In 2004, a new legislation was enacted to be followed by the Public Procurement Act, 2011 (PPA, 2011) which came into effect in December, 2013.
These rapid changes of the law not only negates the legal philosophy that “rules oflaw should not be subjected to frequent changes” but also indicates that enactment of the particular laws does not take into consideration the basics of procurement but are just motivated by political interests and other theoretical issues rather than practical ones”.
Before and duringthe 2015 general election campaigns, there was an outcry by politicians, specifically the ruling party (CCM) Secretary General, Abdullahman Kinana who was quoted on several occasions vowing to repeal the law as soon after his party wins the elections.
Subsequently, the new president Dr John Magufuli in his inaugural speech to the National Assembly on 20 November, 2015 appealed for an immediate repeal of the PPA, 2011 and urged Members of Parliarment to approve the bill when it will be tabled before them for deliberation and approval.
Through the short history narrated above one may ask some simple questions: From 2001 to 2015 which party was in power? Which party had the majority of members in Parliament? Who was preparing and tabling the bills for approval before the Parliament? The answers to the above questions are obvious to any reasonable person!
Now, one may wonder why then, the same people/party is very bitter against the law as if it was imposed by its opponents or passed in its absence! Bad enough, the law has operated for only two (2) years, a year shorter than the 2001 version.
The above scenario takes us back to the second para of this article where it is argued that enactment of procurement laws in the country is either politically motivated or do not take into consideration the basics/principles of procurement or both and that is why we are witnessing drama of the proposer becoming the opposer on the same motion!
The current situation sorrounding the procurement law is the essence of this article where the politicians are reminded to consider procurement principles before tabling the bill in parliament.
While I do commend the president’s move to amend/repeal the law, I also recommend that whoever critises the current law should highlight the gray areas in the current law and propose the amendments instead of generalising the matter as if there is nothing good in the current legislation.
That will help the government to prepare a bill which will cater for desired results.Intensive consultation with key procurement stakeholders, especially practising professionals, is vital to having a comprehensive and effective procurement law in the country.
To me the following are some of the areas which need immediate amendments in the current procurement law:
1) Separation of operational from regulatory functions. Currently some bodies are performing more than one functions e.g. GPSA & PPRA
2) Maintain only one regulatory body (PPRA)
3) PPRA and PPAA be only allowed to procure using Micro Value Procuremnt Method
4) GPSA should not procure for other PEs but only manage Framework Agreements for Common Use Items and Services (CUIS)
5) Third party procurement services be used to procure for PPRA and PPAA instead of using GPSAfor values above Micro Value Procurement Method
6) Abolish procurement of used railway machinery, ship and aircraft
7) The law should expressly state what “national interest” is
8) GPSA should stop approving other PEs emergency procurement
9) PPRA should approve other PEs emergency procurement
10) Emergency procurement should be approved retrospectively by PPRA in order to serve the purpose
11) PEs should immediately report emergency events to PPRA when they occur
12) Procurement contracts vetting be done in zones/regions in order to serve time
13) Amounts for contracts to be vetted by PEs internal lawyers be increased to atleast Tanzanian Shillings 100 million
14) Fuel and other oil products be eliminated from GPSA’s common use items list because they are regulated by EWURA
15) PEs should be allowed to procure directly fuel and other oil products from any EWURA licensed supplier
16) The law should expressly state that for the goods and services offered by the state owned entities and parastatals e.g. NIC for insurance services, NHC for housing services, ATCL for air tickets, Postal corporation for post & courierservices,TRL for railway services etc., be procured directly from those entities without engaging in tendering process
17) The law should expressly prohibit appointment of PEs’ lawyers in their Tender Boards
18) The law should expressly separate procurement and supplies functions
19) The law should prohibit PMU staff members to deal with supplies and stores functions in their PEs
20) The Government should either enact another law to deal with Supplies and Storekeeping functions or amend the Public Finance Act to accomodate these functions in detail and establish the reporting relationship of the supplies and stores cadre in PEs
21) The structure of PMUs in PEs should be legally stated
22) The titles assigned to Head PMUs should be uniform and legally stated to avoid the ambiguity currently existing among PEs
23) Since many “Common Use Items” are imported from abroad using foreign currency, only open framework agreements should be entered between GPSA and suppliers to cater for price fluctuations
24) Politicians should not be involved in public procurement process e.g. involvement of councilors in local government authorities
25) It should be made mandatory to use JKT SECURITY SERVICES in all public owned premises
26) Security services be eliminated from GPSA’s “Common Use Services” list due to its sensitivity and
27) The amendment/repeal of Public Procurement Act, 2011 should not be done in haste so as to avoid the weaknesses encoutered by its predecessors.
The author is an Authorised Procurement and Supplies Professional.
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