Sierra Leone Busgate scandal – government is in clear breach of procurement Laws

Abdul Rashid Thomas – Editor, Sierra Leone Telegraph

23 July 2015

Sierra Leone government’s procurement of 100 buses from China at a cost of $120,000 each, may have been intended to alleviate transportation problems across the country, especially in the congested and overcrowded capital Freetown.

But today, this decision has attracted fierce criticisms for all the wrong reasons – not least corruption.

Even the country’s Anti-Corruption Commissioner, has taken the unprecedented step of publishing his prima facie observation, pending the completion of investigations into the procurement process, which he now says, is seriously flawed.

Government ministers, officials and media backers, argue that the government is devoid of any blame as they had acted properly and in accordance with the country’s procurement laws.

Pro-government newspaper – Awareness Times says: “The recent purchase of 100 buses to help solve the transportation crisis in the country, was done as an Emergency purchase under a No Objection for Sole Sourcing. This currently, is actually perfectly legal under the current procurement laws.”

But is it really legal?

The Public Procurement Act of 2004, which is currently under judicial review by parliament, provides the framework through which government ministers and officials ought to have legally conducted the procurement of the 100 buses.

Did ministers and officials break the Law? (Photo: Finance Minister Marah)

The point of Procurement Law as to whether ministers acted legally in this Busgate scandal, is related to the following key questions:

Does the 2004 Public Procurement Act make provision for the procurement regulations enshrined therein, to be set aside by virtue of the fact that the $12 million used for purchasing the buses was a loan from the Chinese government?

Does the 2004 Public Procurement Act make provision for sole sourcing on the grounds that the cost of the buses is to be financed by a loan from a foreign commercial financier?

Is the issuing of ‘No Objection Letters’ by any organ of the State to a procuring entity, so as to render any section or sections of the 2004 Public Procurement Act null and voidable, provided for in the Act?

Does the 2004 Public Procurement Act make provision for a procuring entity to use ‘Emergency or Urgency’ condition as a valid reason not to go out to competitive tendering?

So what does the Public Procurement Act of 2004 say in relation to each of these questions?

With respect to the question as to whether it was right for ministers not to go out to competitive tendering because the loan was provided by a Chinese financier, the procurement regulation is absolute clear.

Part 1, Section 2 of the Act, says that:  “Where this Act conflicts with the procurement rules of a donor or funding agency, the application of which is mandatory pursuant to or under an obligation entered into by the Government, the requirements of those rules shall prevail; but in all other respects, the procurement shall be governed by this Act.”

But what we do know is that the $12 million used for the purchase of the 100 buses did not come from a donor or a public funding agency as provided for by the Act as above.

So it is disingenuous of Sierra Leone government ministers and officials to say that they could not have complied with the provisions of the Act, which requires a process of competitive tendering, because the Chinese financiers insisted that their preferred manufacturer should supply the buses in return for the loan.

Part 1, Section 2 of the Act only applies to the use of donor funds, not loan contracts signed by the government of Sierra Leone under a commercial agreement for the supply of goods.

What does the Act say about exemptions from competitive tendering?  

Part 5, section 37, subsection (1) states that; “Public procurement shall be undertaken by means of advertised open bid proceedings, to which equal access shall be provided to all eligible and qualified bidders without discrimination, subject only to the exceptions provided in sections 38, 39, 40 and 41.”

But none of those exemptions mentioned above – 38, 39, 40 and 41 applies to the procurement of the 100 Chinese buses, and the government itself is not relying on any of these exemptions as a reason for having decided to restrict competitive tendering in this circumstance.

However, Section 46, subsection (1) of the Act does make provision for circumstances where government officials may choose sole sourcing instead of competitive tendering.

Section 46 of the Act says that: “Public procurement by means of the sole-source procurement method is permitted only in the following circumstances:–

“(a) when only one supplier has the exclusive right to realise manufacture of the goods, carry out the works, or perform the services to be procured and no suitable alternative is available;

“(b) for additional deliveries of goods by the original supplier which are intended either as parts replacement for existing goods, services or installations, or as the extension of existing goods, services or installations where a change of supplier would compel the procuring entity to procure equipment or services not meeting requirements of interchangeability with already existing equipment or services;

“(c) when additional works, which were not included in the initial contract have, through unforeseeable circumstances, become necessary and the separation of the additional works or services from the initial contract would be difficult for technical or economic reasons;

“(d) in cases of extreme urgency, provided the circumstances which gave rise to the urgency were neither foreseeable by the procuring entity nor the result of dilatory conduct on its part;

“(e) when the services require that a particular consultant be selected due to his unique qualifications, or when it is indispensable to continue with the same consultant.

With the exception of clause (d) above which makes provision for single sourcing under ‘urgent’ conditions, as the government and its legal advisers have been arguing as one of their reasons for sole sourcing, none of the other exemptions above applies to the Busgate fiasco.

But, taken to its logical conclusion, it is obvious that after close examination of clause (d), the government cannot safely rely on clause (d) to satisfy the provisions of the Act.

Clause (d) can only be relied upon by the government as an argument, if as the clause clearly states:   “In cases of extreme urgency, provided the circumstances which gave rise to the urgency were neither foreseeable by the procuring entity nor the result of dilatory conduct on its part.”

The question for the government and their legal advisers is whether they can seriously and confidently say that the transportation need in the country was, and has not been foreseeable, after successive governments have failed the people of Sierra Leone since the 1980s, in meeting their transportation needs.

And can the government also say that their failure to adequately meet the transportation requirements of the people of Sierra Leone, has as stated by the Act “not the result of dilatory conduct on its part”?

The Sierra Leone Telegraph rests its case on this issue, and can move on to the next point of Law, as clause (d) above speaks for itself.

And, on the thorny question as to whether the 2004 Act makes provision for any organ of State to issue a “Letter of No Objection”, so as to absolve government ministers from any of the obligations of the Act, it is quite clear the Act does not make such provision.

What must be said however is that, such perverse behaviour by those in power is nothing other than a figment of imagination of state dictators, who simply believe that they are above the Law, and feel they have the power to issue orders from above, without due process.

Finally, should the government have published information regarding their decision to opt for sole sourcing from a preferred Chinese supplier?

Section 47, subsection (2) of the Act says that; “Publication in the Gazette, a newspaper of national circulation and, when feasible, on the internet, of a notice of the holding of sole-source procurement proceedings is required when the estimated value of the procurement exceeds the threshold set in the First Schedule” as follows:

Contract awards shall be published when the estimated value of the contract is above:

(a) In the case of contracts for the procurement of goods, Le 300.00 million

(b) In the case of contracts for the procurement of works, Le 600.00 million.

(c) In the case of contracts for the procurement of services, Le 300.00 million.

The government did not publish any such statement as required by Law.

In their own defence and in defence of the government ministers responsible for procuring the Chinese buses, this is what they are claiming to be their justification:

“The recent purchase of 100 buses to help solve the transportation crisis in the country, were done as an Emergency purchase under a No Objection for Sole Sourcing. This currently, is actually perfectly legal under the current procurement laws.” – Awareness Times.

An official in the Ministry of Finance and Economic Development (MoFED) told Cocorioko: “The buses were purchased with funds from China whose lending practice ensures that its selected state – owned companies get the contracts arising from their financing. You cannot use Chinese money to give contracts to European/western companies for instance.’’

‘’Under this circumstance, we followed every step set out in the National Public Procurement framework’’ said the Minister of Transport and Aviation – Mr. Leonard Balogun Koroma.

The Procurement Officer in the Ministry of Transport and Aviation (MTA), Unisa Dumbuya told Cocorioko: “The contract was drafted and sent to the Law Officers, who vetted it and made recommendations. One of which was that, given the conditions of the financing that the Chinese State Own Company – Poly Group – should be the contractor, the approval of the National Public Procurement Authority (NPPA) should be sought for sole sourcing.”

But as we have seen from the relevant sections of the Sierra Leone Public Procurement Act of 2004, which is currently under review, ministers and officials responsible for procuring the 100 Chinese buses, had clearly acted unlawfully.

And as the Anti-Corruption Commissioner – Joseph Kamara himself said in his public statement last Monday: “The use of ‘no objection letters’ to waive procurement rules and regulations, under the guise of emergency is reproachable.”

Will the Anti-Corruption take the right course of action and charge all those responsible for violating the procurement regulations to the High Court?   

Parliament must not be allowed once again to set itself up as a kangaroo court in a banana republic. The ACC must be left alone to do its work without any political interference.