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Untangling bureaucratic procurement processes

M S Siddiqui | August 01, 2019

Bangladesh has a public procurement system that includes the Central

Procurement Technical Unit (CPTU) that regulates procurement and
procurement laws with rules and associat ed documentations. It is headed by
a Director General, supported by three directors and a number of staff
members and officials. As per the Public Procurement Act 2006 (PPA), CPTU
has the mandate to regulate and monitor public procurement for different
departments of the government. CPTU is a unit within the Implementation
Monitoring and Evaluation Division (IMED) of the Ministry of Planning that is
headed by a Secretary. It monitors physical and financial performances of
the development projects and prepar es quarterly, annual and, in some cases,
special reports for the policy-makers.

If the purchasing authority does not follow the law and rule or the bidder is
aggrieved by their decisions in some way, then the bidder can submit a
written complaint to certai n officials. Chapter 12, Clause 56 and 57 of Public
Procurement rule, 2008) procedure comprises the following: (1) The tenderer
submits the complaint to the Procuring Entity (the Project Director (PD), Line
Director (LD), Project Manager (PM), Procurement Officer, Officer assigned
for Procurement who issued the Tender or Proposal Document), (2) If the
tenderer does not receive the response within seven working days or is not
satisfied with the response then complaint can be submitted to the Head of
Procuring Entity (HOPE). HOPE should respond in three working days, (3) If
the tenderer is not satisfied with the response from HOPE, the complaint can
be submitted to the Secretary of Ministry. Secretary of Ministry should
respond within seven working days, (4) If the tenderer is still not satisfied
with the response, then the tenderer may wish to consider pursuing the
appeal through the CPTU Review Panel (RP).

The complainant can appeal to a RP only if the bidder has exhausted all of
his or her options of complai nts to the administrative authority (i.e.
Secretary) under Rule 57 of PPR-2008. The Review Panel shall issue written
decision within a maximum of 12 working days.
The review at the administrative level provides an opportunity for the
correction of mistakes, but cannot be considered as an independent review.
Very few complaints are submitted to the RP due to the high threshold and
high deposit requirements. In practice, the majority of procurement
complaints are submitted to the courts of law.

The public procurement system in Bangladesh therefore lacks an effective

mechanism for challenging procurement decisions and falls far short of
international standards, such as those set by the United Nations Convention
against Corruption, which Bangladesh has ratified and requires an effective
system of review and appeal (article 9 -1-D). Timescales for both submission
of complaints and appeal and, the issue of decisions are short compared to
many other countries.

Once the complainant brings the complaint to the review committee, this last
and final step will be reviewed by an 'expert committee' composed of (1) a
senior retired government official, (2) a technical expert and another expert
may be appointed by Bangladesh Federation of Chamber of Commerce &
Industries.

The existing review and appeal processes for procurement are exceedingly
bureaucratic and multi -layered. As a result, this discourages aggrieved
tenderer/applicant from seeking legal remedies. As seen ab ove, for the same
and the one legal injury a potential participant needs to resort to a plurality of
channels. Decisions of the review panel are, however, subject to judicial
review by the Supreme Court's High Court Division (HCD). The complex
bureaucratic procedures of procurement and complaint redressing are also
under pinned by open-ended discretion, which may foster corruption.

There should be some check and balance of punishment for irregularity by

the government officials, who acts in contravention of the Act or Rules 2008.
They should be made amenable to departmental punitive actions on the
ground of 'misconduct' as defined in the disciplinary rules applicable to
government servants. Additionally, or as an alternative to the departmental
measures, criminal prosecutions may also be initiated against such a
recalcitrant officer/employee for appropriate offence(s) of corruption or
embezzlement of public funds. Lastly, debarment of an officer/employee,
found involved in twisting or contravening the provisi ons of the PPA/PPR,
from future procurement practices can be considered.

PPA also imposes an obligation on the procuring entity to ensure that none
of its officials or members of staff is engaged in corrupt, fraudulent, collusive
or coercive practices duri ng the processes of public procurements. The
existing procurement law has, thus, sought to prevent corrupt practices likely
to be adopted both by the government officials and the participating
entities/persons.
But all these procedure are off-set with professional immunity. The Public
Procurement Act 2003 has given immunity to the purchasing officials for
protection of action taken in good faith. Section 69 from the Act reads "No
suit, prosecution or other legal proceeding shall lie against the Government
or any public servant for anything which is done or intended to be done good
faith in pursuance of this Act".

Bangladesh has not yet established the office of ombudsman generally to

investigate into charges of corruption in public offices. Nor is there any
centralised ombudsman-like office to oversee government purchases.

Donor agencies have suggested that CPTU be transformed to an authority

with greater autonomy and strengthened structure. Other recommendations
include increased focus on the demand side of reforms through participation
of citizens/ beneficiary groups/ stakeholders in the monitoring of procurement
process and outcomes; more use of Right to Information facilitating
information to the stakeholders such as policy makers, public procuring
organisations, bidding community, private sector, and the beneficiaries.

The existing law should be amended to allow creation of the proposed

authority and some legal amendments to the existing Public Procurement
Act.

The procurement practitioners will be accredi ted based on relevant practicing

experience, training, and professional/academic qualification. Detailed
requirements for each of these accreditations tier will need to be developed.
A Professional Certification Board under CPTU/Authority will issue
certificates, and CPTU/Authority may collaborate with international
organisations and/or universities to undertake such accreditation process.
Accredited practitioners can have unique identification numbers which will
allow tracking the practitioners' experience and performance in terms of
executing procurement functions. Procurement practitioners will progress
through the accreditation tiers by acquiring required experience, training and
professional/academic qualifications. Procurement training programme under
this project will be aligned with the accreditation programme.

The experience of World Bank says- Citizen Engagement (CE) at various

levels - both local and national -- will be enhanced and institutionalised
throughout the country. Bangladesh has taken the measure for CE. In this
regard, a 27-member Public-Private Stakeholders Committee (PPSC),
headed by the Minister of Planning, includes representatives from the
business community, private sector, bidding community, civil society, media
and academics.

But there is no visible action of PPSC and there have been no reforms in the
laws and practice of procurement.
At the moment, the government is actively working on a new law, namely
Bangladesh Public Procurement Authority Act, 2019. Under this new law, the
authority will control, supervise and oversee government procurement. The
proposed authority will consist of the Minister for Planning as the chairman;
Secretary of Implementation Monitoring and Evaluation Division, Ministry of
Planning; Vice Chairman and rep resentatives from Ministries of Finance,
Law, Environment, Telecommunication and four representatives of four major
buying departments of the government. The Executive Chairman, BPPA,
IMED will be the Secretary. Unfortunately there is no room for others in the
proposed Authority other than government officials.

A programme should be taken under this project to professionalise public

procurement officials with necessary recognition to practice procurement
through a four tier process- (1) Public Procurement Associate, (2) Public
Procurement Professional; (3) Advanced Public Procurement Professional;
and (4) Fellow Public Procurement Professional. Besides, for procurement
data analytics and IT business processes, there will be a specialised stream,
namely, Procurement Data Specialist.

The draft Public Procurement Authority Act should be amended to employ

certified procurement experts. PPSC should be empowered and be facilitated
to act according to its mandates. The purchase entity, review and appeal
authority should have representatives from different stakeholders and civil
society. It should have sufficient qualified and certified procurement experts.

M S Siddiqui is a legal economist

mssiddiqui2035@gmail.com