The Federal Government has approved new guidelines for the debarment of contractors, consultants and service providers, outlining six grounds that could lead to their exclusion from Federal Government procurement for between three and five years.
The grounds include offering bribes or other benefits to influence procurement decisions, conviction for fraud, wilful failure to perform contractual obligations, a history of unsatisfactory performance, falsification of documents and debarment by a multilateral organisation.
The directive was contained in a circular titled “Implementation of the National Guideline on Debarment of Contractors,” signed by the Secretary to the Government of the Federation, George Akume.
The circular was addressed to the Chief of Staff to the President, Deputy Chief of Staff to the President, Head of the Civil Service of the Federation, Principal Secretary to the President, ministers and ministers of state, National Security Adviser, Economic Adviser to the President, special advisers and senior special assistants.
Others addressed included service chiefs and the Inspector-General of Police; the Governor of the Central Bank of Nigeria; chairmen of the Federal Civil Service Commission, Police Service Commission, Code of Conduct Bureau, Code of Conduct Tribunal, Federal Character Commission, Revenue Mobilisation Allocation and Fiscal Commission, Federal Inland Revenue Service and Independent National Electoral Commission.
The circular was also sent to the chairmen of the National Population Commission, Independent Corrupt Practices and Other Related Offences Commission, Economic and Financial Crimes Commission and National Drug Law Enforcement Agency; all permanent secretaries and heads of extra-ministerial departments; Clerk of the National Assembly; Chief Registrar of the Supreme Court; Accountant-General of the Federation; Auditor-General for the Federation; and directors-general and chief executives of parastatals, agencies and government-owned companies.
Akume said the guideline was introduced “in order to promote integrity, transparency, accountability in public procurement and to ensure value for money in public expenditure and to protect government from bad and non-performing contractors.”
The circular stated that the guideline establishes “the grounds and procedures for excluding contractors, suppliers and service providers from participating in Federal Government procurement” where they are found to have violated the Public Procurement Act, 2007, or engaged in wrongdoing relating to contract delivery.
Under the guideline, a contractor, consultant, or service provider may face debarment where there is evidence that the firm or individual gave or promised money, gifts, or any tangible item to a current or former employee of a procuring entity or the Bureau of Public Procurement in an attempt to influence a procurement action or decision.
The government also listed offering or giving employment or another benefit that can be quantified in monetary terms to a current or former employee of a procuring entity or the BPP as a ground where it is intended to influence a procurement activity.
Another ground is conviction for fraud or any other offence connected with obtaining, attempting to obtain or performing a public contract or subcontract.
The guideline further targets contractors that breach government contracts through “willful failure to perform in accordance with the terms of a contract” or those with “a history of failure to perform or of unsatisfactory performance of a contract.”
Falsification of documents is also expressly listed as a ground for debarment. In addition, the government said a contractor already debarred by a multilateral organisation “may be considered for debarment by the government.”
Once a contractor is debarred, Ministries, Departments and Agencies are prohibited from soliciting offers from the contractor, awarding contracts to it or consenting to subcontracts involving the contractor. The circular also provides that a debarred contractor “shall not conduct business with the government as an agent or representative of any other contractor, consultant or service provider.”
However, an existing government contract or subcontract may continue despite the debarment where a government agency determines there are other good reasons for doing so. The sanction will also apply to partners in a joint venture agreement.
The guideline stipulates that the Debarment Committee may impose a sanction “for a period of not less than three years and not exceeding five years.” The guidelines set out a process requiring the BPP to investigate and notify contractors before a final debarment decision is made.
The BPP may commence proceedings where, during its review, surveillance or audit, it has cause to believe that a contractor has contravened the Public Procurement Act or regulations made under it.
A procuring entity can also submit a debarment recommendation after conducting adequate findings, provided the recommendation is based on evidence approved by its Accounting Officer.
The BPP is required to acknowledge a debarment request within seven working days, while the Secretary of the Debarment Committee must review the information within 10 working days.
Where a case capable of leading to debarment is established, the BPP is to issue a notice to the affected contractor within five working days. The notice must contain the specific allegations and grounds for the proposed debarment. The contractor, consultant or service provider will then have 10 working days to respond. The BPP may grant an extension of not more than five working days upon request.
The circular provides that the respondent may submit a written response personally or through counsel, together with additional information in support of its defence. It adds that the response must be accompanied by a verifying affidavit “attesting that the information provided is truthful, after exercising due diligence in reviewing the matter.”
Where the notice cannot be delivered physically or electronically, the intention to debar may be published in two national newspapers, the Tenders Journal and the BPP’s website, for at least 10 working days.
If no response is received within 10 working days after publication, the respondent may be considered to have been served, allowing the Debarment Committee to proceed on the basis of the available material.
Upon receiving a response, the committee is required to consider it within 15 working days and arrive at a decision on the merits. Where the committee decides to impose debarment, the BPP must issue the final notice within five working days of receiving the committee’s decision.
The circular states that the final notice must contain “the decision to debar, grounds for the debarment, period of debarment and the implications of the debarment.” The name of the debarred contractor will then be entered into the BPP database and published on the Bureau’s website, the Federal Tenders Journal and other platforms.
The new guidelines build on Nigeria’s existing public procurement framework established by the Public Procurement Act 2007, which provides the legal framework for public procurement and establishes the BPP as the regulatory body responsible for monitoring and regulating procurement processes.
The Act provides for measures to promote competition, transparency and value for money in public procurement and contains offences and sanctions relating to procurement misconduct, including fraud, collusion and other breaches.
The BPP has also developed procurement systems and platforms intended to improve transparency and public access to information on Federal Government contracting and procurement processes.
The new guideline provides a specific administrative framework for acting against contractors, including the grounds for debarment, notification, opportunity to respond, committee review, publication of sanctioned contractors and possible reinstatement after the sanction period.
The circular directs all Accounting Officers to bring the contents of the guideline to the attention of their Tenders Boards, Procurement Planning Committees, Procurement Departments and all officers involved in public procurement.
It concluded, “The implementation of this circular is effective immediately, and strict compliance is advised.”
Source: punchng.com
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