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Int. J. Procurement Management, Vol. 12, No. 5, 2019 493
Copyright © 2019 Inderscience Enterprises Ltd.
Gaps in public procurement records management
Jemima Antwiwaa Ottou*
Business School,
Ghana Institute of Management and Public Administration (GIMPA),
P.O. Box AH 50, Achimota, Accra, Ghana
Email: jemaot@hotmail.com
*Corresponding author
Bernard Kofi Baiden and Gabriel Nani
Department of Building Technology,
Kwame Nkrumah University of Science and Technology,
Private Mail Bag, Kumasi, Ghana
Email: bkb.knust@gmail.com
Email: gabrielnaniresearch@gmail.com
Abstract: The study determined gaps in the records management of the
competitive bidding process in public works procurement in Ghana. Best
practices based on the Public Procurement Act 663 and Act 914 which are in
line with ISO 15489-1 standards were adopted as a benchmark and compared
with existing practices. A multiple case study strategy was used to compare the
results of literature synthesis on procurement records management with the
existing situation in three selected public entities to establish a trend. Four main
gaps were identified, namely, fragmentation of files; different department
keeping the fragmented files; unavailability of certain required records; and
difference between process file name and number in comparison with the
process name and number in procurement plans. These gaps have reduced
process transparency and accountability and have downplayed the integrity of
procurement processes fostering corruption.
Keywords: accountability; competitive bidding; corruption; public entities;
public procurement; records management; transparency.
Reference to this paper should be made as follows: Ottou, J.A., Baiden, B.K.
and Nani, G. (2019) ‘Gaps in public procurement records management’,
Int. J. Procurement Management, Vol. 12, No. 5, pp.493–517.
Biographical notes: Jemima Antwiwaa Ottou holds a Doctorate in
Construction Management. She is an Adjunct Lecturer at the Department of
Construction Technology and Management, Kwame Nkrumah University of
Science and Technology, Ghana and the Business School, Ghana Institute of
Management and Public Administration. Her research focuses on construction
procurement management and Six Sigma. She has experience in teaching and
supervision in contract administration, procurement, and project management at
both the undergraduate and post graduate level. She has managed several
internationally funded government construction projects and a member of
Ghana Institution of Surveyors.
Bernard Kofi Baiden is an Associate Professor of Project Delivery Performance
and the Head at the Department of Construction Technology and Management
at the Kwame Nkrumah University of Science and Technology, Ghana. His
494 J.A. Ottou et al.
research and supervision are focused in construction/project management,
contract administration innovations, project delivery performance, building and
construction materials. He has teaching experience in construction technology
and management-based courses at both undergraduate and postgraduate levels.
He has managed several large projects in many sectors of the industry.
Gabriel Nani is a Senior Lecturer in the Department of Construction
Technology and Management (Building Technology Department) of the
Kwame Nkrumah University of Science and Technology, Kumasi. He holds a
Doctorate degree in Building Technology specialising in quantity surveying
and procurement. He is a fellow of the Ghana Institution of Surveyors and a
member of the Royal Institution of Surveyors.
1 Introduction
Public procurement has been identified as the most vulnerable government activity to
corruption (Osei-Tutu et al., 2010). Hence, the need to enhance the integrity of the entire
procurement cycle by ensuring process transparency and accountability (Asamoah,
2014). Transparency in public procurement processes is expected to control corruption in
procurement (Balaeva and Yakovlev, 2017; Atiga and Azanlerigu, 2017). For instance, in
Russia, the transparency of the procurement process is ensured to combat corruption
(Balaeva and Yakovlev, 2017). Also, in Chad (Dough et al., 2014) and Ghana (Ottou
et al., 2018) transparency and accountability have been identified as significant
performance indicators of the procurement process which when achieved enhances the
integrity of the process. Transparency and accountability are ascertained through the
review of procurement records as procurement requires active interaction supported by
record keeping between the parties involved (Heikka and Mustak, 2017). Hence, proper
record keeping and management of procurement proceedings in accordance with
international standards such as ISO 15489-1 (ISO, 2016) and accepted best practices is
required.
Despite this need, several developing countries have experienced challenges in public
procurement records management, which have influenced the transparency and
accountability of their procurement processes. These countries include Uganda, Tanzania,
Kenya (Lusuli and Rotich, 2014), and Ghana (2011). This therefore confirms the
prevalence of poor record management in public procurement in Sub-Saharan Africa.
Consequently, transparency and accountability in public procurement is greatly hindered
in most developing countries.
1.1 Problem
Corruption in public procurement is still on the increase and is an established problem
especially in Sub-Saharan Africa. The prevalence and magnitude of corruption is
estimated to be up to 70% of public procurement contracts resulting in the inflation of
project cost by about 20–30% (Osei-Tutu et al., 2014; Atiga and Azanlerigu, 2017). In
view of this, the public procurement authority (PPA) has implemented several measures
to ensure public entities keep accurate and proper records on procurement proceedings.
These legislative measures are enshrined in the Public Procurement Act (Act 663), 2003
Gaps in public procurement records management 495
and the Public Procurement Amendment Act (Act 914), 2016 to ensure transparency and
accountability. Public procurement assessment exercise conducted on public entities by
PPA from 2007 to 2009 revealed that, a significant number of public entities keep
sketchy and fragmented records on their procurement proceedings (Ghana, 2011). This
confirms the challenges in achieving transparency and accountability of procurement
activities of Ghana’s public entities. Atiga and Azanlerigu (2017) bluntly posit that,
transparency and accountability have not been met in Ghanaian public procurement. They
based their argument on the consistent blatant and wilful violations of procurement
processes and procedures noted in the Auditor General’s report from 2004 to 2013. Even
though PPA in collaboration with the public records and archive administration of Ghana
developed a procurement record keeping manual for public entities, there is no evidence
of its implementation by the entities. The public record keeping manual developed was
based on the guidelines in ISO 15489-1 (ISO, 2016).
Consequently, the gaps in procurement records keeping and management by public
entities in Ghana were researched and presented in this paper. The conclusions and
recommendations of the research in this paper shall create awareness of sound
procurement records management in accordance with ISO 15489-1(2016). It is the view
of the authors that the conclusions, recommendations and the associated awareness
created will result in improved transparency and accountability leading to reduction in
corruption. The objectives achieved by the research in this paper include:
a identifying the gaps in competitive bidding records management
b establishing a relevant technique for managing public competitive bidding records.
2 Literature review – public procurement record management
All over the world good record keeping is seen as a means to foster transparency and
accountability and hence reduce corruption to a large extent. Records are documents
created or received and maintained as evidence by an entity in pursuance of legal
obligations or in the transaction of business (ISO, 2016). They can be books, papers,
maps, photographs, machine readable materials, or other documentary materials,
regardless of the physical form or characteristics that are created or received by an entity.
Records management is a field of management responsible for the efficient and
systematic control of the creation, maintenance, use and disposition of records
(ISO, 2016). This includes processes for capturing and maintaining evidence of and
information about business activities and transactions in the form of records (ISO, 2016).
It is a legal requirement for public entities to keep proper records in order to keep
institutional memory and have documentary backing for decisions taken by the entity.
Entities also keep records to prove their ability to function effectively and to give a
proper account on their actions (Asamoah, 2014). In order to keep proper records, it is
important for an entity to adopt prescribed record management processes based on
standards for international best practices such as ISO 15489-1 (ISO, 2016) within the
confines of the field of work. Procurement is one of such fields that need urgent attention
in record keeping.
According to Mahmood (2010) procurement dates far back between 2400 and
2800 BC. Evidence of this is seen on a red clay tablet in Syria with an order for 50 jars of
fragrant smooth oil for 600 small weights of grain. This suggests that, records on
496 J.A. Ottou et al.
procurement proceedings were properly kept and dates as far back as when procurement
began. Public procurement records keeping is said to be a precondition for transparency
and accountability (Asamoah, 2014; Kenya, 2008). Transparency and accountability are
significant performance indicators of procurement processes (Dough et al., 2014; Dough,
2015; Ghana, 2013; Ottou et al., 2018). Improper and ineffective documentation of
procurement records can lead to litigation, suspicion, corruption, and imprisonment
(Ghana, 2011).
Public entities who practice good procurement management view record management
as important. This is because, dysfunctional record management reduces the ability of the
public procurement process to achieve transparency and accountability creating room for
corruption and eventually leading to loss of state funds (Lusuli and Rotich, 2014). Hence,
the Kenyan public procurement oversight authority admits that sound record management
is an important way through which public entities ensure transparency and accountability
in their public procurement process (Kenya, 2008). It therefore follows that, improved
procurement record keeping practices will guarantee that procurement transactions are
conducted in an orderly, efficient, and accountable manner. This eventually reduces the
vulnerability of procuring entities to legal issues or even financial losses and promote
efficiency of procurement processes.
Most countries have specific procurement acts that regulate their public procurement
processes. For instance, Ghana’s public procurement processes are carried out within the
confines of (Act 663), 2003 and (Act 914), 2016 with the PPA assuming an oversight
responsibility of all public procurements. Despite these structures, there is evidence that,
corruption in procurement is still on the increase (Balaeva and Yakovlev, 2017;
Osei-Tutu et al., 2014; Atiga and Azanlerigu, 2017). It has been argued that poor public
procurement record management fosters corruption (Ghana, 2011; Lusuli and Rotich,
2014). For instance, poor public procurement record management, which most often
provides a fertile ground for corruption and collusion and hence the loss of public funds,
exists in Ghana (2011). This is because, Lusuli and Rotich (2014) established that corrupt
practices and lack of accountability are due to poor procurement record keeping systems.
It is obvious that there are benefits of good record keeping.
2.1 Benefits of public procurement record keeping
The importance of proper procurement record keeping is not farfetched as procurement
requires active interaction between parties involved (Heikka and Mustak, 2017). This is
because, human memory is too short lived and documentary evidence is more credible
than word of mouth. Generally, proper record keeping and management provides a better
platform for public entities to avail themselves for effective verification and reviews by
the state institutions assigned to do so as clearly stated in Section 28(6) of the (Act 663),
2003. It is a mandatory requirement for public entities to keep procurement records as
indicated in Section 28(1) of the (Act 663), 2003. Hence, public entities are expected to
keep records of their procurement proceedings even if they do not envisage any other
benefits apart from those related to abiding by the law.
However, there are other several benefits for keeping procurement records.
ISO (2016) outlines 14 benefits of record keeping. These benefits are compared to the
benefits specific to procurement records outlined by the PPA (Ghana, 2011). Table 1
presents the comparison. From Table 1 it can be seen that the nine benefits outlined by
PPA (Ghana, 2011) can be related to only 7 out of the 14 benefits outlined by
Gaps in public procurement records management 497
ISO (2016). Other authors also outline benefits of keeping procurement records as
creation and maintenance of accurate and reliable information; easy accessibility to
information; and availability of authentic reliable basis to fight corruption (Asamoah,
2014; Kenya, 2008). These benefits together with the ones outlined by (Act 663), 2003
and PPA (Ghana, 2011) when compared to the ones outlined by ISO (2016) show that all
the benefits outlined by ISO (2016) are possible benefits for proper management of
procurement records.
Table 1 Benefits of record management in relation to benefits of procurement records
Item Benefits in ISO 15489-1 (ISO, 2016) Benefits By PPA (Ghana, 2011)
1 Improved transparency and accountability.
2 Effective policy formation.
3 Informed decision-making. Provides the documentary basis for
decision making in the entity.
Aids in determining loyal, efficient and
dedicated contractors, suppliers, and
consultants.
4 Management of business risks. Helps to improve the operation and
management of the entity.
5 Continuity in the event of disaster.
6 Protection of rights and obligations of
organisations and individuals.
7 Protection and support in litigation. Assists in addressing complaints by
contractors, suppliers, and consultants.
8 Compliance with legislation and
regulations.
Provides the required information for
auditors to effectively carry out their
duties.
9 Improved ability to demonstrate corporate
responsibility, including meeting
sustainability goals.
10 Reduction of costs through greater
business efficiency.
Promotes simplicity, ease, and cost
effectiveness in the operations of the
entity’s procurement unit.
Facilitates the smooth process flow of
procurement processes in the public
entities.
11 Protection of intellectual property.
12 Evidence-based research and development
activities.
Forms the documentary basis for
procurement assessment.
13 Formation of business, personal, and
cultural identity.
14 Protection of corporate, personal, and
collective memory.
Provides a reference point to facilitate
communication with contractors,
suppliers, and consultants
498 J.A. Ottou et al.
Despite the possibility of achieving these numerous benefits, many public entities do not
keep the required records (Ghana, 2011). This is due to some challenges they meet in
their attempt to keep proper records.
2.2 Challenges of public procurement record keeping
There are several challenges in public procurement record keeping. The challenges of
procurement record keeping include: non-compliance to procurement law; fragmentation
of procurement files; maintenance of informal procurement records; and the perception
that procurement records management is not a responsibility of all (Lusuli and Rotich,
2014). Some other challenges are lack of management support which leads to lack of
record management training for procurement staff and failure to enforce proper record
management principles. These challenges are in line with the challenges identified by
PPA (Ghana, 2011).
The PPA (Ghana, 2011) has outlined certain factors that prevent public entities from
keeping records on procurement proceedings in a required manner. Public entities find it
difficult to keep proper records on procurement proceedings when there are no qualified
professional officers to co-ordinate the procurement process. This is further worsened
when the entity does not have appropriate procurement guidelines for departments to
follow leading to different departments within the entity handling different aspects of
procurement. The result is procurement team fragmentation. Despite these challenges,
there is a pressing need to ensure that they keep proper and accurate records as failure to
do so may lead to several consequences.
2.3 Consequences of poor record keeping on public procurement proceedings
The Kenyan public procurement oversight authority (Kenya, 2008) outlines some of the
consequences of not keeping accurate records on procurement proceeding in order to
draw attention to the need to keep records on public procurement proceedings despite any
challenges faced. The consequences identified include: poor basis for taking decisions;
inability to prove fraud; poor auditing as records are not meaningful; lack of transparency
in government actions; poor protection of citizen rights; inability of citizens to make an
informed contribution to the governance process; impaired memory of the procuring
entity.
From above, it can be deduced that, there is an urgent need for proper procurement
record management despite the challenges public entities encounter in their attempt to
keep proper procurement records.
3 Research method
Literature was reviewed to establish the ideal technique for proper management of
procurement records based on ISO 15489-1 (ISO, 2016). This covered the kind of records
and how they should be kept to establish a benchmark. Then, a case study strategy was
used to establish the existing trend in managing works procurement records and relating
it to a specific method of procurement. This is because an empirical investigation within
a real life context is required to establish the trend in procurement records management
(Bryman, 2008; Saunders et al., 2009, 2016; Yin, 2009, 2014). To improve upon
Gaps in public procurement records management 499
reliability of the findings, a multiple case study strategy comprising three cases was
adopted for the research. The three cases were selected based on following criteria:
a Entity must be a public entity ranked in the excellent category of the maturity table
of 2014 assessment exercise by PPA, Ghana. This is because the research sort to
identify the gaps in public procurement record management and hence the need for
the use of public entities. Also, to make a firm conclusion on the existence of gaps in
procurement record management, entities already exhibiting the best practices were
considered. Poor performing entities are more likely to have gaps in their record
management which cannot be generalised.
b Entity must have handled construction projects using the competitive bidding
procurement method. The reason is that, the research focused on identifying the gaps
in records management of competitive bidding process of construction projects.
c Entity must demonstrate extensive use of (Act 663), 2003 and (Act 914), 2016. The
reason is that, this research seeks to identify gaps in record management of the
competitive bidding process within a Ghanaian context where the acts binding this
process are (Act 663), 2003 and (Act 914), 2016. Also, these acts conform to the
international standard practices prescribed in ISO 10845-1 (ISO, 2016).
Having selected three cases, the documentary evidence on competitive bidding process
from 2013 to 2015 in each case were reviewed to ascertain the empirical technique
(kind of records and how they had been kept) adopted by each entity. The gaps in record
management of the competitive bidding process were identified by comparing the
empirical record management technique to the established technique as shown in Table 5.
Conclusions on the gaps in procurement documentation were drawn based on the
difference between the theoretical findings (benchmark) and the empirical findings.
To ensure external validity, analytical generalisation (Yin, 2014) was adopted through
two techniques namely, use of theory in each case and replication logic in the three cases.
In respect of the use of theory in each case, findings in individual cases were compared to
findings from literature and their convergence strengthened the external validity in each
of the cases (Yin, 2009, 2014). Further, under replication logic, the successful use of the
same methodology in all the three cases enhanced the external validity (Yin, 2009, 2014).
Hence, a case study protocol and cross-case comparisons were planned and maintained.
This also ensured the reliability as advised by Yin (2014). Thus, each case was treated as
unique to ensure it retained its contextual individuality. The procedures for data
collection and analysis were well structured and standardised to ensure a robust
cross-case comparison (Bryman, 2008; Yin, 2009, 2014).
4 Results and discussion
This section presents the results from the review of literature on the best practice in
procurement record management and compares it to the real life situation of the three
selected cases to identify the gaps. Hence, it is presented in two sections, the results on
the ideal situation from literature and the empirical results.
500 J.A. Ottou et al.
4.1 Results and discussion on ideal procurement record management based on
literature (benchmark)
This section established the best practice in procurement record management expected of
public entities in Ghana by discussing the required records to be kept and how they
should be kept. It is important to note that these requirements are in line with the
guidelines for records management set in ISO 15489-1 (ISO, 2016).
4.1.1 Required records under the Public Procurement Act (Act 663), 2003 and
the Public Procurement (Amendment) Act (Act 914), 2016
The Public Procurement Act, (Act 663), 2003 Section 27, requires that public entities
provide documentary evidence of their procurement proceedings in compliance with the
Evidence Decree, 1975 (N.R.C.D. 323). Section 28(1) of the (Act 663), 2003 outlines the
information on procurement proceedings public entities are required to keep. This
includes:
1 information on the description of goods, works, or services, qualification criteria, and
basis for price
2 basis for deciding on a particular procurement method to use
3 all correspondence between the procurement entity and contractors, suppliers, and
consultant in relation to a procurement process
4 outcome of the procurement process and the justification of this outcome.
Having identified the type of information public entities are required under the (Act 663),
2003 in relation to their procurement proceedings, it is necessary to note that the
Public Procurement Amendment Act (Act 914), 2016 has made some insertions after
Clause 28 of the (Act 663), 2003 Section 28A which provides the conditions under which
a procurement proceeding can be cancelled. It is obvious that public entities are required
to keep records of this cancellation as it can be classified under ‘outcome of the
procurement process and the justification of this outcome’.
The PPA (Ghana, 2011) provides a summary of documents public procuring entities
are required to keep based on the requirements of the (Act 663), 2003. This summary
provides the documents within which the required records in the (Act 663), 2003 would
be found. They are:
1 requisition to procure and authorisation
2 invitation to bid which could be an advertisement or a letter depending on the
method
3 bid document and records on the opening procedure
4 bid evaluation proceedings and report
5 approval of evaluation report
6 records on negotiation proceedings if any
7 letter of notification of award and signed contract
8 letter of notification of process outcome to unsuccessful bidders
Gaps in public procurement records management 501
9 correspondence on contract management
10 performance evaluation report on contractor or supplier
11 any other correspondence.
It can be seen from above that the list from PPA (Ghana, 2011) does not include
documents that provide information on procurement planning. However, Section 21 of
(Act 663), 2003 requires public entities to prepare their annual procurement plans and
quarterly updates. The only evidence of proving that entities meet this requirement is to
keep records of their original and updated procurement plans. Table 2 presents a
summary of information and documents on the competitive bidding process that public
entities in Ghana are required to keep.
Table 2 Required information and documents on competitive tendering
Item Description Source
Required
information
1 Information on the description of goods, works, or
services; qualification criteria; and basis for price.
(Act 663), 2003
(Act 914), 2016
2 Basis for deciding on a particular procurement method
to use.
3 All correspondence between the procurement entity and
contractors, suppliers, and consultants in relation to a
procurement process.
4 Outcome of the procurement process and the
justification of this outcome.
Required
records
1 Procurement plan. (Act 663), 2003
(Act 914), 2016
Ghana (2011)
2 Quarterly updates of procurement plan.
3 Requisition to procure and authorisation.
4 Invitation to tender which could be an advertisement or
a letter depending on the method.
5 Tender document and records on the opening procedure.
6 Tender evaluation proceedings and report.
7 Approval of evaluation report.
8 Records on negotiation proceedings if any.
9 Letter of notification of award and signed contract.
10 Letter of notification of process outcome to unsuccessful
bidders.
11 Correspondence on contract management.
12 Performance evaluation report on contractor or supplier.
13 Any other correspondence.
Having identified the required records on public procurement proceedings to be kept
which is in line with the requirements in ISO 15489-1 (ISO, 2016), attention is given to
how the entities are required to keep the records.
502 J.A. Ottou et al.
4.1.2 How public procurement records should be kept
Generally, the norm in record keeping has in recent times moved from the keeping of
only hard documents to include electronic copies (ISO, 2016; Kenya, 2008). ISO 15489-1
(ISO, 2016) requires that records management policies procedures and practices lead to
authoritative records in terms of authenticity, reliability, integrity, and usability. Further,
ISO 15489-1 (ISO, 2016) lays more emphasis on the principles for the creation, capture,
and management of records by providing guidance on how records should be managed.
In line with this requirement, the PPA (Ghana, 2011) describes how records on
procurement both electronic and hard should be kept.
The authority states that, procurement records should be organised and filed
according to the contact package, type of procurement, and the method adopted. The PPA
(Ghana, 2011) also advocates that records should be kept in a way to enhance easy
identification and retrieval. This is in line with classification criteria outlined by
ISO 15489-1 (ISO, 2016) in terms of record classification, naming, indexing, and
capturing. Thus, it is recommended that all procurement processes should bear an
identification code which is based on the type of procurement; method of procurement;
name of project; year of procurement; and a unique sequence number. This identification
code should be specific to individual procurement processes and should be the means of
process identification right from the procurement plan. Similarly, Asamoah (2014) states
that it is necessary for procurement units in public entities to maintain records on
procurement activities according to procurement package. This therefore requires that the
records of each procurement proceedings should be securely maintained in an individual
file and in a chronological sequence. This file should provide information from planning
through procurement to closure of the project which is in line with telling the whole story
as required by ISO 15489-1 (ISO, 2016).
Table 3 Required filing technique for procurement records
Description Basis for filing
Filing criteria Contract package
Type of procurement
Method of procurement
Filing scope One process one file
Records from procurement planning to closure of project
File identification Procurement type
Procurement method
Name of project
Year of procurement
Unique sequence number
Filing type Soft (electronic)
Hard
Filing sequence Chronological order
Electronic record keeping should be based on a policy that integrates the entities legal
framework; all stakeholders; relevant aspects of electronic records; entities management
Gaps in public procurement records management 503
procedures and technologies; and long-term storage and access need (ISO, 2001a; Kenya,
2008). In Ghana (2011), the PPA encourages public entities to consider e-procurement as
an option with the advantage of ease in keeping bulky documents. The PPA outlines the
benefits of electronic record keeping as documents are stored as long as required with the
possibility of making additional copies; reduction in overhead cost by eliminating
paper-based processes; and reduction in storage space and its associated management
costs. For these reasons, the PPA encourages public entities to submit the annual
procurement plans and quarterly updates via electronic and hard means. Table 3 presents
a summary how procurement records should be filed in terms of filing criteria, scope,
identification, type, and sequence.
The (Act 663), 2003 provides several procurement methods. The records required to
be kept depends on the procurement method an entity decides to adopt. Attention is given
to the records to be kept under the competitive bidding method as this is the focus of this
research.
4.1.3 Records to be kept under the competitive bidding method of procurement
in relation to works
In order to determine the type of procurement records to be kept under a specific
procurement method, it is important to note the various activities and process steps within
that method and combine them with documentation required by the act that controls the
proceedings of the method. ISO 10845-1 (ISO, 2010) outlines procurement processes in
six process steps namely, establishing what to be procured, deciding on the procurement
strategy to use, soliciting bids, evaluating bids, awarding contracts, and administering
contracts. The procurement process for construction follows the same pattern as the first
two stages are usually referred to as the design stage. The output of the design stage
establishes what to procure and the procurement strategy to be employed which forms the
basis for preparing the bid documents and the kind of bidding process to employ. The
bidding process covers the preparation and soliciting bids, evaluating bids, and awarding
contracts. After which the contract is administered. Hence bidding can be seen as the
process used to carrying out procurement.
The bidding process has been selected as the focus of this research because it serves
as the pivot of the construction procurement process as shown in Figure 1. The output of
the design stage serves as an input for the bidding stage whereas the output for the
bidding stage becomes the input of production stage.
For the purpose of this study, bidding process spans from decision to commence
procurement; preparation of bid documents; advertisement; sale of documents; receipt of
bids; opening of bids; evaluation of bids; approval for award; and award of contract. This
is because, records on these stages would tell the story from the beginning to the end of
the competitive bidding process as the (Act 663), 2003 Section 28 requires entities to also
provide the basis for procurement decisions. This process refines the client’s needs and
transforms these needs into workable and measurable data. It also determines the
contractor; the procedure for construction; and the method of contract administration to
be adopted for a particular project. Hence, performance improvement in the bidding stage
creates a high possibility that the client will be satisfied and contract administration
challenges will be minimal.
504 J.A. Ottou et al.
Figure 1 Bidding stage as a pivot of construction procurement process
Design stage Bidd ing stage Construction production stage
1. Feasibility
2. S cheme desi gn
3. Preliminary
design
4. Detailed design
5. Bills of
quantities
1. Preparation of bid d ocumen ts
2. Soliciting for bids
3. Receipt of bids
4. Opening of bids
5. Eva luati on of bids
6. Appr oval of evaluation report
7. Awar d of contract
1. Contract
administration
2. Completion and
handing over
3. Project review
However, in Section 21(1) of (Act 663), 2003 public procuring entities are required to
prepare a procurement plan that indicates the contract packages; estimated cost for each
package; the procurement method; the process steps; and timelines. Hence, this plan can
also be a source of information and record. Also in Section 21(3), the procuring entities
are required to quarterly update their procurement plans and submit them to the relevant
bodies. The procurement plan is usually designed to provide information on individual
processes including the timelines. Thus, it is logical for updates on procurement plans to
also include the updates on timelines for various activities described in the plan.
Therefore, it can be deduced that the ideal technique for procurement records keeping is
to keep records from the planning of the procurement process, through the proceedings of
the procurement process to the completion of the process. Thus, there will be records on
everything before, during and after procuring a particular project.
In order to determine the required records to be kept under the competitive bidding
process, there is a need determine the required information; the record to be kept; and the
various activities within the competitive bidding process. Table 4 shows the key activities
under the competitive bidding process and the required information according to
(Act 663), 2003 and (Act 914), 2016. It also shows the sources of the required
information and records that need to be kept on a particular bidding process.
Table 4 Required records for competitive tendering process
Required information Record to be kept Activity
Basis for deciding on a particular
procurement method to use.
1
Procurement plan
Decision to
commence
procurement
2
Quarterly updates of procurement
plan
3
Requisition letter to procure
4
Authorisation letter to procure
5
Estimated cost and bills of quantities
Information on the description of
goods, works, or services;
qualification criteria; and basis for
price.
1
Tender documents (invitation to
tender, instruction to tender,
conditions of contract, form of
tender, specifications, bills of
quantities, drawings, and other
documents
Tender
document
preparation
Gaps in public procurement records management 505
Table 4 Required records for competitive tendering process (continued)
Required information Record to be kept Activity
All correspondence between the
procurement entity and contractors,
suppliers and consultants in relation
to a procurement process
(solicitation).
1 Advertisement Tender
invitation
All correspondence between the
procurement entity and contractors,
suppliers, and consultants in relation
to a procurement process (acquisition
of tender documents).
1 Letter requesting to purchase tender
document
Inspection and
purchase of
tender
documents
2 Records form for prospective
bidders
All correspondence between the
procurement entity and contractors,
suppliers and consultant in relation to
a procurement process (pre-bid
processes).
1 Request for clarifications, if any Period between
tender invitation
and opening
2 Addenda, if any
3 Extension of bid opening date if any
Outcome of the procurement process
and the justification of this outcome.
1 Register at the tender submission Tender opening
2 Attendance sheet at the opening
3 Tender opening record sheet
4 Minutes for the opening
Outcome of the procurement process
and the justification of this outcome.
1 Evaluation report Bid evaluation
2 Notification to correct arithmetical
errors
3 Response from bidders
4 Minutes of evaluation
5 Letter constituting the evaluation
panel
Outcome of the procurement process
and the justification of this outcome.
1 Letter forwarding the evaluation
report to the entity tender committee
Evaluation
approval
2 Minutes of entity tender committee
meeting held to discuss the
evaluation report
3 Letter communicating the decision
of entity tender committee (to award
or to forward the evaluation report
to the respective review board) on
the evaluation report
4 Correspondence between the
approval board and the procuring
entity for clarification
5 Letter on the decision from the
approval board
Outcome of the procurement process
and the justification of this outcome.
1 Letter of acceptance Award
2 Notification of process outcome to
unsuccessful bidders
506 J.A. Ottou et al.
It can be deduced from above that, the required records on competitive bidding
proceedings to be kept are all records from the procurement plan through the step by step
activities to the award of contract.
4.1.4 Ideal records management technique for competitive bidding
The ideal practice is to keep records of specific processes in a chronological order and in
one file for easy identification and retrieval (ISO, 2001b). This file should bear a file
number similar to the package number given to the specific process. Hence, when a file
on a specific procurement process is picked, it should contain all the required
documentary information on that process and be able to tell the story without the
assistance of any person. This file then becomes the original file. The original file should
be kept and managed by one department preferably the department in charge of the
process from its commencement to completion and its day to day activities. Also, copies
of the file may be kept by other departments playing certain roles in the competitive
bidding process to serve as backup. Soft records must also be kept to complement the
hard files. Each process should have a folder where all soft records on the process will be
kept. Table 5 presents proposed ideal record management technique for competitive
bidding.
Table 5 Proposed ideal record management technique for competitive tendering
Filling requirement Proposed ideal records management technique
Process file Filing criteria should be based on contract package; type of
procurement; and method of procurement.
Filing scope should cover records from procurement planning to
award of contract with one process for one file.
File identification should be based on procurement type; procurement
method; name of project; year of procurement; and unique sequence
number.
Filing type should be soft (electronic) and hard.
Filing sequence should be in a chronological order.
Required records to
be kept in process file
See Table 4
Location of original
file
Department responsible for process from commencement to
completion and day to day activities.
Management of
original file
Department responsible for process from commencement to
completion and day to day activities.
4.2 Results and discussion on existing records management based on empirical
evidence
In this section, results obtained after reviewing the competitive bidding records of three
selected public entities in Ghana are presented. The required records on competitive
bidding kept by public entities established in Table 5 formed the basis of the checklist.
The documentary evidence of the three selected cases were reviewed to establish the
availability of records.
Gaps in public procurement records management 507
Table 6 presents a comparison between the established required competitive bidding
record management techniques from literature review and the empirical techniques
employed in the various cases. This was used to determine the gaps in procurement
documentation.
Table 6 Results on empirical record management technique in case 1, 2, and 3
Aspects of record
management
Required record management
techniques/record
Empirical performance
Case 1 Case 2 Case 3
Requirement Process file Compliance
D L
See Table 5 Filing criteria No Yes No No
See Table 5 Filing scope No Yes No No
See Table 5 File identification No No No No
See Table 5 Filing type Yes٭ Yes Yes٭
Yes٭
See Table 5 Filing sequence Yes Yes Yes No
See Table 5 Location of original file No Yes No No
See Table 5 Management of original file No Yes No No
Decision to
commence
procurement
1 Procurement plan. Yes Yes Yes Yes
2 Quarterly updates of procurement
plan.
Yes٭ Yes Yes٭
Yes٭
3 Requisition letter to procure. Yes Yes Yes Yes
4 Authorisation letter to procure. Yes Yes Yes Yes
5 Estimated cost and bills of quantities. Yes Yes Yes Yes
Tender document
preparation
1 Tender documents (invitation to
tender, instruction to tender,
conditions of contract, form of tender,
specifications, bills of quantities,
drawings, and other documents).
Yes Yes Yes Yes
Tender invitation 1 Advertisement. Yes Yes Yes Yes
Inspection and
purchase of
tender
documents
1 Letter requesting to purchase tender
document.
Yes Yes Yes Yes
2 Record book for prospective bidders. Yes Yes Yes Yes
Period between
tender invitation
and opening
1 Request for clarifications if any. Yes Yes Yes Yes
2 Addenda if any. Yes Yes Yes Yes
3 Extension of bid opening date if any. Yes Yes Yes Yes
Tender opening 1 Register at the tender submission. Yes Yes Yes Yes
2 Attendance sheet at the opening. Yes Yes Yes Yes
3 Tender opening record sheet. Yes Yes Yes Yes
4 Minutes for the opening. Yes Yes Yes Yes
Note: ٭Documentation partly available but not complete.
508 J.A. Ottou et al.
Table 6 Results on empirical record management technique in case 1, 2, and 3 (continued)
Aspects of record
management
Required record management
techniques/record
Empirical performance
Case 1
Case 2
Case 3
Requirement Process file Compliance
D L
Bid evaluation
1
Letter constituting the evaluation
panel.
Yes
Yes
Yes
Yes
2
Notification to correction arithmetical
errors.
Yes
Yes
Yes
Yes
3
Response from bidders.
Yes
Yes
Yes
Yes
4
Minutes of evaluation.
No
No
No
No
5
Evaluation report.
Yes
Yes
Yes
Yes
Evaluation
approval
1
Letter forwarding the evaluation report
to the entity tender committee.
Yes
Yes
Yes
Yes
2
Minutes of entity tender committee
meeting held to discuss the evaluation
report.
Yes
Yes
Yes
Yes
3
Letter communicating the decision of
entity tender committee on the
evaluation report.
Yes
Yes
Yes
Yes
4
Correspondence between the approval
board and the procuring entity for
clarification.
Yes
Yes
Yes
Yes
5
Letter on the decision from the
approval board.
Yes
Yes
Yes
Yes
Award
1
Letter of acceptance.
Yes
Yes
Yes
Yes
2
Notification of process outcome to
unsuccessful bidders.
No
No
No
No
Note: ٭Documentation partly available but not complete.
4.2.1 Competitive bidding records management in case 1
The review of documents showed that records on competitive bidding process were kept
in a chronological order. However, there was proof that different departments kept
various sections of the records. The review also revealed that documents were not kept on
the basis of specific processes. For instance, the procurement department had files for
procurement plans, advertisements, and concurrences form review boards as separate
files. Hence, all correspondence from review boards were kept in a specific file for all
processes carried out within a specific period. Similarly, the engineering department for
instance, kept records on updates on procurement plans, evaluation proceedings, and
award letters. Thus, as shown in Table 6, all the documents from procurement planning to
award were available except minutes on bid evaluation and notification of process
outcome to unsuccessful bidders. Therefore, there were no files designated as original
files telling the story from process commencement to completion at a specific location.
These files were managed by different departments.
Gaps in public procurement records management 509
Files were identified by the project names. The file numbers even though they
indicated certain serial numbers and year, none adopted the established ideal criteria
presented in Table 5. Thus, the filing system used did not adopt a criteria based on
contract package; type of procurement; and method of procurement. The files were not
identified by procurement type; procurement method; name of project; year of
procurement; and unique sequence number. None of the competitive bidding processes
carried out between 2013 and 2015 had specific files for specific processes from planning
to award as required. Also, the periodic updating of procurement proceedings in terms of
recording the actual times processes took place were done but only kept in electronic
files. However, hardcopies on files were not available.
Hence, the gaps identified in this case are:
a Gaps in the process filing: Filing criteria; filing scope; and file identification.
b Gaps in documentation: no documents on minutes for evaluation of bids and
notification of process outcome to unsuccessful bidders. Also updates on process
timelines were not kept in hard form.
c Gaps in location of original file: no file telling the story of a particular competitive
bidding process from planning to award was seen at the department responsible for
process from commencement to completion and day to day activities.
d Gaps in management of file: different departments were managing different aspects
of the competitive bidding process.
4.2.2 Competitive bidding records management in case 2
The review of documents revealed that different departments handled projects within the
entity. There was a department that handled projects requiring foreign donor support
designated as ‘D’ in Table 6 and another handling the locally funded projects designated
as ‘L’ in same table. This accounts for the divergence in empirical findings in certain
section in Table 6.
The department handling the processes with foreign donor support were able to show
documentary records on the competitive bidding processes. They kept process based files
with all issues on specific processes chronologically arranged from planning to award.
Also, they kept records both hard and soft on updates of process step timelines including
progress reports on the competitive bidding processes for the period between 2013 and
2015. The original files were located and managed by the department responsible for the
competitive bidding process from commencement to completion and also for the day to
day activities. The documents not sited were, minutes on the evaluation of bids and
notification of process outcome to unsuccessful bidders. Also, even though the files had
some form of identification it was not based on procurement type; procurement method;
name of project; year of procurement; and unique sequence number.
On the other hand, the department handling processes for locally funded projects also
kept some records on the competitive bidding processes. Their records were seen on
separate files such as files for advertisement; files for procurement plans; files for award
letters; and files for contract administration. There were no specific files designated as
original files for the projects, telling the story from process commencement to
completion. Files were identified by project names and file numbers. However, file
numbers even though followed certain sequence, none adopted the established ideal
510 J.A. Ottou et al.
criteria presented in Table 5. Thus, the filing system used did not adopt a criteria based
on contract package; type of procurement; and method of procurement. Files were not
identified by procurement type; procurement method; name of project; year of
procurement; and unique sequence number. Some soft records were seen but they were
not up to date. The records on updates on actual process timelines were not kept hence,
the updates on procurements plans were understood as changes made in the plans and not
tracking the timely performance of processes. They also did not have evidence of the
minutes on evaluation reports and notification of process outcome to unsuccessful
bidders.
What accounted for the difference in record keeping culture between two departments
within the same entity was the source of funds for projects. Some projects were mainly
funded by international donors who required that certain conditions including proper
record management were met before funds were released. This compelled the staff to
cultivate proper record management culture. Other processes hardly had any international
donors and hence did not have to meet any requirements on how records should be
managed. Thus even though they had the ability to keep proper records, there was
motivation to do so.
The gaps identified in this case were in two categories, gaps in donor funded
projects (D) and gaps in locally funded projects (L). The gaps in the donor funded
projects (D) were:
a gaps in the process filing: filing criteria and file identification
b gaps in documentation: no documents on minutes for evaluation of bids and
notification of process outcome to unsuccessful bidders.
The gaps in locally funded projects (L) were:
a Gaps in the process filing: filing criteria; filing scope; and file identification.
b Gaps in documentation: no documents on minutes for evaluation of bids and
notification of process outcome to unsuccessful bidders. Also updates on process
timelines were not kept in hard form.
c Gaps in location of original file: no file telling the story of a particular competitive
bidding process from planning to award was sited at the department responsible for
process from commencement to completion and day to day activities.
d Gaps in management of file: different departments were managing different aspects
of the competitive bidding process.
4.2.3 Competitive bidding records management in case 3
The review of documents showed a similar trend as those in the first two cases. Here too,
sections of the processes steps were handled by different departments hence, the records
were kept as such. For instance, the procurement department kept records on procurement
plans whereas the engineering department kept records on concurrence from review
board by virtue of their role to respond to queries. Thus, different departments kept
different files on various process steps of a particular competitive bidding process. Also,
there were no files specifically designated as original files telling the story from process
commencement to completion at a specific location. The files were identified by project
Gaps in public procurement records management 511
names. The file numbers even though followed certain sequence, none adopted the
established ideal criteria discussed above. Thus, the filing system used did not adopt a
criteria based on contract package; type of procurement; and method of procurement. The
files were not identified by procurement type; procurement method; name of project; year
of procurement; and unique sequence number. This made the tracking of performance of
processes very cumbersome. Electronic files on various processes were available but did
not cover complete processes.
The updates on procurement plans were done but did not include the updates on
actual timelines as different departments handled sections of the competitive bidding
process steps. Thus, updates on timely performance on the entire process was not the
focus but rather achieving the milestones. Also, evidence of minutes on evaluation of
bids and notification of process outcome to unsuccessful bidders were not seen in any of
the files.
It can be seen that, none of the competitive bidding processes carried out between
2013 and 2015 had specific files for specific processes from planning to award as
required. Hence, the gaps identified in this case were:
a Gaps in the process filing: filing criteria; filing scope; and file identification.
b Gaps in documentation: no documents on minutes for evaluation of bids and
notification of process outcome to unsuccessful bidders. Also, updates on process
timelines were not kept in hard form.
c Gaps in location of original file: no file telling the story of a particular competitive
bidding process from planning to award was sited at the department responsible for
process from commencement to completion and day to day activities.
d Gaps in management of file: different departments were managing different aspects
of the competitive bidding process.
4.3 Gaps in procurement record management
The findings on gaps in competitive bidding process in Ghanaian public entities are
presented in Table 7.
Table 7 Identification of gaps in competitive tendering records management
Case Premise 1 Premise 2 Premise 3 Remarks
1
No
No
No
Existence of gaps
2D
No
No
Yes
Existence of gaps
2L
No
No
No
Existence of gaps
3
No
No
No
Existence of gaps
The premise for concluding that gaps do not exists in the record management of
competitive bidding process were that:
• premise 1: each competitive bidding process had an original file (hard and or soft)
with the file number and name the same as the package number and name in the
procurement plan
512 J.A. Ottou et al.
• premise 2: each file (hard and soft) contained all the records listed in Table 4 in a
chronological manner
• premise 3: the competitive bidding process file is kept at a designated location and
managed by a specific department preferably the department responsible for the
process as indicated in Table 5.
It can be seen from Table 7 that there are gaps in the records management of the
competitive bidding process for case 1, 2, and 3 as they did not meet all the criteria for
not having gaps. Comparing all the three cases, four main gaps in procurement
documentation were identified. These gaps are:
a fragmentation of files on competitive bidding process steps
b different departments keeping the fragmented files
c unavailability of certain required records such as updates on actual timelines for
process steps; minutes on evaluation of bids; and notification of process outcome to
unsuccessful bidders
d file name and number not corresponding to the process name and number in
procurement plan.
These gaps have to be addressed by ensuring that staff are trained and audited in record
management as required by ISO 15489-1 (ISO, 2016) to improve transparency and
accountability of competitive bidding process.
5 Conclusions
This research identified gaps in records management of competitive bidding processes in
works procurement by public entities in Ghana. This was done by comparing the best
practices prescribed in literature to actual procurement record management practices
recorded with the three case study organisations. This research has shown that, public
entities in Ghana do not strictly adhere to the guidelines prescribed in (Act 663), 2003;
(Act 914), 2016; and ISO 15489-1 (ISO, 2016) in relation to records keeping and
management in their competitive bidding processes.
The research concluded that, the prescribed approach for managing competitive
bidding records is by keeping individual files for specific processes where all the
documents listed in Table 4 on the process are arranged in a chronological order. The file
number and name should bear the process number and name used in the procurement
plan and must be managed by a specific department preferably the department carrying
out the process. This should be in soft and hard forms.
Comparing this prescribed approach for competitive bidding record management to
the existing approach, the study concluded that there are 4 main gaps in works
procurement record management by public entities in Ghana. These gaps were identified
as, fragmentation of files; different department keeping the fragmented files;
unavailability of certain required records; and difference between process file name and
number in comparison with the process name and number in procurement plans.
The study has revealed the existence of record management gaps in the competitive
bidding process in Ghana. It has also demonstrated the need to adopt proper procurement
Gaps in public procurement records management 513
record management in order to improve transparency and accountability in public works
procurement processes. Additionally, it revealed that there is a need for frantic steps to be
taken to bridge these gaps to facilitate transparency and accountability to aid in the fight
against corruption. This mirrors the situation in developing countries as poor record
management of public procurement processes has been established as a general
challenge.
5.1 Managerial implications
The gaps in procurement record management identified in this study makes it difficult for
public entities in Ghana to provide evidence-based proof that their competitive bidding
processes of public works procurement are transparent and accountable. The study
therefore recommends that, the required records management technique summarised in
Table 5 be adopted as the prescribed records management technique for competitive
bidding process of public work procurement by public entities in Ghana.
Also, to facilitate ease in tracking procurement proceedings and for auditing
purposes, it is recommended that public entities keep original process-based files in a
chronological manner. The file number and name should bear the process number and
name used in the procurement plan and must be kept and managed by a specific
department preferably the department carrying out the process. This should be in soft and
hard forms. Other departments playing specific roles in the procurement process may also
keep copies of the files to serve as back up.
It is expected that public entities who apply these recommendations would be in the
position to tell the complete story of various competitive bidding processes through the
files and not their staff. Hence, institutional memory would be intact even if staff are not
retained thus enhancing transparency and accountability.
5.2 Limitations and future scope
The results are limited to record keeping in the competitive bidding method of public
works procurement according to the requirements of ISO 15489-1 (ISO, 2016). Hence,
the findings on gaps cannot be generalised to cover entities that are not required to meet
this standard. Also, the findings on the existing specific gaps in the entities used for this
study are limited to the competitive bidding processes the entity handled between 2013
and 2015.
Future research will focus on the efficiency of empirical application of the
recommended record keeping and management techniques to address the identified gaps
in order to enhance transparency and accountability of competitive bidding process.
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Appendix
Table A1 Extracts from the Public Procurement Act (Act 663), 2003 used in the main text
Section Clause
21.(1)
Procurement plan
A procurement entity shall prepare a procurement plan to support its approved
programme and the plan shall indicate:
(a)
contract packages
(b)
estimated cost for each package
(c)
the procurement method
(d)
processing steps and time.
21.(3)
After budget approval and at quarterly intervals after that, each procurement entity
shall submit an update of the procurement plan to the tender committee.
27.
Documentary evidence in procurement proceedings
The documentary evidence required in procurement proceedings shall comply with
the Evidence Decree, 1975 (N.R.C.D. 323)
28. (1)
Record of procurement proceedings
A procurement entity shall maintain a record of the procurement proceedings
containing the following information:
(a)
a brief description of the goods, works, or services to be procured, or of the
procurement need for which the procurement entity invited proposals or offers
(b)
the names and address of suppliers and contractors that submitted tenders,
proposals, offers or quotations, and the name and address of the supplier or
contractor with whom the procurement contract is entered
(c)
information relating to qualifications, or lack of qualifications of suppliers or
contractors that submitted tenders, proposals, offers or quotations
(d)
the price or the basis for determining the price and a summary of the other
principal terms of conditions of each tender, proposal, offer or quotation and the
procurement contract if these are known to the procurement entity
(e)
a summary of the evaluation and comparison of tenders, proposals under
Section 69, offers and quotations including the application of any margin of
preference pursuant to Section 60
(f)
if the tenders, proposals, offers or quotations were rejected, a statement to that
effect and the grounds for rejection
(g)
if, in procurement proceedings involving methods of procurement other than
tendering, those proceedings did not result in a procurement contract, a statement
to that and the reasons
(h)
the information required under section 29, if a tender, proposal, offer or quotation
was rejected pursuant to that provision
(i)
a statement of the grounds and circumstances on which the procurement entity
relied to justify the selection of the method of procurement used
(j)
in the procurement of services by means of part VI, the statement required under
Section 71 of the grounds and circumstances on which the procurement entity
relied to justify the selection procedure used
516 J.A. Ottou et al.
Table A1 Extracts from the Public Procurement Act (Act 663), 2003 used in the main text
(continued)
Section Clause
28. (1)
(k)
in procurement proceedings involving direct invitation of proposals for services in
accordance with Section 63(3), a statement of the grounds and circumstances on
which the procurement entity relied to justify the direct invitation
(l)
in procurement proceedings in which the procurement entity, in accordance with
section 25(1), limits participation on the basis of nationality, a statement of the
grounds and circumstances relied upon by the procurement entity for the limitation
(m)
a summary of any request for clarification of prequalification or invitation
documents, the responses received as well as a summary of any modification made
to the documents
(n)
a record of any complaints received from suppliers, contractor, or consultants and
the responses received.
28(6)
Records and documents maintained by procurement entities on procurement shall be
made available for inspection by the public procurement board, an investigator
appointment by the board and the auditor-general upon request; and where donor
funds have been used for the procurement, donor officials shall also upon request to
the minister have access to relevant procurement files for purposes of verification and
review.
Table A2 Extracts from the Public Procurement (Amendment) Act (Act 914), 2016 used in the
main text
Section
Clause
12.
The principal enactment is amended by the insertion after Section 28 of a new section
28A.
Cancellation of procurement proceedings
28A.
(1)
A procurement entity may, for specific and fully justified reasons, cancel
procurement proceedings before the expiry of the deadline for the submission of
tenders, where:
(a)
the entity discovers an imperfection in the wording of the request for
submission of tenders, which could mislead tenderers
(b)
the procurement entity decides to carry out the work subject of the tender by
itself
(c)
there is a cut in the budget intended for performing the contract
(d)
no bid has been submitted
(e)
exceptional circumstances or a force majeure render normal performance of
the contract
(f)
the economic or technical data of the project has fundamentally changed.
(2)
The head of a procurement entity may, after the expiry of the deadline for the
submission of tenders, cancel a procurement proceeding where:
(a)
no tender has been submitted within the specified deadline
(b)
the tender procedure has been unsuccessful
(c)
it is established that the tender documents contain terms or technical
specifications that cannot be met by any of the tenders or that these
specifications lead exclusively to a specific economic operator
Gaps in public procurement records management 517
Table A2 Extracts from the Public Procurement (Amendment) Act (Act 914), 2016 used in the
main text (continued)
Section
Cancellation of procurement proceedings
28A.
(2)
(d)
the prices of the tenders that meet the terms and technical requirements of the
tender documents are unrealistic or appear to be the product of collusion
between tenderers, resulting in the circumvention of healthy competition
(e)
the circumstances under which the procurement procedure was announced
have changed to such an extent that the scope of the tender procedure is no
longer necessary
(f)
exceptional circumstances or forces majeure render normal performance of
the contract impossible
(g)
any other serious unforeseeable reason, which the procurement entity
considers justifiable, applies.
(3)
The head of a procurement entity shall, before cancellation a procurement
proceeding under subsection (2) have due regard to:
(a)
the time and resources expended by the interested tenderers, particularly in
the case of complex contracts with a complicated scope
(b)
the right of an interested party who has or had an interest in being awarded
the specification contract, and who has sustained or is likely to sustain a loss
as a result of the cancellation, to seek administrative review under this act or
to seek redress in court
(c)
general principles of good faith and transparency and public policy.
(4)
A procurement entity may cancel procurement proceedings after acceptance of a
successful tender if the tenderer whose submission has been accepted, fails to sign
the applicable contract as required for performance of the contract.
(5)
Subject to subsection (3), where a procurement proceeding is cancelled before the
contract is signed, a tenderer or interested party shall not be entitled to claim any
compensation from the procurement entity.
(6)
For the avoidance of doubt, a procurement entity shall not incur liability for
invoking this section and shall in no event be liable for any damages including,
damages for loss of profits in any way connected with the cancellation of a
tender.
(7)
The publication of a tender notice does not commit the procurement entity that
published the notice to implement the programme or project announced.
(8)
Subject to this section, where a tender proceeding divides tenders into lots,
individual lots may be cancelled.
(9)
The decision of a procurement entity to cancel the procurement and reasons for
that decision shall be included in the record of procurement proceedings and shall
be promptly communicated to any tenderer or consultant who presented a tender
or consultant who presented a tender or proposal.
(10)
A cancellation notice shall promptly after decision to cancel is made, be
published on the website of the procurement entity or of the authority.
(11)
After cancelling a procurement proceeding, the procurement entity may:
(a)
start a new tender proceeding
(b)
re-start the tender proceeding using the same reference as the original
invitation.
