Ghana’s Public Procurement Act, 2003, (Act 663 amended) regulates single-source procurement of goods, works and services in Ghana. Single-source procurement refers to a situation where under certain exceptional circumstances the procurement entity deliberately procures goods, works, or services from a particular supplier, contractor, consultant or service provider even though other sources could meet the procurement request.

Examples of exceptional circumstances, among other things, may be due to urgency as a result of a catastrophic event, security concerns, or where goods, works or services are available only from a particular supplier, contractor, consultant or service provider. It could also be that a particular supplier, contractor or consultant has exclusive right over the goods, or services, and no reasonable alternative, or substitute exists. 

The act prescribes for a public procurement entity to utilise the single-source method only after the Public Procurement Authority (PPA) has granted approval for it to do so. Regulation 36 of Ghana’s Public Procurement Regulations (L.I.2466) requires that an application for a single-source by the procurement entity must provide appropriate justification for the method, the cost estimates, an assessment of the cost reasonableness of the procurement, and the applicable terms of the contract based on the standard tender document listed in the Sixth Schedule to Act 663. Regulation 36(3) of L.I.2466 makes provision for the PPA to respond to the application for single-source within twenty-eight (28) days after the receipt of the application.

This gives the PPA ample time to satisfy itself that the applications it received from the procurement entities for utilisation of the single-source procurement method have met the preconditions required by Act 663 before it grants them approval.

Single-source is a non-competitive procurement method and therefore does not require the procurement entity to invite the public to submit tenders for the procurement opportunity.

Act 663 (as amended) does not make specific provision for the retrospective approvalof single-source procurement. Retrospective approval relates to circumstances under which procurement entities utilise the single-source method for public procurement in Ghana before applying to the PPA for its ratification. It is a fact that conditions to be satisfied by a procurement entity before the PPA could ratify single-source procurement are not clearly stated in Act 663(amended).   

The PPA’s ratification of a single-source procurement that had already been utilised by a procurement entity clearly constitutes a violation of Act 663. Unfortunately, this matter has never appeared before the courts of law for judicial resolution.

Tanzania’s Public Procurement Regulations, 2013, requires that in a situation where an application for approval for emergency procurement is impracticable the accounting officer must proceed with the emergency procurement in accordance with the chosen method. The officer must, however, immediately notify the Government Procurement Services Agency and the Public Procurement Regulatory Authority (PPRA) of such procurement. Regulation 63(6) provides for the accounting officer to submit an application for retrospective approval to the Government Paymaster General within seven working days from the date of award. Regulation 63(7) requires the officer to state the circumstances which precluded him from complying with the normal procurement processes in the application for the retrospective approval.

The Paymaster General is expected to seek advice from the PPRA upon receipt of the application. The PPRA, in collaboration with the Government Assets Management Department, and the department for technical audit of the Ministry responsible for finance or, where necessary, with any other competent body, is to advise the Paymaster General on the appropriate action to be taken. Regulation 63(10) prescribes that where the Paymaster General acts upon the advice given, the Paymaster will not be held personally liable for his actions.

We believe Tanzania’s regulation of retrospective approval for emergency procurement allows for flexibility for the procurement by the accounting officer and at same time reduces the risks for abuse of the procurement process. This is due to the requirement for the procurement to be immediately brought to the attention of the Government Procurement Services and the PPRA by the accounting officer.

The need for the accounting officer to submit an application to the Paymaster General for the retrospective procurement acts as a further check to control abuse of the procurement process.  This is extracted from the book, “An Appraisal of Ghana’s Public Procurement Regime”, written by Michael Kofi Quashie, a procurement expert and Professor George K.N. Vukor-Quarshie, a law Professor. The book is to be launched on Thursday, March 14, 2024 at 2pm at the British Council in Accra.        

This book is the first of its kind to be published on Public Procurement Practice and the Law in Ghana.  It has been lauded by two experts in the fields of Public Procurement and Law respectively as, providing “significant insights into public procurement practice … an authoritative handbook to all stakeholders and to reinforce our knowledge and understanding of the Ghana Public Procurement Law.”