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A Comparative Analysis of the Nigerian Public Procurement Act Against International Best Practice

Published online by Cambridge University Press:  24 November 2014

Sope Williams-Elegbe
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Abstract

Prior to 2007, Nigerian public procurement was not formally regulated, in the sense that there was no law governing procurement at the federal or state level. This changed with the enactment in 2007 of the Public Procurement Act. This act was passed on the recommendation of the World Bank, which had conducted a country procurement assessment report on Nigeria in 1999. This article seeks to determine whether the Public Procurement Act meets the requirements of international best practice. The article examines what may be regarded as international best practice in the public procurement context and analyses whether the Nigerian Public Procurement Act contains provisions which accord with this practice. It also considers what factors are limiting the adoption of international best practice in the Nigerian context.

Type
Research Article
Information
Journal of African Law , Volume 59 , Issue 1 , April 2015 , pp. 85 - 98
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Copyright
Copyright © SOAS, University of London 2014 

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References

1 See ISO 10845, which applies to construction procurement.

2 ISO 10845 lists the primary objectives of a procurement system as fairness, equity, transparency, competition and cost effectiveness.

3 Schooner, S “Desiderata: Objectives for a system of government contract law” (2002) 11 Public Procurement Law Review 104Google Scholar.

4 Arrowsmith, SThe Law of Public and Utilities Procurement (2nd ed, 2005, Sweet & Maxwell)Google Scholar, chap 3.9.

5 Ibid.

6 Allen, R “Integrity: Maintaining a level playing field” (2002) 2 Public Procurement Law Review 111Google Scholar.

7 Arrowsmith The Law of Public and Utilities Procurement, above at note 4 at 128.

8 Ibid.

9 Zhang, X “Supplier review as a mechanism for securing compliance with public procurement rules: A critical perspective” (2007) 16 Public Procurement Law Review 325Google Scholar.

10 Arrowsmith The Law of Public and Utilities Procurement, above at note 4 at 128.

11 Ibid.

12 Schooner “Desiderata”, above at note 3 at 104.

13 Id at 105.

14 Allen “Integrity”, above at note 6.

15 Schooner “Desiderata”, above at note 3 at 108.

16 Beviglia-Zampetti, A “The UNCITRAL Model law on Procurement of Goods, Construction, Services” in Hoekman, B and Mavroidis, P (eds) Law and Policy in Public Purchasing: The WTO Agreement on Government Procurement (1997, University of Michigan Press) 273Google Scholar.

17 Schooner “Desiderata”, above at note 3 at 107.

18 Ibid.

19 See generally Williams-Elegbe, SFighting Corruption in Public Procurement (2012, Hart Publishing)Google Scholar.

20 Schooner “Desiderata”, above at note 3 at 109.

21 See <www.bpp.gov.ng> (last accessed 11 September 2014).

22 Williams-Elegbe, S “The reform and regulation of public procurement in Nigeria” (2012) 41(2) Public Contract Law Journal 339Google Scholar at 342.

23 Arrowsmith The Law of Public and Utilities Procurement, above at note 4, chap 12.45.

24 PPA, sec 23(1).

25 Id, sec 33(3).

26 Id, sec 32(8).

27 Williams-Elegbe “The reform and regulation”, above at note 22 at 358.

28 PPA, sec 54(1).

29 Id, sec 54(2).

30 Id, sec 54(1)(a).

31 Id, sec 54(1)(b).

32 Id, sec 54(6).

33 Id, sec 54(7).

34 See BPP “Petitions in 2012” (on file with the author).

35 UNCITRAL Model Law on Public Procurement (2011), available at: <http://www.uncitral.org/uncitral/en/uncitral_texts/procurement_infrastructure/2011Model.html> (last accessed 15 October 2014).

36 PPA, sec 39.

37 Id, sec 40.

38 Id, sec 41.

39 See generally Williams-Elegbe “The reform and regulation”, above at note 22 at 341. See also US Department of State Bureau of Democracy, Human Rights and Labor “Country Report for Human Rights Practices in Nigeria 2013”, sec 4: “Corruption and lack of transparency in government”, available at: <http://www.state.gov/documents/organization/220358.pdf> (last accessed 15 October 2014). See also Osoba, S “Corruption in Nigeria: Historical perspectives” (1996) 69 Review of African Political Economy 371CrossRefGoogle Scholar.

40 In the follow-up to its country procurement assessment report on Nigeria in 1999, the World Bank reiterated its recommendation that politicians be removed from the procurement process. See World Bank “Nigeria: A fiscal agenda for change: Public expenditure management and financial accountability review” in Public Expenditure Management and Financial Accountability Review (vol I, 25 May 2007, World Bank) at 140.

41 E Ovuakporie “Ezekwesili kicks against Procurement Act amendment” (4 June 2013) Vanguard Online, available at: <http://www.vanguardngr.com/2013/06/ezekwesili-kicks-against-procurement-act-amendment/> (last accessed 15 October 2014).

42 See Auditor General's reports for the Federation of Nigeria, 2007, available at: <http://www.oaugf.gov.ng/Downloads/Report1.pdf> (last accessed 15 October 2014).

43 On Nigeria's budgeting problems, see World Bank “Nigeria: A fiscal agenda”, above at note 40 at 33–37.