purported award of the contract, which would have allowed for observation and monitoring, review, comment and whistle blowing ensuring transparency.

3.    Lack of Fairness in Procurement”  
Contract award decisions were not fair but partial. Public funds are being used to favour a private contractor. The contact standards and specifications are also discriminatory as they were tailored to a particular bidder. The bidders and suppliers, consultants providing services and contractors were not selected on the basis of their qualifications and the merit of the offers. There was no equal treatment of all in terms of deadlines, confidentiality and so on.

4.    Lack of Integrity in Procurement”
The procurement process   was not honest and not in compliance with the 2007 Public Procurement Act (PPA). The best available and most suitable technical expertise is   not employed. The process of invitation to bid was discriminatory. There is no      fair and open competitive selection process which should lead to quality contractor/product/service at a fair price (value for money). The product/service/ Contract did not     take into account the legitimate aspiration and concerns of the stakeholders and Nigerians.

5.    Lack of Accountability in Procurement
Some government’s officials within the procuring entity failed to correct and complete the execution of their tasks and duties, and for the decisions and actions made in their area of responsibility for this contract.

6.    Fraudulent and Corrupt Procurement Practice
There is evidence of deliberate omission and misrepresentation of information, documents etc that misled the Executive Council to approve contract in an attempt to obtain financial benefit. The use of false document, including the Bureau’s ‘‘No Objection Certificate’’ is evident here

7.    Collusive Procurement Practice
There are evidences of pre-conceived arrangement between BPP and FAAN officials designed to achieve an improper purpose of inflating the contact sum beyond the cost approved by the National Assembly and the President in the budget. With the aim of diverting the funds in the Bilateral Air Service Agreement (BASA) account.  Collusion shall be presumed from a set of acts from which it can be assumed that there was an understanding, implicit, formal or informal, overt or covert under which each person involved reasonably expected that the other would adopt a particular course of action which would interfere with the faithful and proper application of the provisions of this Act

8.    Procurement Malpractice 
There is evidence of undue influence and abuse of office by the Managing Director of FAAN and the Director General of BPP in the award of this contact.

9.    Obstructive Procurement Practices
The Ministry of Aviation and the Agency, FAAN obstructed the National Assembly from oversight functions while the proceedings and other processes up to execution of contract were on.
10.    Lack of Value for money
The cost of N64billion payable is not reasonable in terms of quantity and quality of work to be done. There was also no proper feasibility study involving financial and economic analysis before the commencement of the award process. Thirdly NN64billion was not available in the 2009 budget  yet contract was awarded and finally, government employed under its payroll, unqualified procurement professional as Director General  of BPP, likewise other officers at the Bureau  through a process not permitted by law to authorize the release of funds from the government treasury.

Below is a reaction by a professional in the field of engineering whose technical review of cost of this project can further be used to provide answers regarding the cost of this project as it affects value for money. 
Mr E.O Adeniyi works  working with an Abu Dhabi Construction Company (BIN HAFEEZ GEN. CONT. GROUP) as Contracts Advisor/Office Engineer  stated online on April 4, 2010 at 7:00 am that “Even the NEWLY CONSTRUCTED EMIRATES AIRPORT RUNWAYS (TERMINAL 1-3) ARE NOT AS EXPENSIVE AS THIS ONE, GO AND CHECK THE DATAS. What is the pedigree of this Dr Adeniyi? Is he a Project Manager or Contract Advisor or QS or Civil Engineer or what is his profession?. You are telling Nigerians that a 4.4km airport runway is not expensive at N14, 545,454 per linear metre. What is the depth of the pavement? What is the overall width of your runway? This is N1,454,454,000 Billion/Km. There ARE gross inexperience and non – technical know-how on the part of the so called BPP. Who is Julius Berger – they are only known in Nigeria. All this so called moribund construction companies are not international.
Is it Julius Berger or PW or Gito or Costain WA. They all in Nigeria to continue in corruption and bad work that cannot pass the terotechnology life span of their production. Where was the specifications of this so called runway developed? $96,970/metre. IT IS TOO COSTLY DR. ADENIYI. How do you scaled it down, Where is the VALUE ENGINEERING THAT WAS CARRIED OUT? IT IS A BIG SHAME ON OUR COUNTRY THAT WE CANNOT DO ANYTHING MEANINGFUL FOR THE GENERATION TO COME. THAT IS WHY THE INFORMATION BILL REFUSES TO BE PASS BY THE SENATE & HOUSE OF REPS. THE PRESIDENCY HAVE ILL – EQUIPPED PROFESSIONAL WHO CARRY CERTIFICATES ABOUT IN NAME OF PHD BUT KNOW NEXT TO NOTHING. Good Day”
11.  Lack of appropriate application of Procurement Economy
The procurement process of selective bidding approved by the BPP  at the request of FAAN and used to solicit for bidders in this contract did  not result   in  obtaining the best quality of contractors and services for the price of N64billion or the lowest price for the acceptable, stipulated quality of goods and services. The Government did not get the best combination to meet the particular needs of the Ministry and the specifications as well as the effectiveness of the use of 4 billion, actually made available to the procuring entity in their 2009 budget as approved by the National Assembly.

12.     Disregard to   the procurement policies/laws process, procedures laid down for contract award.
The deliberate issuance of ‘No Objection certificate’ by the BPP   against the 2007 PPA, procedures etc is an anti-government activity  especially  when the former Minister  of Aviation, Babatunde Omotoba has acknowledged that the Contract was highly inflated at N64billion and  were not covered under the budget of his Ministry and was queried by him.
13.    Questionable decisions and actions.
Decisions of the Director General of BPP and the MD of FAAN in particular in this contract are questionable. The decision of BPP in suggesting a particular contractor for inclusion in the list of bidders and the dropping of some contractors directly from their office is questionable. The decision of the MD of FAAN to go ahead with the project without appropriation of the National Assembly is also questionable. The action of the Director of ENGINNERING IN FAAN to issue contract documents for the magnitude of this contract without a site visit demonstrates incompetence and lack of due diligence to work.

14.    Divergences from procurement plans
There is evidence of clear divergence from the original procurement plan without approvals from the appropriate quarters.

15.    Lack of Capacity at the BPP in handling Procurement management, efficiency and regulation of Procuring entities.

This statement has been supported by the fact that the players themselves, that is the BPP officials has during the Hearing publicly accepted lack of capacity on their part while apologizing to the entire nation.

16.    Threat to national security and preservation of procurement professionalism and international best practices in public procurement.

The failure of the statutory surveillance, auditing and review system of BPP on public procurement, strategic planning, conduct and management of the N64billion contract proceedings can be directly linked to or viewed as a    threat to our National Security, otherwise referred to as Public Safety or Homeland Security in the American government. This thinking explains why all contract failures and petitions are seen as criminal offence and are being investigated by anti-graft and security agencies. The interest of the Federal Government of Nigeria in our national security  does  not only involve safeguarding  our political identity and framework but include the preservation of  professionalism  and international best practices in strategic public Institutes such as the Bureau of Public Procurement and the Chartered Institute of Purchasing Supply Management of Nigeria (CIPSMN) which are principally and respectively  involved in supporting the daily activities of the federal government in the determination of the direction and fostering of our economic well being, helping to  promote good governance especially in the economy, power, security, electoral process, infrastructure sectors, and to encourage the blistering of National and International Procurement Order (NIPO) and the fight against corruption, actively supporting  the operations of all  MDAs  and vital interest of Nigeria including but not limited to the police, military, State Security Service, fire service, emergency medical service, etc and consumer protection.

RECOMMENDATIONS
1.     A revocation of the purported contract of NN64billion with appropriate actions against the officers concerned in accordance with  Sections 7 (4) 16(4) ,16(15),16(17) 16(18), 35,36 and 58 of PPA and to re-advertise under and International Competitive Bidding (ICB) process, Section 24 of PPA based on budget approvals and actual money released
2.   To take all necessary and urgent steps by the concerned authority (i.e. the President) to inaugurate the National Council on Public Procurement (NCPP) with the   Hon Minster of Finance as Chairman in line with sections 5(1).148(1) of the 1999 constitution, Sections 1and 2 of Public Procurement Act 2007 and the Finance (Management and Control Act) 1958.

3. To take all necessary steps in the earliest possible time to get the Council to advertise for the position of the Council’s Secretary/Director General of the Bureau of Public Procurement in accordance with Sections 7(1) and  7(2c) of the Public Procurement Act 2007, as well as section 11(9) of the CIPSMN Act 2007.

4. To take all necessary steps in the earliest possible time to get the Council to review the present contract threshold in use for award of contracts   which is in conflict with procurement principles and does not cover contracts being awarded by the other arms of Government.

AN INDEPENDENT REPORT IN RESPECT OF THE NN64billion ABUJA RUNWAY CONTRACT SAGA

Prepared by NGO Network, a general interest magazine monitoring public procurement corruption in Nigeria

REVIEW OF ISSUES AND ACTIVITIES BY RESPECTIVE PARTIES INVOLVED IN THE CONTRACT PROCESS/PROCEEDINGS AGAINST BENCHMARK   IN THE LAW.

In support of the above recommendations, we hereby submit to you a detailed summary of the legal, professional and security implications of the 24 issues observed, considered and analyzed in respect of this contract investigation.

ISSUE NO 1 – Violation of the Fundamental Principles for Procurement in accordance with Sections 16 (1) (a), (b), (c), (d), (e), (f) and (g) 16 (15), (18), (24) and (28)

Problem and Person responsible
The Chief Accounting Officer of FAAN, that is the Managing Director, the Minister of Aviation, the Director General of BPP should be held accountable for the above violations, which requires that “procurement shall take place only based on procurement plans, supported by prior budgetary appropriation and that no procurement proceedings shall be formalized until the procuring entity has ensured that funds are available to meet the obligations and subject to threshold in the regulations made by the Bureau and approved by the Council”- Section 16 (`1)(b)

There are also violation on the use of Open Competitive Bidding (OCB) by using Selective Bidding Process (SBP) and the failure to conduct the procurement in a transparent, equitable and in conformity with accountability. Other violations include issues of procedures and lack of economy and efficiency in the procurement process. There is the gap of value for money and fitness for purpose – Sections 16 (1) (c) - (g)

The criterion for the award of the contract was changed midway against the law and public interest – Section 16 (15) and 16 (28)

ISSUE NO 2
Non Compliance with statutory Surveillance and Review of Procurement process/proceeding in accordance with Section 53 and 54

Problem and the person involved
The Director General of the Bureau as the Chief Security Officer of the Public Procurement process should be held accountable for directly participating in a flawed bidding process rather than keeping statutory Surveillance and receiving petitions from bidders for review and to address the problems – Section 53 and 54

ISSUE NO 3
The improper preparation of needs assessment and requirements of goods, works and services by the user department in FAAN for submission to the Procurement Department as required by sections 18(a) and 18(b)  of the Public Procurement Act 2007.

Problem and Persons to be held Accountable
The Managing Director of FAAN (Chief Accounting Officer) and any other person(s) in the user department of FAAN to whom responsibility is delegated for procurement planning is to be held responsible for  failing to properly carry out needs assessment and requirements of goods ,works and services  in accordance with  the Appropriation Act in contravention  and lack of regard to Sections  18, 16(22), 16(21), 20(1), and 20(2) of Public Procurement Act and extant financial regulations revised in 2006.

ISSUE NO 4
The evaluation of needs assessment as presented by the user departments in accordance with section 18(a) of the Public Procurement Act 2007

The Problem and Persons to be held Accountable
The sympathetic need for 2nd Abuja Runway  as observed by the Chairman of the Aviation Committee  of the House of Representatives  and  the Aviation Ministry is highly appreciated, looking at the reasons given for the project to come on board but the Procurement Planning Committee of FAAN headed by the Procurement officer, together with the MD of FAAN (Accounting Officer) and any other person to whom responsibility is delegated including the internal Design Consultants are to be held responsible for wrong evaluation and or assessment of the needs of Ministry of Aviation without regard to the Appropriation Act of 2009,    in contravention of procurement planning principles and lack of due regard  to sections 18, 16(22), 16(21), 20(1), and 20(2) of Public Procurement Act and extant financial regulations revised in 2006 .

Note:
The Chairman of the Aviation Committee  of the House of Representatives Mr. Bethel Amadi do not owe any apology to any of the persons or bodies invited to the Public Hearing to defend serious allegations of fraud, forgery and contract inflation, from N4 billion to NN64billion.

ISSUE NO 5
Proper identification of goods, works and services required and the description of the essential element of the proposed 2nd Abuja Runway Procurement Project by FAAN in accordance with section 18 (b)of the Public Procurement Act 2007.
The Problem and Persons to be held Accountable
Whether the proposed Runway will accommodate Airbus 380 or not and whether the project will come with perimeter fencing, category 3 airfields, crash road, satellite fire system, associated civil works and navigational aids or not, the Accounting Officer (MD of FAAN) and any other engineer in the User Department or person to whom responsibility is delegated for this description  should be held accountable for  the  description of  project needs  outside budget and without the approval of the National Assembly and the President  in contravention  and lack of regard to   Sections 18, 16(22), 16(21), 20(1), and 20(2) of Public Procurement Act and extant financial regulations revised in 2006

ISSUE NO 6
Initiating and planning Procurement actions and the determination of the required goods, works and services in accordance with sections 18(g) of the Public Procurement Act 2007 by the procurement Planning committee.

The Problem and Persons to be held Accountable
The Accounting Officer (MD OF FAAN) and the Procurement Planning Committee of FAAN and any other person to whom responsibility is delegated for any action taken is to be held accountable for wrong initiation and planning of Procurement actions and for determination of required goods, works or services without compliance with budgetary provisions, financial regulations and in contravention and lack of regard to Section 18, 16(22), 16(21), 20(1), and 20(2) of Public Procurement Act 2007.

We found it   outrageous to note that the Ministry of Aviation and the Bureau of Public Procurement conceived and approved this project in conspiracy to use the funds in the BASA account that is not yet appropriated by the National Assembly, the N4billion in the 2009 budget and another N13 billion proposed in the 2010 and 2011 budget for a project life circle of 2 years, without the approval of the President and the National Assembly.

ISSUE NO 7
Carrying out appropriate market/statistical survey/analysis of Procurement cost implications in accordance with Section 18(c) of the Public Procurement Act 2007

The Problem and Persons to be held Accountable
The Accounting Officer of FAAN (The MD), the Procurement Planning Committee of FAAN  and any other person to whom responsibility is delegated for carrying out appropriate market and statistical surveys is to be held responsible for failing to carry out appropriate  market/statistical survey/ analysis of the Procurement cost implications of the Abuja second runway   before award of contract  in contravention and lack of regard to  Sections 18, 16(22), 16(21), 20(1), and 20(2) of Public Procurement Act.

The claim by the Minster of Aviation, FAAN and BPP officials that market survey was carried out locally and internationally before arriving at the cost of the project and otrhe  requirements  is not acceptable because if that action took place, they would have at least noticed the cost of construction for other airports in Nigeria and their Runways ,

A member of the House, Mr. Dino Melaye, who sponsored the motion for the probe, presented comparative figures on new airports built in parts of the country to the Committee to buttress the position that the contract was inflated. He said for instance that a new runway built by the Akwa Ibom State Government “with better facilities cost N13.6bn.” Melaye told the Committee that the length of the Akwa Ibom runway was 4.2km same as that of the Abuja airport

The subsequent disclosure by the Director of Engineering of FAAN that they did not visit the site before costing shows that he is not qualified for the position that he is occupying.

ISSUE NO 8
The Integration of Procurement expenditure into the yearly budget in accordance with section 18(e) of the Public Procurement Act 2007

The Problem and Persons to be held Accountable
The Procurement Planning Committee, as well as the Managing Director  of FAAN and   any other person to whom responsibility is delegated for any action taken or omitted to be taken either in compliance or in contravention of  Sections 18, 16(22), 16(21), 20(1), and 20(2) of Public Procurement the Act  is to held Accountable  and responsible for failing to integrate the total additional N60billion that will be required for this project beyond the N4billion approved in 2009 budget   into the 2009 supplementary budget before commencement of procurement planning and awarding the contract.

At the Public Hearing on the airport runway project in the House of Representatives, the Committee Chairman, Bethel Amadi, said the session was to determine the alleged inflation of the contract from N4billion to N63.5 billion and to ascertain how the Ministry of Aviation, the BPP, and FAAN arrived at the figure and which immediately shows  that there is lack of Integration of Procurement expenditure into the yearly budget approved by the National Assembly, as required by  section 18(e) of the Public Procurement Act 2007.

ISSUE NO 9
Estimation of Procurement Budget based on approved threshold in accordance with 2009 Appropriation Act.

The Problem and Persons to be held Accountable

The Procurement Planning Committee and the Accounting Officer and any other person to whom responsibility is delegated for any action taken or omitted to be taken either in compliance or in contravention of Sections 18, 16(22), 16(21), 20(1), and 20(2) of Public Procurement Act, is to be held responsible for the estimation of project cost beyond the N4billion approved in the 2009 budget based on the initial estimate of N26billion which was prepared by the Engineering Department of FAAN without the approval of the National Assembly and President of the Federal Republic of Nigeria.
It is important to note that under cross-examination, Aisuebeogun (the Managing Director) of FAAN said while Julius Berger quoted N72 billion initially for the job, PW and others demanded less than N30 billion and the question was asked why FAAN and BPP overlooked the lowest bidder, a deviation from the BPP law.
Aisuebeogun (MD of FAAN) stated that the duration of the project was 24 months, noting that the project would be funded from N4billion appropriated by the National Assembly last year while another N13 billion would be sourced from this year's budget which had already been approved, while $68 million would come from the un appropriated Bilateral Air Services Agreement (BASA) fund and the balance from 2011 budget.
Note
The BASA fund was money generated for Nigeria through the liquidated Nigeria Airways from commercial agreements it had with the foreign airlines. The fund is in the custody of the Nigerian Civil Aviation Authority (NCAA).
The committee said it was illegal for the BPP to tamper with the BASA fund that was not appropriated in the budget and could not have been seen as part of the funding for the project.
ISSUE NO 10

Ensuring that the estimated amount is actually available in the Appropriation Act in accordance with financial regulations and Section16 of Public Procurement Act,

The Problem and Persons to be held Accountable
Procurement Planning Committee of FAAN and the Managing Director and any other person to whom responsibility is delegated for any action taken or omitted to be taken either in compliance or in contravention of Sections 18, 16(1), 16(22), 16(21), 20(1), and 20(2) of Public Procurement Act is to be held accountable for failing to ensure that the total sum of N64billion naira is actually available in the 2009 Appropriation Act and released to the Ministry before proceeding to award the above contract. It is a criminal offence to award a contract based on the anticipated amount that is not actually available more also when the amount has been appropriated by the National Assembly.
The disclosure that the project would be funded from N4billion appropriated by the National Assembly last year while another N13 billion would be sourced from this year's budget which had already been approved while $68 million would come from the Bilateral Air Services Agreement (BASA) fund and the balance from 2011 budget and the fact that the BPP was also aware that N64billion was not available for this project in the 2009 appropriation and yet issued a ‘‘No Objection certificate’ to the aviation Ministry suggests conspiracy, fraud and forgery.
ISSUE NO 11
Determination of Procurement Method based on the estimated value and situation (Open Competitive Bidding or otherwise and why?) in accordance with Section 18 (f), 16 and 24 of the Public Procurement Act.

The Problem and Persons to be held Accountable
The Chief Accounting Officer, the Procurement Planning Committee of FAAN  and any other person to whom responsibility is delegated is to held accountable for failing to use and or recommend international competitive bidding (ICB) which is the appropriate  Procurement Method  for the award of this contract based on the initial estimated value of 26 billion naira for this project before it was escalated to N64billion Naira and, in contravention  and lack of regard to  Sections 18, 16(22), 16(21), 20(1), 20(2), 24, 25, 39, 40, 41, 42, and 43 of Public Procurement Act 2007.

Explanatory Note

It interesting to note that even the wrongly quoted Section 40 of the Public Procurement Act (Restricted Tendering) applied by the BPP and FAAN was not properly applied as the Act states that:

(1)    Subject to the approval by the Bureau, a procuring entity may for reasons of economy and efficiency engage in procurement by means of restricted tendering i :

(a)    The goods, works or services are available only from a limited number of suppliers or contractors;

(b)    The time and cost required to examine and evaluate a large number of tenders is disproportionate to the value of the goods, works or services to be procured; or

(c)    The procedure is used as an exception rather than norm.

(2)    Where a procuring entity engages in restricted tendering on the basis that:
(a)    The goods works and services are available only from a limited number of suppliers or contractors, it shall invite tenders from all the suppliers and contractors who can provide the goods, works or services; and

(b)    The time and cost required to examine and evaluate a large number of tenders is disproportionate to the value of the goods, works or services, it shall select in a non-discriminatory manner of the number of suppliers or contractors to ensure effective competition.

(3)    For the purpose of subsection (2), of this Section, the procuring entity shall cause a notice of the selected tendering proceedings to be published in the procurement journal.

(4)    The provisions of this Act regarding the open competitive bidding procedure shall apply to the selective tendering proceedings, except to the extent that those provisions are varied by this Section.

ISSUE NO 12
Violation of Code of Conduct and Other Public Procurement Principles as contained in Section 57 and 58
 
Problems and Person Responsible
The contractor/consultant, the DG of the Bureau, Directors in the BPP, the Minister of Aviation, the MD of FAAN and the Director of Engineering Services should be held accountable for improper code of conduct, collusive agreement, procurement fraud, direct/indirect influence on contracting, bid rigging, use of fake documents in violation of Sections 58 (4) (a) – (g), 58 (4) (12), (9) and (10) and 57 (2)

ISSUE NO 13

Preparation of Technical Specifications for Contracts and the terms for required quality and quantity of goods and services - Section 18 (n) and 16 of PPA.
 
The Problem and Persons to be held Accountable
The Engineers in the User Department of FAAN (engineering Sector Specialists) and the Managing Director of FAAN (Accounting Officer), consultants  and any other person to whom responsibility is delegated for any action taken or omitted to be taken either in compliance or in Section 16,18, 16(22), 16(21), 20(1), and 20(2) of Public Procurement Act, are to be held accountable for using the same consultants for the preparation of technical specifications also as contractors to inflate project cost for themselves, contrary to the Public Procurement Act and for designing for airport runway outside approved budget.

This issue does not need to be over-flogged since the FAAN Managing Director admitted during the hearing that they selected consultants for the Runway project and that the BPP also approved the consultant illegally knowing very well that the procedure use in the selection was faulty. They are also to be held responsible for the specifications prepared by the consultants outside the approved budget by the National Assembly.
On why,  FAAN refused to engage its Engineers in the project but external consultants whose prices were inflated, the FAAN team disclosed that the total in-house costing for the project was N26 billion based on the  draft Bill of Quantity (BOQ) submitted to the contractor with a sample of the project for their engineers to work with.
FAAN Managing Director stated at the hearing that “We gave them a bill document that will guide the consultants and the contractor on the type of project we want”.
The panel was however stunned when FAAN Director of Engineering, Dunuma said the Agency was yet to visit the site of the project, which was supposed to be its priority. Amadi, the Committee Chairman asked if it was proper for an Agency that was supposed to oversee an important project of that nature, not to visit such project site before issuing bidding documents.
Further Amadi said it was unacceptable and that FAAN Directorate of Engineering had not shown desired competence to put any template on the table and did not develop it, accusing them of not laying the proposal for which the companies were asked to work on.  This in our view laid the foundation for the collusion in this project for the inflation of cost by contractors.
Members of the committee also questioned the competence of the contractors that were asked to bid, considering the fact that none of them had track record of building runways anywhere in the world.

ISSUE NO 13
Preparation of Technical Drawing to support the tender documents where necessary including but not limited to Engineering and Architectural designs and inclusions of all necessary conditions for contracts as required in the Public Procurement Act 2007.

The Problem and Persons to be held Accountable
The Engineers and the Quantity Surveyors in the User Department of FAAN and their consultants engaged by FAAN both as contractors and as consultants, the Accounting Officer (MD), and any other person to whom responsibility is delegated for any action taken or omitted to be taken either in compliance or in contravention of Sections 18, 16(22), 16(21), 20(1), and 20(2) of Public Procurement Act   are to be held accountable for the Preparation of technical drawing and internal cost estimate based on inflated drawings and designs for construction work outside the approved budget by the National Assembly

ISSUE NO 14 
To carry out approved Procurement Plan into operation and effect. (The Execution of Procurement Plan) in accordance with Sections 19 of Public Procurement Act

The Problem and Persons to be held Accountable
The Accounting Officer, and the members of the Tenders Board of FAAN  and any other person to whom responsibility is delegated for any action taken or omitted to be taken either in compliance or in contravention of Sections  19, 16(22), 16(21), 17, 20(1), and 20(2) of Public Procurement Act 2007 are to be held accountable  for their role  in carrying out/ The Execution of an unapproved Procurement Plan  that is not in compliance with the Appropriation Act and or putting into operation a procurement plan that they knew that it was false .

Representatives of the two organisations, FAAN and the BPP babbled incoherently before the House Committee on Aviation, a development which increased the suspicion of panellists that they knew that the cost of the contract was inflated as earlier alleged.

ISSUE NO 15 
Expression of interest as consultants for the project and Solicitation/invitation for pre-qualification  of contractors where it is determined by the Tenders Board to be necessary and a minimum standard has been established and in  accordance with the method of procurement selected and in accordance with Sections 44 and 23 of PPA.

The Problem and Persons to be held Accountable
The Accounting Officer of FAAN and any other person to whom responsibility is delegated for any action taken or omitted to be taken either in compliance or in contravention of Sections 16(22), 16(21), 17,19, 20(1), 20(2) , 23, 24, 35, 39, 49, 41, 42, and 43 of Public Procurement Act  and the Tenders Board/  Technical Committee  of FAAN are to be held accountable  for  non  Solicitation/invitation for pre-qualification  before receiving bids, since  it is  clear that this is necessary for  the Tenders Board to  determine  and be assured that contractors will comply with  a minimum standard  as internationally  established and in particular to suit the method of procurement and approved in the Act for such procurement the provisions of

The story of existing emergency painted by FAAN and the BPP as the reason for not calling for pre-qualification of contractors as required in the Act and choosing Selective Tendering demonstrates incompetence and lack of understanding of Sections 40, 42 and 43 of PPA (see below)

SECTION 42 WHICH IS DIRECT PROCUREMENT STATES THAT:

(1)    A procuring entity may carry out any emergency procurement where:

(a)    goods, works or services are only available from a particular supplier or contractor, or if a particular supplier or contractor has exclusive rights in respect of the goods, works or services, and no reasonable alternative or substitute exists; or
 
(b)    there is an urgent need for the goods, works or services and engaging in tender proceedings or any other method of procurement is impractical due to unforeseeable circumstances giving rise to the urgency which is not the result of dilatory conduct on the part of the procuring entity;

(c)    Owing to a catastrophic event, there is an urgent need for the goods, works or services, making it impractical to use other methods of procurement because of the time involved in using those methods

(d)    a procuring entity which has procured goods, equipment,, technology or services from a supplier or contractor, determines that:

(i)    Additional supplies need to be procured from that supplier or contractor because of standardization,
(ii)    there is a need for compatibility with existing goods, equipment, technology or services, taking into account the effectiveness of the original procurement in meeting the needs of the procurement entity,
(iii)     the limited size of the proposed procurement in relation to the original procurement provides justification,
(iv)    the reasonableness of the price and the unsuitability of alternatives to the goods or services in questions merits the decision.

(e)     The procuring entity seeks to enter into a contract with the supplier or contractor for research, experiment, study or development, except where the contract includes the production of goods in quantities to establish commercial viability or recover research and development costs; or
(f) The procuring entity applies this Act for procurement that concerns Federal security, and determines that single-source procurement is the most appropriate methods of procurement.
(2)    The procuring entity:

(a)    may procure the goods, works or services by inviting a proposal or price quotation from a single supplier or contractor
(b)     Shall include in the record of procurement proceedings a statement of the grounds for it decision and the circumstances in justification of single source procurement.

SECTION 43 UNDER EMERGENCY PROCUREMENT STATES THAT:

(1)    A procuring entity may for the purpose of this Act, carry out an emergency Procurement where:

(a)    The country is either seriously threatened by or actually confronted with a disaster, catastrophe, war, insurrection or Act of God;
(b)    the condition or quality of goods, equipment, building or publicly owned capital goods may seriously deteriorate unless action is urgently and necessarily taken to main them in their actual value or usefulness; or
(c)    a public project may be seriously delayed for want of an item of a minor value.   

(2)    In an emergency situation, a procuring entity may engage in direct contracting of goods, works and services.

(3)    All procurements made under emergencies shall be handled with expedition but along principles of accountability, due consideration being given to the gravity of each emergency.

(4)    Immediately after the cessation of the situation warranting any emergency procurement, the procuring entity shall file a detailed report thereof with the Bureau which shall verify same and if appropriate issue a Certificate of ‘No Objection’.

The FAAN Managing Director and the former Minister of Aviation (Adetokumbo Omotoba) admitted that there was no pre-qualification by the Ministry for the contractors/consultants to get the best for the project in terms of experience but instead, that the Ministry submitted the names of six contractors/consultants to the BPP for approval and the BPP after the review of the list of contractors and consultant wrote a letter to Ministry of Aviation contrary to the provisions of the Public Procurement Act which does not permit the BPP to directly involve in the day-to-day activities and decisions of procuring entities, and shortlisted the companies by delisting two from the six submitted by FAAN. He thereafter informed the Ministry that only 4 companies are mobilized to work in Abuja. The BPP also went outside their terms of reference as a demonstration of their interest and conspiracy, added Arab Contractors and Dantata & Sawoe as contractors to be considered by the Procuring entity.

ISSUE NO 16 
Solicitation/Invitation for Bids in adherence to guidelines from the BPP and the Act where it is determined that pre-qualification is not necessary or after pre-qualification, with the method of procurement selected according with Section 19 of PPA.

The Problem and Persons to be held Accountable

The Accounting Officer / Tenders Board  of FAAN and other person(s) to whom responsibility is delegated for any action taken or omitted to be taken either in compliance or in contravention of Section 16(22), 16(21), 17, 20(1), 20(2), 24, 25, 39, 40, 41, 42 and 43 of Public Procurement Act are to be held accountable  for  improper  Solicitation/Invitation for Bids , by choosing wrong procurement method   in Section 40  without due regard to the provisions of  section 24 of PPA.

It is regrettable that the manipulated quotation of N83billion Naira from Julius Berger and later to N71billion and finally to N64billion obtained as the cost of this project and approved by the BPP and the Executive Council is partly as a result of wrong solicitation of bidders by the Aviation Ministry in conspiracy with the BPP.

Engr. Nebolisa Emodi of BPP quoted Section 40 (1) of Public Procurement Act, which he said empowered his Agency to approve a contract through selective bidding procedure, a claim dismissed by the Aviation Committee members who insisted that the aspect of the law he quoted, indeed, made it mandatory for a contract process to be made open, and offered based on experience and competence of contractors who made bids.

The FAAN Director-General, Richard Aisuebeogun, also failed to explain why the Agency did not allow competitive bidding for the contract, as well as comply substantially with the provision of the law in the process of award. The World Bank Consultant from BPP, Dr Adeniyi claimed that the bidding process was in order and cost justifiable.

Note:

Restricted Tendering in Section 40 OF PPA States That:
(1)    Subject to the approval by the Bureau, a procuring entity may for
Reasons of economy and efficiency engage in procurement by means of restricted tendering if :
(a)    The goods, works or services are available only from
(b)    a limited number of suppliers or contractors;
(c)    The time and cost required to  examine and evaluate a large
(d)    number of tenders is disproportionate to the value of
(e)    the goods, works or services to be procured; or
(f)    The procedure is used as an exception rather than norm.
(2)    Where a procuring entity engages in restricted tendering on the basis that:
   
(a)    The time and cost required to examine and evaluate a large number
(b)    of tenders is disproportionate to the value of the goods, works or
(c)    services, it shall select in a non-discriminatory manner of the number of
(d)     suppliers or contractors to ensure effective competition;

 (3)    For the purpose of subsection (2), of this Section, the procuring
Entity shall cause a notice of the selected tendering proceedings to be published in the procurement journal.

4.   The provisions of this Act regarding the open competitive bidding
procedure shall apply to the selective tendering proceedings,
except to the extent that those provisions are varied by this Section,

ISSUE NO 17 

Bid opening in public immediately after the closing of the bidding/tendering/pre-qualification solicitation period and in the presence of one member each from Civil Society and private professional association respectively as observers in accordance with Section 19 (b) of PPA

The Problem and Persons to be held Accountable
The Accounting Officer, Tenders Board/ Tenders  and any other person to whom responsibility is delegated for any action taken or omitted to be taken either in compliance or in contravention of section 19 , 24,  16(22), 16(21), 17, 20(1), 20(2), 27, 28, and 30 of Public Procurement Act are to be held accountable for not indicating to date that Bid opening was made  in public immediately after the closing of the bidding/tendering/pre-qualification solicitation period and in the presence of one member each from Civil Society and private professional association respectively as observers in accordance with  the provisions of section 19 and 4 of PPA . Even the wrong selective tendering process chosen by the procuring entity and BPP follows competitive bidding [processes

The Managing Director of FAAN is yet to disclose the names of the independent observers that attended and witnessed the Bid Opening for the selected tendering process to enable the public obtained an independence report about what transpired and the testimonies. Below is revelations from the Public Hearing which indicate lack of transparency.
In his testimony, Adetokumbo Omotoba admitted that though he was not an Aviation Expert, he had queried the outrageous cost of the project when FAAN presented the estimates to him.
The former Minister further noted that he initially thought that PW Nigeria Limited having quoted N30bn for the same project against Julius Berger’s N64bn, that PW should have been given the contract.
He, however told the Committee that FAAN later convinced him that Julius Berger had a more comprehensive technical design for the job and had a scope far wider than the submissions of PW Nigeria Limited and which demonstrated that the Minister joined in presenting double standards for the same bidding process.
ISSUE NO 18 

Bid clarifications in accordance with section 16, 31(2) and 31(3) of Public Procurement Act 2007

The Problem and Persons to be held Accountable
The Managing Director of FAAN (The Accounting Officer) and any other person to whom responsibility is delegated for any action taken or omitted to be taken either in compliance or in contravention of the Act is to be held responsible for not providing bid clarification on major change of design after bid opening and for enlarging the scope of work thereafter without information to all the six bidders and for providing clarifications not permitted in  law selective and competitive tendering as required by 16, 31(2) and 31(3) of Public Procurement Act hereby reproduced. 

EXAMINATION OF BIDS
Section 31(2) and 32(3) of PPA states that
(2)  A procuring entity may request suppliers for clarification of its bid submission in order to assist in the examination, evaluation and comparison of bids.
(3) The following shall not be sought, offered or permitted!
(a)    Change in prices,
(b)    Changes of substance in a bid; and
(c)    Changes to make an unresponsive bid responsive

Section 16(15) of PPA states that: ‘    The criteria stipulated as the basis upon which suppliers or contractors would be evaluated shall not be changed in the course of any procurement proceedings’

ISSUE NO 19 
Evaluation and comparison of bids in accordance with section 32 and 33 of PPA

The Problem and Persons to be held Accountable
The Accounting Officer of FAAN, Tenders Board/Technical Committee and any other person to whom responsibility is delegated for any action taken or omitted to be taken either in compliance or in contravention of   Sections 32,  16(5), 16(22), 16(21), 17, 19, 20(1), 20(2) and  31of Public Procurement Act.
 are to be held accountable for issuing selective clarifications  to some  bidders  involving major questionable  deviations in cost   in contravention of  and without due regard to  sections 16,31 and 32 of PPA.

The claim by BPP at the Public Hearing by FAAN and BPP that several checks were made locally and internationally and comparison of various project carried out before arriving at the  project cost is not true  and a cover up

ISSUE NO 20
Resolving complaints and disputes (if any) in accordance with Section 19 of PPA before award of contract.

The Problem and Persons to be held Accountable

The Accounting Officer, Tenders Board  are to be held accountable for failure to submit the required documents to the National Assembly at the time it was sought for to resolve disputes before the award of contract. 

ISSUE NO 21 
Request for and obtaining  a ‘No Objection certificate’ to the Procurement proceeding from the Bureau of Public Procurement accordance with sections 5(c),6,16(2)  and 16(4) and other relevant sections of PPA.

The Problem and Persons to be held Accountable
The Director General of the Bureau of Public Procurement, the Accounting Officer of FAAN and the former Hon Minister are to be held responsible for the forged and fraudulent ‘‘No Objection certificate’ issued by BPP in fraudulent conspiracy with the officials of Ministry of Aviation for the award of this contract. They are also to be held accountable for misleading the Executive Council for the approval of the contract while the President was in Saudi Arabia   for medical treatment.

The attempt by Engineer Nebolisan Emodi of BPP during the Public Hearing to personally rope President Yar’adua as the person who facilitated the fraudulent and forged certification of No Objection is unacceptable since the President is not a technocrat and still has the constitutional responsibility to reject any contract awarded by any ministry even with ‘‘No Objection certificate’, if he feels that there is a violation of sections 16 and or other relevant sections of the 1999 constitution.

a.    Forged ‘‘‘No Objection Certificate’’

A ‘‘‘No Objection certificate’’ is said to have been forged/produced when a Procurement Auditor makes a false ‘Certificate’ knowing it to be false and with intent that it may be used or acted upon by the procuring entity as genuine to the prejudice of any bidder/person or with intent that any person may in belief that it is genuine, be induced to do or refrain from doing any act concerning a procurement proceedings and or processes, whether in Nigeria or elsewhere. This includes ‘‘‘‘No Objection certificate’’ that tells lie about a procurement process or proceeding and/or tells lie about itself and also include the ‘‘‘‘No Objection certificate’ prepared with the intent to defraud (See Babalola v State (1989) 4 NWLR (PT. 115) 264 Per Nnaemeka Agu that JSC at 277’ Pp.75-76) par 45-15)
 
c.    The elements of forged ‘‘‘No Objection certificate’’
This includes that:

i    There is ‘‘‘‘No Objection certificate’’’/Audit report  that has been issued.
ii.    The document/report/certificate   in writing has been forged
iii.    The forgery is by the accused person or Procurement Auditor
iv.    The procurement auditor (BPP) or accused person knows that the document/report/certificate   is false.
v.    The aim of the Procurement Auditor/accused person is that the forged certificate is to be acted upon to the prejudice of the victim in the belief that it is genuine.

d.    Fraudulently issued   ‘‘No Objection certificate’’ Procurement Audit Report/Opinion.

Fraudulently issued ‘No Objection certificate’/Audit Opinion/Report is the one prepared by a Procurement Auditor or accused person with an intention that the certificate shall be used or acted upon as genuine whether in Nigeria or elsewhere to the prejudice of some persons and whether a particular person or some persons, shall in the belief that the certificate in question is genuine, be induced to do or refrain from doing some acts whether in Nigeria or else where.

The Public Procurement Act describes Fraudulent Procurement Practice to mean Conducting or attempting to conduct procurement fraud by means of fraudulent corrupt acts, unlawful influence, undue interest, favour , agreement, bribery or corruption;

It was  laughable to note that  a  Director at the BPP, Mr Nebolisa Emodi, who failed  to state what department or the specialised field in procurement he is directing at the BPP and  who represented the Director-General of the Bureau, had, at a point, created a mild drama at the Public Hearing, when he dropped the name of ailing President Umaru Yar’Adua as the authority behind the actions by BPP and FAAN to award the contract to Julius Berger Construction Company, through “selective tendering” procedure and the fraudulent ‘‘No Objection Certificate’, issued by the BPP. It is also worthy of note that irked by the incompetence and the  mention of Yar’Adua’s name in Emodi’s defence, the Committee Chairman, Honourable Bethel Amadi, asked the BPP Director to substantiate his claim with a proof as he stressed that he and members of his Committee were sure that the President would never be part of such illegality.

While criticising the Director for linking Yar’Adua to the approval of the contract without due process, Amadi said that the statement the BPP representative made would be put on record, but advising that he should withdraw it, if Yar’Adua did not actually authorise the award of the contract to Julius Berger without due process. According to him, there was no section in the public procurement law which directed that the approval of the President could be sought by BPP to award a contract based on selective tendering procedure.

ISSUE NO 22 
Obtaining approval of the Accounting Officer of the Procuring Entity or the person charged with the overall responsibility for the function of a Ministry, extra-ministerial department or Corporation before making an award in accordance with section 19 of PPA.

The Problem and Persons to be held Accountable
The Accounting Officer(MD) of FAAN  is to he held accountable for giving approval to the Tenders Board of the Procuring Entity for  an award of this contract to the tune of N64billion without following due process and rule of law .
ISSUE NO 23
Negotiation and award of contracts without adherence to the Public Procurement Act 2007 - Section 19 and other extant guide lines

The Problem and Persons to be held Accountable

The Accounting Officer(MD of FAAN), FAAN Tenders Board and any other person to whom responsibility is delegated for any action taken or omitted to be taken either in compliance or in contravention of Sections 19, 35,,36 ,16(22), 16(21), 17, 19, 20(1), 20(2) and 33 of Public Procurement Act are to be held accountable for negotiation of this contract to the tune of N64billion without due regard to the sections mentioned above  .

ISSUE NO 24 
Submission   of the decisions of the Tenders Board on the award to the Honorable Minister for implementation in accordance with section 22(5)  and 19 of PPA

The Problem and Persons to be held Accountable
The Accounting Officer is to he held responsible under  sections Section  16(22), 16(21), 17, 19, 20(1), 20(2) and 33 of Public Procurement Act 2007 for Submission  of  the  wrong decisions of the Tenders Board on the award to the Honorable Minister for implementation knowing very well that the information and procedure used in the award is false and including that the ‘‘No Objection Certificate’ is forged and fraudulent and prepared in conspiracy with the officials of FAAN.

ISSUE NO 25 
Obtaining the Approval of the President/Federal Executive Council for the implementation of the decision/award of the Tenders Board by the Hon. Minister of Aviation as required by law.

The Problem and Persons to be held Accountable
The Accounting Officer/the Minister/ and the Director General of BPP are to he held accountable for misleading the Federal Executive Council/President   for the implementation of the decision/award of the Tenders Board

ISSUE NO 26
Execution of Contract Agreement after the approval by the Tenders Board. That is, the performance of all acts necessary to render the contract awarded complete as an instrument and import the idea that nothing remains to be done and make complete an effective contract 
 
The Problem and Persons to be held Accountable
The Accounting Officer/the Minister are to be held responsible for Execution of contract agreement after the approval of the Tenders Board and without the budget approval of the National Assembly i.e. the performance of all acts necessary to render the contract awarded complete as in instrument and import the idea that nothing remains to be done to make complete an effective contract   in contravention of Sections 16 and 18 of Public Procurement Act.

CONCLUSION

From the foregoing, there is clear evidence that the BPP as constituted today is illegal and lack competence giving rise to the fraudulent contracts awards and administrative maneuver being witnessed in the economy today. The Federal Government or Committee may not be able to effectively challenge the actions of the Bureau, as they are responsible for the improper constitution of the body.

Therefore every efforts should now be made by the National Assembly to urge the President to properly constitute and inaugurate the Council and the BPP in accordance with the Public Procurement Act 2007 and to appoint a qualified procurement professional as the Director General and officers of  for the Bureau of Public Procurement.

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