Due ProcessWorks In Rivers – Nlerum

This is the concluding part of the interview with the Director-General of the Bureau on Public Procurement, Mr. Franklin Nlerum published last Friday.

What can you say about some current road construction works that have no drainages?

Any road construction design that does not have drainage did not come to the Bureau. The Azikiwe Road, no matter how beautiful it may be, did not come to the Bureau.  Same with the Elekahia- Rumuomasi Road and the Old Aba Road.  The law setting up BOPP empowered us to review and evaluate for fitness and purpose.  Each time we undertake a project in the state, we must ensure that it is fit for the purpose before certifying it. So if you know such roads that have no drainage, just let us know and we will pick them up. 

Is there any ministry that is exempted from this?

No ministry is exempted. If you use a contractual formula where you are not paying immediately then it is not subject to due process, it is a big fallacy.  It is a function of thinking that it is the state that is paying.  That was the excuse that was given why the Azikiwe Road project was not sent to the due process.  But the question is: will the state eventually pay or not?  We also heard that the road from The Tide to UST Roundabout has been awarded.  RSBOPP is not aware and is not a party to it and will never certify it.

What can the Bureau do in the circumstance?

 Sure, you know what we can do. The law says in section 14 sub-section 2  that before any expenditure from the state’s fund, even an account of a ministry where the money has been budgeted for by the state is made, there must be a certification of no objection issued by the Bureau. Fortunately, we have not issued and will not issue.  When they pay, then we will call them for questioning.  We will be watching because it is becoming rampant.

Is it not dangerous waiting until it happens?

No, it is not dangerous. It is the cardinal principal of the law that ignorance of the law is not an excuse. If a contractor goes into an understanding that will expose it that is his business.  But I do not mind the contractor suffering it if that will make the ministry or the procurement entity sit up because they cannot say they are not aware of what the law states. The little anybody can do is to seek  clarification if the law is not clear to them.

Does the Bureau have  the expertise to examine these problems?

Yes, we do. The resources available to the Bureau is not limited to its staff. It also empowers us to use consultants where necessary.  So, we have resources and none  of the engineers from the Ministry of Works will tell you that the query coming from the Bureau is technically inaccurate.

It does appear that the activities of the Bureau are centralised.  Are there plans to decentralise them?

Yes, we oversee the local government areas, but that does not mean that we have to set up offices in the local government areas.

Activities going on in the local government areas can be monitored from the office.   What matters is the mindset of the people.  The greater people of Rivers State are not appreciating because we have not engaged them sufficiently to appreciate that they are the first layer of monitoring, that is a source of information to us on any money spent. 

I hail from Obio/Akpor Local Government Area.  If the local government chairman is spending any money, it is my money he is spending and the people of Obio/Akpor should ask questions.  It is time  the people realised that it is their money, not one man’s money.  The roads that are being constructed are not for the Commissioner for Works but for the people.  Opening up offices in the 23 local government areas will just be unnecessary duplication.  I think our engagement now is to enforce the law.

How do you intend to enforce the law?

When the procurement law became an act on May 3, 2008, many of the commissioners were not in office. At the first retreat in Calabar, 2008, they were intimated of the law. So, if they choose not to obey it, it becomes a learning cost. A learning cost that is going to two years is enough for people to begin to show that they are learning. If you look at the law, part of my reluctance to actually accept the job is that there is so much power in it.

I think the teeth of the Bureau is sharper than that of shark because we have powers to order that a contract should be cancelled.  We have power to recommend punitive measures against defaulters including the removal of erring civil servants from office.

We try to show people the new order; you win them over so that they willingly do what is right. If after this, they still refuse, you now begin to use carrot and stick.

Who will be the next victim?

I will not tell you who will be the next victim so that I will not be pre-judging anybody. If you say that the Bureau has not bared its teeth, then you are in order because we have chosen not to bare our teeth, believing and hoping that people or procurement entities would appreciate and key into the system.   There are the mass media, the ordinary Rivers people, the professionals, the contractors. These are people we intend to engage with. Baring our teeth has not been our focus.  However, from February 18, 2010 the resolve to begin to bite became strengthened.

How do you cope with pressures from politicians?

I had earlier stated how a rural electrification project that is dear to the governor was cancelled because the consideration for recommending  the contractors was inconsistent with the law.

Recently, we also cancelled the recommendation for the building of seven injection sub stations because of non-adherence to due process. You cannot change the rule midway. The condition specifies that from the onset, the process must be followed through. So, if things like electric power which is so critical to the political class can be cancelled, I don’t know any other political pressure that can come. I am not saying that there wouldn’t be political pressure but I am saying that the channel where the pressure ought to come from is not coming. And it will not come.

Also, there are instances that contractors make very compelling cases to be paid mobilisation fees more than what the law provided for, but I have always turned down that request. Even when they have very strong cases and support, we don’t bend the rules because once you do that you lose the integrity that will sustain the entire process.

At a conference in Ethiopia, I told participants that I am very fortunate because between the Governor, we have a committee overseeing us. I think I am about one of the few people running an organisation where the House Committee over seeing you takes pride in what you are doing, encouraging you to do more instead of interfering in your job. The Governor has never forced us to do his bidding because he appointed us. In fact, there was an instance when many commissioners raised a point that the law gives the governor the discretion to take certain decisions without recourse to the Bureau. But when we explained the implication of that discretion, the governor backed out. Section 21 sub-section 4 of the Public Procurement Law states that the governor can award contract up to 30% of capital project in the year subject to supervision by the Bureau.

Are you saying that the staff, management and board of the Bureau are saints?

I will start with myself. If my board doesn’t trust me I will go. The moment I give them reasons not to trust me, I will go. Similarly any of the board members that cannot be trusted by reason of anything that might undermine the law will have to go. Then it follows that if any staff cannot be trusted that staff will go. There is no two ways about it. It is very simple. Some of us gave up higher pay to come to do this job.  On many occasions, I joke with my staff and tell them that this is a missionary enterprise, that is the Bureau is something of a ministry of reconciliation.  We want to reconcile the  elites of the state with the well being of the state because the problem of the state is not the ordinary people, it is the elites. So, when we tell people to do what is right, we are reconciling them; we re making them do what they are expected to do for  the benefit of the people and  the state.  So I would not say we are angels.  But I have vowed to deal with anything that is evil.

What do you do with the unspent funds?

There are two ways that unspent funds can arise. For instance, if the budget provides for N22 billion and after review by the Bureau, it costs N18 billion, the remaining N4 billion goes back to the treasury.  The reason is that each time we issue certificate to any procurement entity, we copy the commissioners in charge of budget and finance.  Now, if the money has been released to the ministry or the procurement entity, and there is a clear notification that what was approved and what was released to the ministry should be returned within seven days, we should be notified.  On the other hand, where there is unspent fund and budget is made either following non-compliance with the provisions of the law or other reasons, the procurement couldn’t happen, unspent funds go back to the treasury.

What happens if some procurement entities are your friends?

Actually, I am hard on my friends than those who are not because I believe that my friends should make me succeed.  Any friend that wants to take advantage of our friendship to make a request that is improper is only seeking the end of the friendship because we can’t continue to be friends. I don’t think that friendship should come into work.  The rules are very clear.   Give everybody a level playing field. So, whether you are a procurement entity, a friend or not, we expect that the right thing be done.

Have you ever prosecuted anyone for non compliance?

We don’t prosecute  as a general rule, rather, we refer cases to the relevant authority.  If we have information on where there is non compliance we take the necessary steps.

How far have you gone in changing the people’s mindset?

We are changing. I am  a lawyer and not an Engineer. But sometimes I just drive around to see road construction work, after which  I will send my observation in a text message  to the Works commissioner who will in turn reply me immediately. He is not replying because he is afraid of me. He realised that we are working together for the same purpose.  When people accept to do things in a particular way, it is not easy to change; change does not come over night, it is easy to destroy than to build.  To build is a tougher thing. If you don’t find resistance the way we are finding it, you will doubt if change is actually coming. When you see the level of resistance, you will know that change is there and knocking on everyone’s door.

I believe strongly that in another six months it will be a different story.  And the reason is simple.  As we begin to engage the general public and follow up the information we get, you will see that contractors will realize the need to do the right thing.

The development of any state is the job of every stakeholder.  A contractor may have friends and get a contract, but he and his friends do not own the state.  The state belongs to all of us. So, I believe in change because I am sure before now nobody will call on the commissioner, or head of procurement entity to ask any question.

Most ministries say your bureau delays due process. Has that changed?

The law required that every dealing we have with persons should be in writing.  Applications should be in writing.  If we call for a meeting, it is a follow up for clarification.  They are seeking for clarification before us. Right now there is a project that is in danger because the commissioner and permanent secretary came for a meeting and obviously assuming that the meeting was for the application. We have just written them, telling them that they did not write us any application. And it got bad when we cannot certify it.  So there are many of such claims.  We had a case last year when a particular permanent secretary piled application letters under his table and told his commissioner that they were with the Due Process office.  And the commissioner told the governor so.  I told the governor, No, come let me open all the drawers so that you can check.  Unfortunately when that permanent secretary was moved to another ministry and when another permanent secretary came, the first thing he saw was the bundle of applications.  Fortunate for us, the commissioner was quick to move to the governor and told him that the application was under the table of the permanent secretary.  And a number of permanent secretaries are playing this thing as a power game because the law said we should deal with them.  But the law didn’t say they should exclude their commissioners.  The same section 19, sub-section 5, says when they are through with the process, they should go to their commissioners.  But they don’t.  Some of them that we deal with usually keep their commissioners in the dark.  We now resolved that every communication with the permanent secretary be copied to the commissioner immediately.  And we encourage them that if they are coming for a right of reply meeting with a technical  team, they should come with their commissioners.  In some instances, we find out that some of the commissioners are so much at home with what is going on in the ministry that they cannot attend the meeting.

How do you unwind?

I do play football but since I came to Port Harcourt, I have not been able to do that. I used to go to gymn, but I have not been doing that lately because of this building stage. We are trying to get a lot of things right.  However, from time to time I go to watch movies.