Emergency Procurement under PPA 2011

MR.Chilongani
For that case ammendments need to be done from the Act it self otherwise the applicability will not be easy'

M.Chilongani wrote:Mr Rutaihwa

your comments has been noted with concern.

you commented for a need to effect corrections in the regulations to make it read as follows: -

Section.65(3) ...... ‘upon satisfying the provisions of subsection 2, the Procuring Entity shall NOTIFY the Government Procurement Services Agency [GPSA] ON proceeding with Emergency procurement'

My concern is that whenever there is contradiction between the Principal Legislation (the Act) and a subsidiary law (the Regulations), the provison of the Act (the principal legislation) shall prevail.

Thus if the Regulation is drafted contrary to the Act it will be of no use!!! because the provision of the Act shall prevail

Chilongani

Mr Rutaihwa

your comments has been noted with concern.

you commented for a need to effect corrections in the regulations to make it read as follows: -

Section.65(3) ...... ‘upon satisfying the provisions of subsection 2, the Procuring Entity shall NOTIFY the Government Procurement Services Agency [GPSA] ON proceeding with Emergency procurement'

My concern is that whenever there is contradiction between the Principal Legislation (the Act) and a subsidiary law (the Regulations), the provison of the Act (the principal legislation) shall prevail.

Thus if the Regulation is drafted contrary to the Act it will be of no use!!! because the provision of the Act shall prevail

Chilongani

May be The involvement GPSA arised from Section 50 (1)(b) of the New Act of 2011 which States that: by virture of the nature of the subject matter of the procurement, the need for it may arise on an urgent basis during a period of time.

BUT This Section.65(3) needs more clarification in regulations, But it can be clear if it states that ‘upon satisfying the provisions of subsection 2, the Procuring Entity shall NOTIFY the Government Procurement Services Agency [GPSA] ON proceeding with Emergency procurement'

M.Chilongani wrote:RSM

let us assume the prescirbed procedure is OK

the Basic question is still not answered - The GPSA involvement.

remember
'Section.65(3) states that ‘upon satisfying the provisions of subsection 2, the Procuring Entity shall seek the approval of the Government Procurement Services Agency [GPSA] (2) before proceeding on with Emergency procurement'

Why and how GPSA? how this falls under GPSA whose primary function is deal with CUIS? are the said emeregancies projected to be under CUIS?

or it was an old adage of confusing the process aimed at discouraging it thus making it difficult if not imposible?

May be it was a typing error to be deleted by yet aonther coming bill?

Michael

RSM

let us assume the prescirbed procedure is OK

the Basic question is still not answered - The GPSA involvement.

remember
'Section.65(3) states that ‘upon satisfying the provisions of subsection 2, the Procuring Entity shall seek the approval of the Government Procurement Services Agency [GPSA] (2) before proceeding on with Emergency procurement'

Why and how GPSA? how this falls under GPSA whose primary function is deal with CUIS? are the said emeregancies projected to be under CUIS?

or it was an old adage of confusing the process aimed at discouraging it thus making it difficult if not imposible?

May be it was a typing error to be deleted by yet aonther coming bill?

Michael

Rutaihwa Wrote

Will this meet the intended predetermined Emergency?
This mean creation of onother chain in procurement rather than intended predetermined shorternig the procurement cycle.

I do not think so because the evaluation, approval by tender board is done within the organisation. As I said everybody in the organisation is aware of the emergency nature will therefore make sure that everythin is done as quick as possible.

Even under emergency, there has to be a process of selecting a service provider. You real do not want to create a sitatution where someone determines that there is an emergency and comes already with a service provider to do the assignment. If you allow this you will be doomed.

Will this meet the intended predetermined Emergency?
This mean creation of onother chain in procurement rather than intended predetermined shorternig the procurement cycle.

RSM wrote:CHilongani Wrote

The involvement of the Tender Board once the AO has determined a procurement to be ‘Emergency’ also needs further scrutiny. Will the Board be working on AO direct directives? If Tendering procedures with application of the said waivers results into non responsive tender, will the tender be re-advertized with wider participation? Will this meet the intended predetermined Emergency?

I only want to comment for the time being on the section of your contribution which I have quoted above.

We need to distinguish an emergency situation and the procurement process to select a service provider who will rescue that emergency situation.

1. The accounting officer will determine if there is an emergency situation - and remember that he does not work in a vacuum- the emergency situation is in the organisation - and therefore presumably every member of management, some of whom are members of Tender Board, are aware of the situation.
   
   
2. Once determination is made of urgency situation, procurement process will start - and because of the urgency nature, Section 65(6) has allowed a waiver of procurement limits, methods, tender processing periods and advertisement. However evaluation and approval by tender board has not been waived. Simple- whichever method of procurement you use you must evaluate the tender to establish if the proposed provider has the capacity and capability to carry out the assignement - and the tender board has the obligation to check that indeed the proposed provider according to the evaluation has the capacity and capabity to carry out the assignment.
   
   
3. The provision of approval of TB in 2 above is to remove a situation whereby the Accounting Officer, on his own decides to pick a provider to carry out the assignment

CHilongani Wrote

The involvement of the Tender Board once the AO has determined a procurement to be ‘Emergency’ also needs further scrutiny. Will the Board be working on AO direct directives? If Tendering procedures with application of the said waivers results into non responsive tender, will the tender be re-advertized with wider participation? Will this meet the intended predetermined Emergency?

I only want to comment for the time being on the section of your contribution which I have quoted above.

We need to distinguish an emergency situation and the procurement process to select a service provider who will rescue that emergency situation.

1. The accounting officer will determine if there is an emergency situation - and remember that he does not work in a vacuum- the emergency situation is in the organisation - and therefore presumably every member of management, some of whom are members of Tender Board, are aware of the situation.
   
   
2. Once determination is made of urgency situation, procurement process will start - and because of the urgency nature, Section 65(6) has allowed a waiver of procurement limits, methods, tender processing periods and advertisement. However evaluation and approval by tender board has not been waived. Simple- whichever method of procurement you use you must evaluate the tender to establish if the proposed provider has the capacity and capability to carry out the assignement - and the tender board has the obligation to check that indeed the proposed provider according to the evaluation has the capacity and capabity to carry out the assignment.
   
   
3. The provision of approval of TB in 2 above is to remove a situation whereby the Accounting Officer, on his own decides to pick a provider to carry out the assignment

Hi professionals

This section empowers the Accounting Officer(1) to undertake emergency procurement upon determining that such procurement is in the interest of the public as prescribed under regulation 65(1).

Having gone through this article i thought Mr. RJM has wrongly cross referenced the provisions of the Act. However, after perusing the referred Section 65 in the New Act i noticed that it is true that under Section 65(3) PE will now be required to seek for the approval by the Government Procurement Services Agency [GPSA] before proceeding on with Emeregency procurement.

The above referred subsection states as follows: -
Section.65(3) ‘upon satisfying the provisions of subsection 2, the Procuring Entity shall seek the approval of the Government Procurement Services Agency [GPSA] (2) before proceeding on with Emergency procurement.

Moreover, Section 65 (6) further introduces the Tender Board(3 )as a necessary approving authority under emergency procurement and as follows: -
‘Where the procuring meets the requirement of subsection (1), the conditions relating to procurement limits, methods, tender processing periods and advertisement may be waived except that conditions relating to tender evaluation and obtaining approval of the Tender Board shall not be waived’.

The above mentioned three authorities are given a window to process the “Emergency Procurement but pursuant to section 65(7 & ‘The Paymaster General4 will be required to Grant the retrospective approval upon being so advised by the Authority (PPRA)5 and Government Asset Management Department 6 and let us assume the Technical Audit7 of the Ministry responsible is not involved.

In light of the above, Emergency Procurement under the new Act shall involve the approval of three key approving authorities namely: -
1. The accounting Officer, (upon determining the said public interest)
2. Government Procurement Services Agency (introduced by the new Act for reasons open for this debate and Section 50 mentions only Common use items)
3. the Tender Board,(for waiver of some conditions as prescribed above)

and the Retrospective approval shall be granted by the Pay Master General upon obtaining advice from other three Authorities such as (PPRA), Government Asset Management Department or Technical Audit7
Let us assume that the Regulation will provide detailed guidelines of the above Authorities shall execute their functions effectively and efficiently to avoid though duties overlap seems to be unavoidable.

The introduction of GPSA in Emergency procurement even complicates the matter. It is understood that GPSA deals with Common use Items as prescribed under Section 50. I don’t think the underlying assumption is that such items will fall under this category.

The involvement of the Tender Board once the AO has determined a procurement to be ‘Emergency’ also needs further scrutiny. Will the Board be working on AO direct directives? If Tendering procedures with application of the said waivers results into non responsive tender, will the tender be re-advertized with wider participation? Will this meet the intended predetermined Emergency?

Forwarded for further discussions

Michael Chilongani