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Botswana public procurement law: An overview and comparative study

CORRESPONDENT
Apple of discontent: Public procurement is a hotly contested affair PIC: MORERI SEJAKGOMO
Professor Geo Quinot, in his work ‘Public procurement law in Africa within a developmental framework’ has linked public procurement with development.

He referred to the United Nations 2030 Agenda (hereinafter referred to as UN 2030 Agenda) for Sustainable Development. Goal 12.7 of this agenda sets out the target to “promote public procurement practices that are sustainable, in accordance with national policies and priorities”.

He also made reference to the Addis Ababa Action Agenda of 2015, through which parties committed to “establishing transparent public procurement frameworks as a strategic tool to reinforce sustainable development”. He cited other instruments like the work of the United Nations Working Group on the business and Human Rights all which in my view show the linkage between public procurement and sustainable development. In this paper I examine the public procurement system of Botswana and I focus on transparency, integrity and competition as the principles which promote development.

The legislative framework of  Botswana

Today public procurement in Botswana is mainly regulated by Public Procurement and Asset Disposal Act, 2001 (PPAD Act) and Public Procurement and Asset Disposal Regulations designed on the February, 24 2006. These instruments are supported by Operations manual, standard operating policies and procedures for public procurement of November 26, 2013 as well as PPADB circulars issued from time to time. Previously public procurement was scantily dealt with by the Corruption and Economic Crime Act, 1994.

Section 26 of the PPAD Act sets out the principles of Botswana public procurement system. One can deduce from this section that the cornerstone of Botswana’s public procurement law is composed of transparency, integrity and competition among others. One may agree with S Schooner in “Desiderata: objectives for a system of Government contract law” (2002) 11 Public Procurement Law review 103, that these are the objectives which underlie a procurement system. The reasons on the importance of these objectives should become apparent below. However, this should not be understood to mean that there are no other important principles/objectives from this framework. Indeed there are others like value for money, efficiency and equal treatment. I examine transparency, competition and integrity as principles which support development below.

Transparency, integrity and competition in public procurement

These principles are briefly discussed below.

i) Transparency

In terms of the PPAD Act, a procurement system must be transparent and be accountable to promote ownership of the system and minimise challenges. In terms of this Act, this is achieved amongst other things, by circulation of standardised bidding packages which are mandatory to be used by procuring entities, disclosure of instructions, disclosure of the criteria to be used in the evaluation process, disclosure of the value and weights to be attached to each criteria and the procedure or methodology to be followed in the conduct of the evaluation. The legislative framework promotes publication of tenders, bids received, award decisions and prices. Finally but not least, transparency is attained through publication of complaints and challenges dealt with by the Board or the Independent Complaints Review Committee and the media is briefed from time to time on the developments regarding the procurement and disposal system which (developments) are of public interest. In summation, one can say that, through transparency, Government business is done in an open and fair manner. It is discernible that, lack of transparency will defeat openness and fairness.

ii) Integrity

Integrity promotes public confidence in the procurement system. From the PPAD Act, there are many ways through which integrity is ensured. Amongst other things, the Act decrees that bids which do not comply with applicable procedures are invalid, no factors outside those explicitly stated in the bidding package shall be considered in arriving at decisions unless those factors are in accordance with best practice, there are control and oversight mechanisms like the Audit System, Independent Complaints Review Committee, recommendation of systematic improvements which are done in consultation with Public Oversight Agencies and Advisory Committee on public procurement. Finally but not least, all those involved in public procurement are to sign a code of ethical behavior and a declaration of business interest where necessary.

iii) Competition

Under Botswana PPAD Act, the law advocates for competition by using the most efficient and competitive methods of procurement to achieve best value for money. The system sets out a number of procurement methods. Generally it is the open domestic bidding method which is to be used and the Act lays down some departure controls from the said method. There are other procurement methods like the open international bidding which should be used where optimal competition may be enhanced with foreign bidders’ participation. It is recognised that opening participation in the procurement of works, services and supplies will increase value for money.

Comparison with other public procurement

systemsIt seems to me that, Botswana’s approach to public procurement is similar to that of other countries in Africa. Thus, there are other African countries (selected below) which place emphasis on a system which has transparency, integrity and competition. I briefly demonstrate this point below.

i) Uganda Public Procurement and 1994 UNITRAL model law.

Quinot (in G Quinot “Symposium: Europe meets us and others: Current developments in procurement law with a focus on the selection, qualification, and exclusion of tenderers” (23-07-2014) has argued that, Botswana has indirectly relied on the UNITRAL 1994 model law. He used the word “indirect” because he argued that Botswana’s procurement legislation was greatly influenced by Ugandan law which in turn directly originated from the model law. The Ugandan Public Procurement and Disposal of Public Assets Act, amongst other things, sets out transparency, accountability, fairness and competition as the basic principles of public procurement. It stipulates that, those appointed as members of the Board shall be of high level of professional competence and integrity.

ii) South Africa and Kenya Procurement law.

As far as South Africa and Kenya are concerned, public procurement and its principles have been constitutionalised. Section 217 (1) of South Africa’s Constitution essentially provides that, when procurement is undertaken for contracts for goods and services, it must be done so with a system which is fair, equitable, transparent, competitive and cost effective. Kenya too mirrors the same words in its Constitution (it appears Kenya has borrowed from South Africa).

iii) Namibia Procurement law system.

Procurement in Namibia is regulated by Public Procurement Act, 2015. Like Countries above, Namibian system has principles of integrity, transparency and competition. It guarantees

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procurement integrity by, amongst other things, regulating conduct of staff members of procurement entities and conduct of bidders and suppliers. It promotes competition, for example, through open advertised bidding method. It also seeks to be transparent in procurement business. For example, the Policy Procurement Unit is responsible for issuing standardised bidding documents for mandatory use by procurement entities.

iv) Nigeria Procurement law system

Procurement in Nigeria is regulated by the Public Procurement Act, 2015. This system is also anchored on the principles of transparency, integrity and competition. This has been underscored by Kasim (PhD) in “Public Procurement Reform and Good Governance in Nigeria” (2016)”.

Transparency, integrity and competition towards sustainable development

Learned writers Quinot and Williams-Elegbe in their work “The new challenges and opportunities for public procurement regulation in Africa” in S Williams – Elegbe & G Quinot (eds) “Public Procurement Regulation for 21st Century Africa”, (2018) 1 3” recognise the linkage between public procurement and development. They argue that, in many systems in Africa, the open use of public procurement for social policy (as a way of development) purposes has been a long outstanding practice. Moreover, Quinot in his work ‘Promotion of social policy through public procurement in Africa’ in G Quinot & S Arrowsmith S (eds) Public Procurement Regulation in Africa (CUP 2013) 370 380-403” has further demonstrated the linkage between public procurement and development. He did so by focusing on different preferential procurement rules which are used to implement social policy objectives. He focused on a number of countries including Botswana but with a special focus on South Africa and Kenya. As much as I agree with Quinot on the preferential procurement rules as a mechanism for promoting social policy, I submit that transparency, integrity and competition are also key principles which enhances promotion of social policies.

For exposition, one can argue that the rules relating to these principles curb corruption. Arrowsmith in “Arrowsmith S “Public procurement: basic concepts and the coverage of public procurement rules” in Arrowsmith S (ed), Treumer S, Fejo J & Jiang L”) has observed that, integrity refers to the idea that procurement should be carried out without any influence of corruption. She wrote that competitive bidding and transparency are fundamental tools for addressing corruption. Thus the procurement process becomes open to all participants, competitive for those who qualify to take part and it becomes honest. It should always be remembered that, corruption, as Diallo has put it (in M Diallo, “Corruption, Fraud and African Procurement” in S Williams-Elegbe & G Quinot (eds) “Public Procurement Regulation for 21st Century Africa” (2018) 99 102.) is a major obstacle to economic growth, poverty reduction, job creation and the continent’s structural transformation. Diallo argues that, through a system which encompasses the above principles, there is theoretically no room for corruption therefore leading to development in economic growth, poverty reduction and job creation. Secondly, through a system which promotes competition, everyone has an equal opportunity to participate in business with Government. This in turn, coupled with domestic social policies, leads to the support of businesses and distribution of wealth, therefore attaining development through a system which promotes open economy. A system with integrity causes the public to have confidence in it (see: section 26(g) of the PPAD Act, Botswana). This is encouraging as people will be eager to do business with Government having confidence in the procurement system (See: Arrowsmith “Basic Concepts” in Public Procurement Regulation 9 notes that corruption scandals deter firms from bidding for future contracts”). Thirdly, the roles of oversight institutions and in fact some of which aim at improving public procurement really help to ensure that there is compliance with the applicable legislation. It means, if correctly utilised (i.e. oversight institutions), factors that inhibit development like corruption stand to be dealt with and factors that can cause loss of government credibility are eliminated. I believe that through these principles (transparency, competition, integrity) people may ultimately be educated on procurement processes and they may stand a chance to question what happened in the event of none compliance.

Conclusion

The foregoing represents an overview on examination of transparency, integrity and competition as cornerstone of Botswana’s procurement law system. Arrowsmith (in her work Arrowsmith “Basic Concepts” in Public Procurement Regulation) notes that these principles as key principles for implementing procurement objectives.

I have also indicated that generally, other countries have similar principles in their procurement systems. I submit that without these principles, corruption will prevail, government credibility will be lost, open and competitive economy will not exist and this means that all social policies towards sustainable development may be negatively impacted.

RecommendationsFrom this overview, I do believe that procurement system of Botswana can better be developed through use of e-procurement. I acknowledge that already there are signs of e-procurement in the system. For example, section 55 and section 56 of the PPAD Act recognise e-procurement as a method of procurement. Consequently, I recommend that the PPADB should do its best to fast track use of e-procurement on the entire procurement process. One may agree with Diallo (Diallo “Corruption, Fraud and African Procurement” in Public Procurement Regulation 114) that, e-procurement helps prevent human errors and it increases transparency which limits opportunities for corruption and bribery.

Perhaps the other important thing is to constitutionalise these principles of procurement. South Africa and Kenya have done it and the reasoning behind this is that, if procurement is elevated to constitutional status everyone will know that breach of these principles amounts to breach of the constitution (see: Williams- Elegbe A comparative analysis of public procurement reforms in Africa 16-17).

Finally I recommend that Botswana should always be on the lookout for best practices around the world which enhances these principles because a procurement system should not be held as a finished product. It must, as Quinot & Williams-Elegbe in their work “Challenges & opportunities” in Williams–Elegbe & Quinot (eds) Public Procurement Regulation”, be considered to be a work in progress.

BOINEELO MOSWEU*

*Boineelo Mosweu is a Procurement and Construction law Practitioner, holds LLM in Mercantile Law from Stellenbosch University and practices Law at Attorney General’s Chambers. This discussion is an edited version of a paper presented during a lecture at Stellenbosch University.



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