Revisiting the Public Procurement Act 2006
The Public Procurement Act 2006 (hereinafter referred to as the 'Act') along with the Public Procurement Rules 2008 (hereinafter referred to as the 'Regulations') guide us along the lines for the procedures that need to be followed during the procurement process which guarantees transparency and accountability in the procurement process of goods, works or services involving public funds. Albeit, the Act also provides that if there are specific rules and clauses enshrined in each agreement, then the agreement shall prevail over the Act.
The procurement entity having the administrative and financial powers to undertake the procurement process initiates by giving tender or proposal and then the bidder submits the application forms with the required documents within the deadline to participate in the procurement process.
After going through the procurement process, the bidder who is successful is granted a notification of award, which after acceptance, the contract is executed accordingly. There can be both Domestic and International procurements and while participating the bidder may also form a Joint Venture in order to procure.
All the government officers or private individuals involved directly or indirectly in any agreed procurement, such as the suppliers/tenderers, are also to abide by the Code of Ethics set by the government. Set as the basis for best practices of ethical behaviour for people engaged in public procurement, the Code of Ethics aims at enhancing efficiency, competition, transparency and accountability in public procurement.
The Act grants right, to any aggrieved applicant/tenderer, who can lodge a formal complaint against any irregularity for instance like corrupt practices, insufficient time for the tenderer to respond, inadequate documents and so forth done by the procuring entity during or through the various processes of public procurement.
According to rule 57 of the Regulation, an aggrieved participant in the procurement process may challenge the action by the procurement authority by way of an appeal to the administrative authority on the ground that the entity failed to discharge obligations under the Act. Having remained dissatisfied, the complainant may then bring the complaint to the 'Review Panel', comprising of an expert body with legal and technical experts in relation to public procurement.
The Central Procuring Technical Unit (hereinafter referred to as 'CPTU') under the Evaluation Division of the Ministry of Planning carry out procurement monitoring, coordination and management. The CPTU hears appeals through the Review Panel. And the Review Panel issues were written decision within a maximum of 12 working days. The decision given by CPTU is on the majority decision and the Review Panel's decision is final and all concerned parties need to act upon such decision. Since the Review Panel's decision is final.
Furthermore, the Regulation allows the procuring authority or the contractor/the contract-awardee to terminate the contract for certain specified reasons. Most notably, the Regulation also offers that any disputes or claims arising out of the implementation of the (procurement) contract shall be resolved chronologically through amicable solutions, adjudications, and arbitration in accordance with provisions laid down in the contract
Pursuant to Section 65 of the Act, the government has initiated the e-GP guidelines. The use of e-GP in public procurement reduces costs and time. Moreover, the system is relatively safe and secure. In Bangladesh, it has been an effective tool to ensure transparency and accountability in the process of public procurement, as the Act and Rules have to be followed by default in e-GP.
The CPTU has launched online monitoring of the procurement performance through the Procurement Management Information System (PROMIS). Therefore, any violation in the process will automatically be detected from the data provided by the PEs to the PROMIS. In the e-GP, the bidders need not be physically present to submit their tenders to the PEs. The applicants can submit tenders online from home. Thereby, the opportunity for competition has been widened.
Sometimes regulations provide the public officials and procuring entities too wide an ambit of discretion to apply in choosing the method or modes of procurements. For example, the rules regarding conditions for national and international procurements and direct and tendering methods are so lightly worded that the authorities may prefer one method to another. Thus in relation to accountability, these controls need reconsideration.
However, it is often seen that an important measure for good governance depicts a system of efficient and accountable public procurement. Bangladeshi procurement laws do have certain limitations which should be overcome in order to achieve wider accountability of the government in procurements.
At present, the challenge that Bangladesh should consider is to make its public procurement regime more transparent and operational through simplifying the procedures, subsequently, by encouraging the officials concerned to avoid bureaucratic dilatory practices but not at the cost of transparency. Therefore, in order to exercise effective control over public resource- allocative decisions and to safeguard administrative accountability, the judiciary has the ultimate role to review public contracts or any decision involving public procurements.
Barrister Sabrina Zarin is a partner at the FM Associates and an advocate at the Supreme Court of Bangladesh