How procuring entities undermine PPADB
Innocent Selatlhwa | Monday May 9, 2022 06:00
This goes unpunished as the PPADB only advises such organisations to do better. While all rejected submissions are passed on to the Ministry of Finance, it is not all who get paid.
Section 44 (2) and (3) of the PPAD Act as read with Section 3 of the PPAD (Retroactive Approvals) Order of 2012 states that the Board may by resolution; approve, retroactively, a bid or invitation to tender issued by a procuring or a disposing entity where the job to be performed by a selected contractor or the service to be provided by a selected service provider is urgent and necessary - (a) to protect life; or (b) to protect the environment. Despite this, through notices from the Board published weekly, requests for retroactive approvals not in line with the above cited provisions keep coming. While PPADB public relations and education manager, Charles Keikotlhae says the requests are not many, for the few that are requested, the Board continuously encourages Procuring Entities (PEs) to follow the procedure.
“The Board has a continuous arrangement of capacity building on yearly basis in which PEs are capacitated on procurement procedures and planning in order to curb circumstances like this one. The Board discourages retroactive request, and encourages PEs to prepare and plan well for projects in order to avoid retroactive requests,” he said. Ministry of Finance public relations officer Fenny Letshwiti said the Board could only approve a request if it meets the requirements of the said provisions.
He also said if the Board has not approved the request, the PE may then refer the request to the Ministry of Finance in line with government financial processes and procedures. “It is therefore, important to note that every retroactive request is considered on its own merits since circumstances may invariably differ from one procurement situation to the other, giving rise to the fact that these requests may also differ.
Some of the factors that are considered in a retroactive payment request include but are not limited to whether the procurement procedures were followed in engaging the contractor/service provider, whether there is a contract between a procuring entity and the contractor/service provider, whether the contractor/service provider delivered the goods or rendered services as per the tender requirements or contractual agreement and whether government has indeed received such goods or service.
In some cases, it becomes imperative to assess the contract, to validate and weigh possibility of the litigation, where the payment is not approved,” he said. Letshwiti said the retroactive request is paid based on its merit as dully assessed by the Ministry. He said the requesting PE has to provide all the necessary information and documents to allow for an informed decision making. “Retroactive payment requests are usually approved where sufficient justification has been provided.
The request, which does not have sufficient justification or there is no indication of the signed contract between PE and contract/service provider, or some anomalies have been identified on the procurement process, might not be approved,” he said, adding that where the request for payment has not been approved, the PE would be informed and they may decide on the next course of action. Effective April 14, 2022, the new Public Procurement Act (PPA) of 2021 has come into effect repealing the old PPAD Act.
Under the new PPA, retroactive approvals are provided for under Section 68. According to Keikotlhae, retro approvals are still for urgent and necessary cases to protect life; or to protect the environment.