BLACKLISTING FIRMS - PPRA'S ROLE

Dear All.

At last PPRA has indicated in their recently improved website that ‘the list of blacklisted firms’ is coming soon though there is still an error in quoting Blacklisting under Regulation 57 of GN 98!!! It is our expectations that the word soon shall assume its lingual meaning of ‘in a little while’ or almost immediately.

The good thing is that the matter has been taken as challenge of which I think the Authority is to look for the way forward.

Mr RSM, I still maintain the position that Pursuant to section 57 (1) of the PPA/2004, the PPRA is mandated to blacklist and Bar a ‘supplier, contractor or Consultant for a specified time from participating in public procurement proceeding and shall notify all PEs on such actions’ and that Section 57(2) further extends the powers of PPRA to blacklist firms ‘that have been blacklisted by a foreign country, international organization or other foreign institutions on grounds of fraud or corruption or on other ground S.57(2)b. Under section 57 (1) PPRA is not empowered to perform merely mediocre functions prescribed under section 57(2)b.

One can further examine Clause 5 of the 7th schedule that contains memorandum for anti bribery policy/code of conduct and compliance program under which there is typical provision that prescribes ‘ if the successful tenderer fails to comply with its no bribery commitment, significant sanctions will apply including: -
iv). Debarment by the Government of the united Republic of Tanzania from tendering for further public contracts for a period of ten years and as the government may deem appropriate.

To my opinion the Government upon enactment of the PPA, entrusted the Authority with such functions of which pursuant to Section 7(1) (q)/PPA/2004 administer and enforce compliance with all the provisions of the Act.

PPRA’s final report on Assessment of Country’s Procurement System issued on September, 2007, PPRA confirmed that a public register for blacklisted Physical and Legal Persons have not yet been established leading to low achieved scores under CPAR update 2006. However, under Annual Performance Evaluation Report for the financial year 2008/2009 the picture of the shortfall is not much depicted and Blacklisting is not mentioned among PPRA’s Anti corruption strategy! The misuse of section 72 is what PPRA is against in the aforementioned report as per objective 6 priority 3 item 6.3 that stated ‘it is PPRA’s strategy to ‘fight aggressively against blacklisting of procurement complainant by PEs’.

Pursuant to Section 57(2), as an extension of its powers, PPRA is responsible for listing and declaring blacklisted firms blacklisted by a foreign country, international organization or other foreign institutions. The Authority should not give the websites for PEs to make further reference. It MUST make a public register of such firms.

On January 14th 2009, the World Bank announced debarment of 7 firms including China State Construction Engineering Corporation, China Road and Bridge Corporation and China Geo-Engineering Corporations. The firms have various construction works in Tanzania. Pursuant to Sections 57 (2)a (ii) the firms are subject to being blacklisted by PPRA for an additional period of 10 years but PPRA has never made such a declaration. No wonder that is why the CRB was quoted by the East African News paper saying that ‘it had taken no action against the blacklisted firms because locally they had not acted against the laws of the country or gone against PPRA regulations! If PPRA could have issued a public register then such misconception could have been avoided.

To my opinion, the powers of PEs blacklisting firms as prescribed under section 72 do not overrule the power of PPRA entrusted under section 57. PEs are given powers to reject tender on grounds of inducement or corrupt practices pursuant to 73 (7) and as prescribed under S73 ( shall notify the CEO of the Authority who to my view is responsible (after being satisfied) for blacklist the firm as per S57.

Chilongani + GadielCM

We take up the challenge.

However, if you look at Section 57 of the Act PPRA currently, on its own, can only blacklist firms blacklisted outside the country. The actual power to blacklist for firms working within the country is given to PEs under Section 72.

Any more comments?

Chilongani, Big up for the good topic.
I think PPRA have to do more on this area so as the regulation said to become purpotive to the procurement practioners. Now the issue is on the hand of the Authority.

Hi Professionals.
Pursuant to section 57 (1) of the PPA/2004, the PPRA is mandated to blacklist and Bar a ‘supplier, contractor or Consultant for a specified time from participating in public procurement proceeding and shall notify all PEs on such actions’. Thus PPRA is required to publicize a list of blacklisted firms so as to alert the PEs not to effect procurement from such firms as so prohibited under section 57(4).

The intention of this topic is to invite professionals to critically examine the effectiveness of PPRA in exercising its powers in the context of provisions made under section 57 PPA 2004 and whether such provisions provide sufficient coverage.

To my opinion, more is still demanded from PPRA in playing its role in this area. In an effort to find as to whether PPRA has ever blacklisted any firms, I visited PPRA website under a menu named ‘blacklisted firms’. One could expect to find a list of firms that PPRA has blacklisted but in the menu there is a replica of PPA sections quoting a wrong regulation 57 of GN 98 instead of section 57 of PPA 2004 and there is no any firm listed as having been blacklisted by PPRA rather one is further referred to visit a website that is not provided (possibly they meant to refer to World Bank website in which debarred firms have been listed).

PPRA is mandated under section 57(1) (using its own initiatives) to blacklist firms. However, this section should have further prescribed on the modality of how such powers shall be exercised or such procedures should have been provided in the regulations. The regulations (ref R10 (2g)/GN 97 and R11 (6g)/GN 98) only mention blacklisting under ineligibility. To my opinion the section and regulations should further be enriched to cater for the same.

The power of PPRA to blacklisting firms is further extended under Section 57(2) to include further blacklisting of firms ‘that have been blacklisted by a foreign country, international organization or other foreign institutions on grounds of fraud or corruption or on other ground as per subsection 57(2)b. This section provides an additional area of coverage and does not substitute the role of PPRA provided under section 57(1) as mentioned above.

If PPRA has never blacklisted any firms on grounds that there is no such a single firm in Tanzania or Tanzania has never been a victim of corruption by foreign firms (a scenario which is subject to further discussions) then a rebuttable presumption of Tanzania being a corruption free zone may be overruled. However, if PPRA exercise its powers only through Subsection 57(2) then it can never blacklist any firm on its own initiative.

Submitted for discussion