Ethics and Due Process Compliance in Public Procurement

Ethics and Due Process Compliance in Public Procurement Emeka M Ezeh, OFR & James O Akanmu, PhD, FNSE Bureau of Public Procurement

Highlight On the Marble Ethics and Ethical Requirements in Public Procurement The Due Process in Public Procurement Offences Sanctions Way Forward Tools for Compliance Conclusion

On the Marble NOTE THAT IT IS NOT • What we eat but what we digest that makes us strong; • What we read but what we remember that makes us learned; • What we profess but what we practice that gives us integrity.

Ethics What are ethics? 1: a discipline dealing with good and evil and with moral duty 2: moral principles or practices Business ethics include practices and behaviours that are good or bad OK, so what does “moral” mean? 1: of or relating to principles of right and wrong 2: conforming to a standard of right behavior

Right behaviour? So, who determines “right” behaviour? Society? The government? God? Basic human nature? Profession

Why talk about ethics and Integrity? • To Avoid: • Corporate failures • Questionable professional practices • To prevent: • Moral decadence • Corrupt practices • Fraudulent practices DrJOAkanmu/ethics/nse/2011

Why Leaders behave ethically 1. To avoid some punishment Most of Us 2. To avoid some punishment 3. To be Responsive to family, friends or Superiors Many of Us 4. To be a good Citizen Very Few of Us 5. To do what is right, pursue ideal, such as justice

Ethics and the Law • Law often represents an ethical minimum • Ethics often represents a standard that exceeds the legal minimum Frequent Overlap Ethics Law

To be ethical, You must You must Practice Competently Promote Sustainability • Demonstrate Integrity • Exercise Leadership

DUE PROCESS in Procurement is • the legal requirement that the Procuring Entity must respect all of the legal rights that are owed to the Staff, • Suppliers, contractors and service providers, and • the government. • a generic expression used to describe the combination of all the Laws, rules, regulations, standards and procedures which must be followed in the effective public procurement

DUE PROCESS is NOT • wilful violation of the Law, laid down rules and regulations; it is not about circumventing the Law, rules and procedures; • driving on the wrong side of the road or driving against traffic or jumping traffic lights; • interfering with the bidding process • exerting undue influence on the public procurement process to manipulate and steer the award of contract to a preferred contractor and pre-determined winner of a tender.

4 1 3 2 Collection & Submission and Opening of Bid DUE PROCESS IN PUBLIC PROCUREMENT Need Assessment and Procurement Planning Advertisement Prepare Bid document 5 Evaluation 6 7 8 9 Contract award Contract Preparation Signing of contract Performance Of contract

Advertisement • Advertisement shall be in line with Section 25 and provisions of the regulations that guides the type of procurement

Bid Opening, Examination and Evaluation • Section 30 • prescribes the due process required in Bid opening • Section 31 • prescribes the due process required in Bid Examination • Section 32 • specifies the due process required in Bid Evaluation • Section 32 sub section 2 • The Objective of bid evaluation is to determine the Lowest Evaluated Responsive Bid

Award and Approving Authorities • To award a contract, the approving authorities include the following: • Accounting Officer • Tenders Board • BPP for Certificate of No Objection To award a contract, the approving authority is determined based on service wide approved threshold as given in the Circular

Due Process in Complain Procedure: Section 54 • All complaints must firsts be addressed to the Accounting Officer. • Accounting officer to decide complaint in writing addressed to complainant within 15 working days, • Provides right of appeal to Bureau if there is ( failure to decide or if unsatisfied by decision). • Bureau has to decide in writing within 21 working days. • Provides access to Federal High court within 30 days of BPP decision if not satisfied with BPP decision

Way Forward We must agree to have these core values in all our activities: • Integrity, Accountability and Transparency; • Respect; Meritocracy; • Creativity; Team Work; Open Mindedness; • Social Responsibility

Way Forward Code of Conduct for Officials, suppliers, contractor or service Provider, Tenders Board Member • Section 57 • Honesty • Accountability • Transparency • Fairness • Equity Can we agree that we shall follow the provision of Section 57 sub section 1 to 13?

WAY FORWARD • Selflessness: Officials should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.Integrity: public official should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties.Accountability: Public officials are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office DrJOAkanmu/ethics/nse/2011

Way forward… • Openness: Officials should be as open as possible about all the decisions and actions that they take. • Honesty: Engineers and public officials have a duty to declare any private interest relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest. • Leadership: Officials should promote and support these principles with leadership by example. • Recognize the right of your contractors/consultants to make money too! DrJOAkanmu/ethics/nse/2011

In this world everything changes except good deeds and bad deeds; these follow you as the shadow follows the body.

INTEGRITY • Guidelines, rules, and policies do not make us honest. They only mark the pathway we should follow. Each one of us must make our own decisions, based on our own values and courage. Only when we make ethical behaviour a reflex action as natural as breathing will we truly possess INTEGRITY.

Can we proudly say Integrity works here? • Integrity is not easy. • It doesn’t allow us to take shortcuts. • It may mean accepting a short-term sacrifice to create a long-term benefit. • Integrity can sometimes even make us temporarily unpopular.

Integrity… • When we encourage and support each other in making the right decisions, integrity is no longer difficult. • It becomes the norm that we all follow and the bond that holds us together. • It is up to each of us to create a place where we can proudly say, "INTEGRITY WORKS HERE.”

Offences and Sanctions- Section 58 • Some of the Offences • Bid Rigging – Pre-arrangement of offers where winners have been predetermined • Collusion • Splitting of contracts • Procurement Fraud using undue influence, favour, bribery, • Altering procurement document • Willful refusal to allow Bureau and its officers access to any procurement records • Using fake documents like TCC, etc.

Sanction or PENALTY FOR VIOLATORSSection 58 • For a natural person not being a public official • Section 58 subsection 1 • Jail term of not less than 5 Calendar years and not exceeding 10 calendar years without option of fine • For officers of the Bureau, UNN, FME etc • Section 58 subsection 5 • Jail term of not less than 5 Calendar years without option of fine. • Summary Dismissal from Government Service, • Contractors, Suppliers or Service Providers • Section 58 sub section 6 • Debarment • A fine equivalent to 25% of the value of the procurement in issue • Every Director of the Company is liable on conviction to Jail term of not less than 3 Calendar years but not more than 5 years without option of fine.

Think About this. Any Violation? • James is part of a team evaluating proposals for a competitive procurement for a Procuring Entity. • At dinner, after a week of evaluating proposals, James shares his opinions and observations with his wife, a professional colleague, about the differences between the proposals. Violation?

Think About this. Any Violation? • Major Ishaqis the Army representative to a team evaluating proposals for a competitive procurement for Ministry of Defence. • Major Ishaq’scommanding officer asks for a brief on how the evaluations are going. Major Ishaqprovides him with an overview of the strengths and weaknesses of each bidder.

Ethics Summary • Ethical behavior is your responsibility if you are involved with Public Procurement • Rules are often complicated with many exceptions • If you are not sure, seek guidance • Public Service Rules • Section 57, PPA, 2007 • ICPC ACT • EFCC ACT • NIGERIAN CONSTITUTION • Document your efforts to obtain clarification/ approval

Compliance will become easier if you will: • Promote Excellence in place of Mediocrity • Put Nation and the profession before self • Be an asset not a liability • Provide solutions to problems • Keep promises • Not defraud the Govt and Contractors or service providers • Follow Due Process in Public Procurement

Thank You Thank You

Ethics and Due Process Compliance in Public Procurement