Re: EMERGENCY PROCUREMENT.

mauka Fri Jul 16, 2010 8:49 pm

RSM
My general concerns are based on the definition of emergency as provided by the proposed provisions and the normal requirements and procedures for receiving goods or services. The Regulation127 of the GN No.97, 2005 essentially requires every delivery of goods and/or services to be controlled by Inspection and Receiving committee and this committee should be appointed by Accounting Officer. However this committee is not “permanent” in terms of the members that constitute it. As the result, the accounting officer is required to form Receiving committee as and when the needs arise.

Now, lets us consider the time it takes to appoint the committee’s members, the members to get the necessary approvals as required by Rg127 (a)/97/2005 and consider the time for the committee to convene for inspection and receiving the goods and/or services. It is basically a long time to the extent that it may affect or put the life of people at the stake, supposing the emergency requirement is for the sake of public health and safety.

Apart from that, let us consider the normal procedure for inspecting, receiving and issuing goods within PE itself. It is very long and cumbersome procedures, they don’t reflect with the proposed provisions. Thus way practitioners are complaining about inflexibility of the said Regulation because it the one that support long and cumbersome procedures.

**RJM** Mon Jul 12, 2010 9:12 pm

Mauka wrote,

But what about the normal requirement as required by Regulation 126 and 127 of GN No.97 of 2005. I think this also should be modified in order to respond to the emergency procurement or it should be also waived in order to expedite the delivery of goods and services to the demander because practitioners are complaining that this is another obstacle in expedition of goods and services to the demander.

Mauka, I think what you are suggesting will comprise quality. How do you control quality if you do not have instrument such as Inspection and Acceptance Committees? Could you elaborate how the regulations you are referring are obstacle by giving typical cases?

mauka Mon Jul 12, 2010 8:47 pm

RSM
In general, I can say the proposed provisions sound great, but I have two things to present about emergency procurement and the proposed provisions. Basically. We need to consider the issue of competition even in emergency procurement. As we know, competition is the only weapon to the PEs’s prescriptions for lowering price and achieve performance program. Therefore, adequate price should be achieved by allowing competition even in emergency procurement in order to achieve the best value for money. But the proposed provisions are silent about that.

Apart from that, I do agree with the last proposed provision, it provides that
“the conditions relating to procurement limits, methods, tender processing periods and advertisement shall be waived except that conditions relating to tender evaluation and obtaining approval of the tender board may not be waived."

But what about the normal requirement as required by Regulation 126 and 127 of GN No.97 of 2005. I think this also should be modified in order to respond to the emergency procurement or it should be also waived in order to expedite the delivery of goods and services to the demander because practitioners are complaining that this is another obstacle in expedition of goods and services to the demander.

**RSM** Mon Jul 05, 2010 12:21 pm

Mauka,

According to the proposed ammendments to the Public Procurement Act, I think it has taken care of the interesting concepts you are raising, to quote you

"From what i know in normal operation, there are two phases of a Response to an Emergency, firstly The Event Response Phase; this is the initial response immediately after an event occurred. Secondly, the Recovery phase,this is normally the time period that lasts for 72 hours after the event has happened.

Now, the question is that “Is PPA, 2004 flexible to initiate an emergency purchase for the time period that lasts for 72 hours after the event has happened in order to recover the requirement of the emergency?"

The proposed provisions in the ammendment of the current Act should be able to take care of those situations. Here are the proposals to cater for emergency situations:

“emergency procurement” means procurement of goods, works or services essentially to meet an emergency situation which cannot be done through normal procurement process;

According to the proposed new Public Procurement ACT

"emergency procurement shall meet one of the following criteria: (a) compelling urgency that creates threat to life, health, welfare or safety of the public by reason of major natural disaster, epidemic, riot, fire or such other reasons as may be determined by the accounting officer; (b) emergency situation that generates an immediate need for goods, works or services that, if done through normal procurement process, the Government or the organisation would be injured; (c) situation whereby, without the urgent procurement, the continued functioning of the Government or organisation would suffer irreparable loss, the preservation or protection of irreplaceable public property, or the health or safety of public will be threatened."

According to the Act where the procurement meets the above requirements,

"the conditions relating to procurement limits, methods, tender processing periods and advertisement shall be waived except that conditions relating to tender evaluation and obtaining approval of the tender board may not be waived."

Mauka, what is your opinion on this?

mauka Mon Jun 21, 2010 2:12 am

RSM, before I come up with a real scenario to justify my doubt, let us agree or disagree on this first.

“ Bona-fide emergency purchases are understandable when they are done to protect the public health of citizens or when immediate repair is necessary to prevent further damage to public and/or private property”(spo, 2008)

My doubt about flexibility of PPA, 2004 and its attendant Regulation to deal with emergency procurement is obvious. From what i know in normal operation, there are two phases of a Response to an Emergency, firstly The Event Response Phase; this is the initial response immediately after an event occurred. Secondly, the Recovery phase,this is normally the time period that lasts for 72 hours after the event has happened.

Now, the question is that “Is PPA, 2004 flexible to initiate an emergency purchase for the time period that lasts for 72 hours after the event has happened in order to recover the requirement of the emergency?

**RSM** Fri Jun 18, 2010 11:55 am

Mauka

You are raising an important issue.

Lets first ask ourselves how to you come up with an Annual Procurement Plan - it is derived from the approved budget of the organisation and it attendant action plan. Therefore a well prepared Procurement Plan is expected to include all procurable items as derived from the approved budget.

With this clarification, can you give situations where an item to be procured may not be included in the APP?

mauka Fri Jun 18, 2010 1:21 am

RJM
I do appreciate your clarification, but there is perception that PPA, 2004 and it attendant regulation of 2005 was enacted to be stringent and not flexible when it comes to the procurement that is not in Annual Procurement Plan (APP) and need to be procured on emergency basis.

So, how to deal with such situation especially for the procurement of the goods, works, and services that are not available in APP?

**RJM** Thu Jun 17, 2010 4:34 pm

An emergency is an occurrence of a serious and urgent nature that demands immediate action. An emergency procurement may be made when an emergency condition arises and the need cannot be met through normal procurement procedures. It must be as a result of a situation that was unforeseen or unanticipated. In other words, an Emergency Procurement is a good, service, or construction essential to meet an emergency situations such as; a threat to life, public health, welfare, or safety by reason of major natural disaster, epidemic, riot, fire, or such other reasons. However, it is very difficult to justify an emergency procurement if the situation is resultant of poor planning, overlooked requirements, inaccurate of usage history data or incorrect/lack of forecasting.

According to our procurement legislations, R42/97/2005 answers your second question;

(1) If an accounting officer finds that it is in the public interest that goods or works, the value of which exceeds his or her authority, ought to be procured as a matter of urgency, the Accounting Officer shall:-

(a) evaluate the need for such urgent procurement and decide which procurement method shall be followed in order to guarantee economy and efficiency, with due regard to circumstances of urgency and without regard to his limit of authority;

(b) procure the goods or works in accordance with the method of procurement selected; and

(c) immediately thereafter, present the unauthorised procurement to the Paymaster General, Treasury for retrospective approval.

(2) Officers or accounting officer or of chief executive officers or tender boards which make procurements in excess of the amounts allowed by these Regulations may be held personally liable if the expenditure is proved subsequently to have been unnecessary or extravagant, or was occasioned by the authority’s lack of foresight in not procuring at the right time, and he may be held liable to make the difference between the actual cost of the goods or works and what their costs would have been through the appropriate channels.
(3) Tender boards shall not grant retrospective approval for procurement, but they must be prepared to give advice to accounting officers or the Treasury, if called upon to do so.

(4) The Authority in collaboration with the Stock Verification Department and the Technical Audit Unit of the Ministry of Finance shall advise the Paymaster General on the appropriate action to take.

(5) An award of a contract made by an Accounting Officer beyond its authority and not approved in retrospect shall nevertheless be valid and the Accounting Officer who approved it will be responsible for the payment of the price(s) involved.

From the citation above, it is the responsibility of the Accounting Officer to handle an emergency procurement. Furthermore, it can be observed that the Emergency Procurements are not intended to serve as a “fix it” for poor management or to correct situations that need immediate action due to lack of attention by the PEs.

If you see yourself writing one or two pages justifying an emergency situation, I doubt if that is an emergency.

The real King Wed Jun 16, 2010 5:41 pm

What is emergency procurement?who is required to handle emergency procurement in PEs.

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