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Frequently asked Questions about the Public Procurement Act

PUBLIC AWARENESS WORKSHOPS ON THREE NEW FINANCIAL LAWS:
THE FINANCIAL ADMINISTRATION ACT 2003, ACT (654), INTERNAL AUDIT AGENCY ACT 2003, ACT (658), AND PUBLIC PROCUREMENT ACT 2003, (ACT 663

Assuming you have a small Health Service and you don’t have a big team (required members to form a tender committee) yet you take unilateral decisions on procurement. How will the committee be formed?
Ans: There is no public or government health institution without adequate personnel to form the committee. If there is no big team to form the committee, you should at least be able to form a quorum, which is five.

Before the law came into effect the Minster of Health had its tender committee, do we have to abandon the old committees?
Ans: Yes. The old committee must be abandoned and form the new committee according to the Public Procurement Act, 2003 (ACT 663)

Assuming the procurement is beyond the threshold of an Entity, does one have to move to Regional Tender Committee or to the Central Tender Committee? i.e.is there a need for me to go through the structure.
Ans: Yes. You have to go through the structure. If the threshold is above the Entity Head, you move to the ETC, depending on the threshold you move to the MTRB then finally to the CTRB

Should World Bank (Donors) Procurement guidelines be used or GOG guidelines be used in the event of a project being funded by a World Bank (Donor)?
Ans: If a donor funds a project, the law allows the guidelines provided by the donor to be used in that procurement.

Is there room for communication on the procurement working document structure?
Ans: Yes. There is room for communication on the procurement document structure

What do we do with suppliers of goods that refuse to accept Tax deduction because they have already paid tax?
Ans: If the supplier has paid tax which covers the contract amount, then there is no need for any tax deduction. Where tax does not cover the contract amount there is the need for tax deduction.

Can Heads of Institution delegate authority to someone to award contracts?
Ans: No

Are the SOE’s bound by company’s code to operate under the law?
Ans: No, they are not bound by the company’s code to operate under the law because this is a new law and it was not taken care of in the company’s code, but if the SOEs are using GOG funds, then they are bound to operate under the law.

Suppose a car is involved in an accident, how do you repair it when it has not been budgeted for?
Ans: A supplementary budget should be presented to cover the expenses of the repairs

Assuming we are to buy two tyres for our department are we to go by the procurement process?
Ans: Yes, but you can request for the use of restricted tendering.

Which management staff forms the basis of the recommendations, Ghanaian or foreign staffs?
Ans: Question not clear

What other training opportunities are available to public apart from the ongoing workshops?
Ans: In house training by facilitators at the request of any Entity. But not at a cost to the Board.

How do you reconcile EU framework contract with the new laws
Ans: E.U. framework contract shall be in accordance with the terms specified by EU.

Could you please emphasize on the situation where there is an advert for expression of interest for services for National Competitive Tendering and International Competitive tendering and five hundred peoples apply yet you need only six out of the lot, will it be appropriate to use restricted Tendering
Ans: No. You use the appropriate whether NCT or ICT

? When does one prepare a procurement plan; before or after receiving the approved budget?

Ans: Procurement Entity shall submit to its tender committee not later then one month to the end of financial year the procurement plan for the year for approval. Each procurement entity shall submit an update of the procurement plan to the Tender Committee after approval of the budget and at quarterly intervals. Section 21 of the Procurement Act.

? Soon after the certification of a suppose good quality contract by a professional only for one to realized the quality is otherwise (inferior), will the professional be subjected to penalty for causing financial loss to the state?

Ans:

? For some goods you have to use them for good period (e.g. three weeks) before you can finally accept it, can Final Acceptance for goods be reviewed to cater for the testing period?

Ans: Yes it can be reviewed but only through the Act of parliament since the law was passed by an act of parliament. For the purpose of accepting quality goods, duration can be given before the final acceptance.


? Assuming a procurement cost cannot be met at a given time due to its cost, what will be do since you are not to divide procurement order into parts?

Ans: You administer the procurement according to the approved budget. You have to order the procurement according to the amount available


? How do you determine the financial resources or turnover of a tender

Ans: Through their audited financial statement or their bank statement, if possible their assets

? How do you reconcile, a contractor who wants to guarantee for a co contractor who has won a contract yet the later is not financially sound to execute the contract

Ans: That contractor will automatically loose the contract

? What will be the position of a person with the law, who has awarded a contract only for his budget to be reduced by 25% or

Ans:

? For one who does not have ceiling or approved budget how does he prepare a procurement plan?

Ans: You can prepare your procurement plan, then after the approval of the budget you update the plan or review it.

? A fundamental problem with the Law, is that we use our local currency (Cedis) for the thresholds, with the inevitable inflation of our currency, has provision been made to review the values of the figures if the cedi devalues?

Ans: Yes there is a provision

? Will the procurement board be having any capacity building for the various departments?

Ans: Yes there will be capacity building for various departments when ever necessary.

? What is the degree of responsibility of the head of department with regards to administration and fraudulent conduct or a subordinate?

Ans

? As at now many institution have problem with inadequate funding , won’t the engagement of the services of a lawyer on the tender committees add more cost?

Ans: No it will not add more cost, but they rather save money through appropriate procurement methods.
? The tender committee does not consider the District Education Officer. Why?

Ans: Because that is what the law says.

? Will a locally based but foreign owned company take part in National Competitive Tendering?

Ans: No because it is not a domestic company

? If a philanthropist donates money to a public school (an Institution) for needy student, can that money be used as a public fund?

Ans:

? Can an Entity Tender Committee member apply as a tender

Ans: yes he can apply but cannot sit on committee

? Due to delays in releasing grants/funds to public institutions, schools and colleges normally buy goods on credit without price, quotations, what is supposed to be done in such instances

Ans:

? Can controller and Accountant General’s Department do procurement on behalf of other organizations, for instance DVLD?

Ans: No, because each government department must have its ETC for purpose of Procurement

? Vice Chancellors are excluded from the universities tender board. Why are heads of other institutions members under the law?

Ans: No not necessarily the same

? Does the Attorney General’s Department have enough Chief State Attorney to be on all the boards?

Ans: yes

? Can a ministry with different departments and agencies form one entity tender committee and should these agencies constitute different procurement entities

Ans: No, Yes.

? Will the A-G’s representative on the procurement boards of statutory independent organizations be an infringement on their independence?

Ans: No it will not be infringements on their independence

? Can entity replace the representative of the A-G’s department with their own legal officers on the tender boards?

Ans: No, according to the law, it can’t replace AG representatives
? Can an entity go ahead with their procurement once the A-G’s representative fails to attend a meeting?

Ans: Yes, if only they form a quorum. But the AGs representative must be well informed before the meeting

? Can the few MPs in Greater Accra Region be represented on the several ETCs in the Region

Ans: Some of the MPs from other regions will be added to the ones in Accra

? What is the point of contact prior to the establishment of the PPB?

Ans:

? Which of the three laws Finical Administration Act, Public Procurement Act and Internal Audit Agency Act takes premium over the other.

Ans: None of the laws supersedes the other, they are addressing different issues altogether.

? Due to difficulties in procuring students uniform, and one buys uniforms for two years period (prior to admissions) on credit, conscious of price increment without using the new procurement process, will the new law take retroactive effect?

Ans:

? Does the new law go with the composite budget?

Ans: Yes it goes with a composite budget.

? Can members of the Tender Committee also be the same member for the entity Tender Committee?

Ans: According to the law, no

? Who prepares the procurement plan?

Ans: The head of the procurement unit or any other person as may be directed by the Head of the Agency

? When it comes to Tender Committees, when do MPs get their letters to attend meetings?

Ans: As early as possible

? If an aggrieved Tender raises false accusations against a person awarding a contract, ( and investigations prove it to be baseless) what action will be taken against the accusers?

Ans:

? In determining the Government assets, how should you go about it, if say a vehicle was old and as a director you are about to go on retirement and you ask for the sale of the vehicle?

Ans: Refer Public Procurement Act (section 83 and 84)

? Is there any limit where if a contractor defrauds the government in any government procurement or contract? Can the department be taking to the Financial Administration Tribunal for prosecution

Ans:

? Is there a reason why the Ministry and RCC the RCD and the Chief Directors are not included but in the SOEs and the Subvented, the Chief Executives are included?

Ans: That is what the law says

? Are we supposed to publish the evaluated report?

Ans: no

? After the review, are the tenders supposed to see the report or can he/she make request?

Ans: Yes they can see it if want

? Since the process of tendering to the review is confidential, is the document still confidential

Ans: No

? Should they have any ground to feel aggrieved?

Ans: yes, especially where a new criteria is introduced

? Can we set a time limit for the aggrieved party for complain or complain?

Ans: Yes

? What should we do it the aggrieved party set to know when the project or contract is ongoing?

Ans:

? It is not appropriate of the threshold to put in form dollars instead of the Ghanaian cedis?

Ans: It is not appropriate.

? Someone want to understand the difference of the best evaluated offer and the best evaluated bidder?

Ans

? How soon do we know that, the law had been accepted in the nation and nationally as good?

Ans: it has been accepted because of the approval by parliament

? What about the awards of contract or projects after 27th August 2004, when we not educated in the law?

Ans: The board will take action on what to do.

? Is there a reason why we always say tender to tenderes â€กฐ this the British way

Ans:

? So with coming into force of this law, the supply commission will vanish

Ans: No they will act as consultants.

? What should we do it the procurement Board has approve for a contract to be given and the head of my institution stop me and inform me about coming into force of the law but this happen at the early part of August 2004.

Ans: Question not clear

? Since the evaluation Board are to evaluate the Process every stage, are they also supposed evaluate the tender evaluation report?

Ans: They will do that if the need arises

? What should one do, if a contractor wins a contract and never visit the site?

Ans: The contract will be given to another contractor

? Someone wanted to find out if as an Entity you get your source of funds from three sources should you do it on three sheet of procurement plan?

Ans: It should all be on one procurement plan

? Someone wanted to know if in case you are to procure stationary but which will be on quarterly bases should one dived the procurement into lots?

Ans: No, but one should indicate as quarterly, semi annually or annually.

? Is there any reason for not given mobilization from procurement at a cost say ¢19,000,000?

Ans: question not clear.

? Adjust the pre-and-post qualification because someone wanted to fine out if it is the method that should there or the date

Ans: Is the method which should be there

? Some want to know the meaning of an Entity

Ans: It is a body that operates on GoG fund

? Someone wanted to know that if he as the head of the MDA who wanted to purchase something. Is it his responsibility to find out if the suppliers owes the government?

Ans: yes

? The liability of an officer who after giving a contract to contractor who defrauds the agency but after realizing get to know?

Ans: Abrogate the contract

? If what you need to buy can not be bought at VAT registered person in that particular place, what you will do?

Ans: Go to a place where you will find a VAT registered person

? Someone asked that in the prosecution, where the facilitation made mentioned of the Parliamentary Finance Committee and the Financial Administration Tribunal. He wanted to fine out if the PFC and FAT are in existence?

Ans: yes

? Someone wanted to find out in the membership of the Financial Administration Tribunal where the following composite the members
? Chartered Accountant
? Management Accountant
? Professional Value
? High Court Judge

? With enough accountants at CAGD who are experience enough to be on the membership who are not chartered accountant how should you go about it?

Ans: Just follow what the law says

? Who will be paying the advertisement of the cost of the NCT?

Ans: The Entity

? Someone asked about the remuneration or salaries of the members of the various Tender committees?

Ans: That will depend on the entity on which they serving


? Can we get standard documents for smaller goods?

Ans: you can get it

? He wanted to know, whether the schedule 1 (d) may not be applicable in the near future but we should use it fior the time been


Ans: Question not clear

? With the number of parliamentary members, can they be able to fit in the Central Management Agency?

Ans: Yes they can be able to fit into it

? One wanted to find out, don’t the resources person thinks that they (CWSA) don’t have control since the two MPs representing or been appointed by the regional caucus?

Ans: It is the CWSA’s ETC which will have maximum control and t he MPs are part of it

? Are there any exception in the procurement method?

Ans: Yes there may an exception as may the decisions of the Board in accordance of the Law

? Can it be possible that in procurement using PQ or shopping taking into consideration the quality of the goods work or services rather then the lowest bid prize?

Ans: It will be possible. You will consider both the price and the quality

? Is there a minimum amount of money scoundered before taking to the tribunal?

Ans: No the law did not state any minimum amount.

? Who is the persecutor in this case?

Ans: The prosecutor is the state, (Attorney General).

? In your presentation your made mention of regulation, is the regulation different from the ACT

Ans: No, is not different

? You made mention of PPB it is a new establishment

Ans: Yes, it is a new establishment in place to oversee public procurement

? Since most of the various units input is another persons out put and sometimes the output of a unit becomes some one out put and back to you as your inputs again, and in a case where due to the delay of a particular units, where you are not able to complete within the limit what should u do?

Ans: Question not clear

? What is the level of the penalty units? With the functional approach of the public service when we did not start implementation the act?

Ans:

? In a case where a tenders’ motive is to win a contract, decided to bring the price lower to win, and after winning the work he or she could not deliver satisfactorily

Ans: If a contract is not satisfactorily then it will not be accepted. So you don’t’ have to look at lowest price only

? Is there the need to review contract process?

Ans: Contract process may be reviewed when the need arises but in accordance with the law

? Is there any penalty for the MDAs and MMDAs from the non-compliance of the setting up the Tender Committees as stipulated?

Ans: Yes, the minimum penalty is a fine not exceeding 1000 penalty unit or a term of imprisonment not exceeding five years or both (section 92, of the ACT)

? Can the internal auditor be a member of the ETC?

Ans: No

? In a case where after going through the valuation false information is detected what will be done to the tendered?

Ans: The tender with the false information will be disqualified

? Since the Act didn’t categorically mentioned of the conflict of interest and a director is interested in the award of a contract what should you do as the head?

Ans: Only the ETC can award a contract, according to the law, the Director has no power whatsoever to award a contract unless the amount is within his/her threshold.

? With the institution that are mandated to issue out license for work, when one is not qualified but still say will compete with the qualified and competent firms. We want to know what should we do?

Ans: Disqualify those who are not qualified.

? Since the function of the PPB is to help the local industry grow, then why should you advice internationally?

Ans: PPB is not just advising internationally buy one when the contract false under international competitive tender where most of the local industries can not deliver to expectation

? With the LPO be abolished with the coming onto force this law?

Ans: No it will not be abolished

? Someone needs clarification on lots and phases.

Ans: Question not clear

? In which instances will you allow lots and phases?

Ans: Question not clear

? In case where after preparing the procurement plan and during the mid of the year, it is possible to add or insert something new other than the list of item to procure during the year


Ans: The procurement plan is always open to review but you have to submit every review always, especially quarterly or semi annually to the Review Board and to the PPB.

? Single source is the simplest and the best, in the negotiating for the prices, what will you do it if supplier did not cut down the price?

Ans: You look for different supplier with the lowest price.

? Will the procedure through which we get our funding change? Because in case where 1 need 2 million for the purchase of fertilizers but my allocation was divided into four thus quarterly, but I will need the fertilizer in December where the last quart allocation comes.

Ans: no the funding procedure will not change. You wait when the last allocation comes then you buy your fertilizers

? Are there any Sections, Act, or Schedule which stipulate the right of the storekeeper to either his boss or any anybody?

Ans: Section 32 of the FAA ACT 654.

? Since you made mentioned in the pervious presentation that without procurement plan no budget, now in a case where you have provided with say competitors from the headquarters without priding and without you can not print out the hardcopies to be submitted to Ministry of Finance and Economic Planning and you are not fused into the internal budget, what should you do?

Ans: Question not clear

 

 

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