08 Nov NIGERIA: PUBLIC PROCUREMENT 2019

1. Relevant Legislation

1.1        What is the relevant legislation and in outline what does each piece of legislation cover?

The Public Procurement Act, 2007 (the “PPA”) is the primary legislation which establishes the National Council on Public Procurement and the Bureau of Public Procurement (the “Bureau”) as the regulatory authorities responsible for the monitoring and oversight of public procurement in Nigeria.  It covers items such as:

a)     the objectives and functions of the Bureau;

b)     fundamental principles for procurements;

c)     principles and procedures for the organisation of procurements, such as the approving authority, procurement planning and implementation;

d)     procurement methods, procurement surveillance and review; and

e)     guidelines for the disposal of public property.

There are also subsidiary regulations, such as Public Procurement Regulations for Goods and Works Regulations, 2007 (“PPRGWR”) and the Public Procurement Regulations for Consultancy Services Regulations, 2007 (“PPRCSR”).

The PPRGWR was prepared for use by procuring entities and service providers participating in publicly financed contracts, and covers items such as:

a)     details of the institutional and regulatory framework for public procurement;

b)     eligibility criteria to bid for and execute contracts; and

c)     procedures for bid preparation, submission, opening, evaluation and award of contract.

The PPRCSR applies to all procurement of consulting services by all procuring entities – except where a waiver is first obtained under the Act – and covers items such as:

a)     eligibility criteria to bid for and execute contracts for the procurement of consulting services which exclude physical services; and

b)     organisation of procurement operations.

Finally, most states in Nigeria have their own public procurement legislation which regulates public procurement activities within the respective state.

1.2        What are the basic underlying principles of the regime (e.g. value for money, equal treatment, transparency) and are these principles relevant to the interpretation of the legislation?

The basic underlying principles of the regime are competition, transparency, efficiency and value for money.  Whist these principles form the core of the implementation of the PPA by the Bureau, they are are not defined or interpreted in detail.  However, they are relevant to the interpretation of the legislation.  For example, Section 24 of the PPA provides for open competitive bidding and transparency is equally ensured; an example is the bid opening process, as provided for in Section 30 of the PPA, which is made public and bids are opened in the presence of bidders, their representatives or interested members of the public to ensure transparency.

1.3        Are there special rules in relation to procurement in specific sectors or areas?

The PPA generally governs public procurement across all sectors; however, as listed in question 1.1 above, the PPRGWR and PPRCSR are area-specific.

The Bureau of Public Procurement and other participating entities are also regulated by certain guidelines such as the Public Procurement Manual (“PPM”), which contains in simplified details the provisions of the PPA.  Other special rules which are established in line with the PPA are the Code of Conduct for Public Officers Involved with Procurement, the Complaints Procedure under the Public Procurement Act, the Budget Implementation Process Handbook and a detailed list of approved thresholds for service-wide applications.

1.4        Are there other areas of national law, such as government transparency rules, that are relevant to public procurement?

The Fiscal Responsibility Act, 2007 provides for prudent management of the nation’s resources, ensures long-term macro-economic stability of the national economy, and secures greater accountability and transparency in fiscal operations, which aims to reduce significant corruption and irregularity within public procurement processes.

In the bid to fight official corruption and introduce transparency and accountability into the government procurement process, the Federal Government of Nigeria established an agency known as the Budget Monitoring and Price Intelligence Unit in 2003, to evaluate contracts and tenders, and to ensure strict compliance with civil service procedures. 

The Code of Conduct Bureau and Tribunal Act, 1991 gives the Code of Conduct Bureau the mandate to establish and maintain a high standard of public morality in the conduct of government business and to ensure that the actions of public officers conform to the highest standards of public morality and accountability.  The Economic Financial Crimes Commission and Independent Corrupt Practices Commission, backed up by their respective enabling laws, such as the Economic and Financial Crimes Commission Establishment Act, 2004, the Money Laundering Act 1995, the Money Laundering (Prohibition) Act, 2004 and the Corrupt Practices and other Related Offences Act, 2000, are government transparency enforcement institutions charged with the responsibility of enforcing laws that relate to money laundering and associated offences, as well as ensuring transparency and accountability in the public procurement process.

1.5        How does the regime relate to supra-national regimes including the GPA, EU rules and other international agreements? 

Although Nigeria has been a member of the WTO since 1 January 1995, it is not a signatory to the WTO Agreement on Government Procurement and has not acceded to it.  The EU and some members of the Economic Community of West African States (“ECOWAS”) have executed the Ecowas Partnership Agreement (“EPA”).  However, Nigeria is yet to execute the same.

2. Application of the Law to Entities and Contracts

2.1        Which categories/types of entities are covered by the relevant legislation as purchasers?

The PPA describes the following entities as purchasers: ministries; the extra ministerial offices; Government agencies; parastatals and corporations.

However, a new bill to amend the PPA is being deliberated upon at the National Assembly and if passed into law will widen the category of purchasers to include the House of Representatives, the Senate, the High Court, as well as the Court of Appeal.

2.2        Which types of contracts are covered?

In line with the PPA, contracts for public procurement are goods, works and services carried out by the Federal Government and all procurement entities, as well as other entities which derive at least 35% of the funds appropriated or proposed to be appropriated for any type of procurement described in the PPA from the Federation Share of Consolidated Revenue Fund with the exception of special goods, works and services involving national defence or national security – unless the President’s express approval has been first sought and obtained (Section 15, PPA).

2.3        Are there financial thresholds for determining individual contract coverage?

There are financial thresholds which are revised from time to time by the National Council on Public Procurement and enforced by the Bureau of Public Procurement.  Currently. there are financial thresholds with limits based on the approving authority, for example, the current financial threshold for contracts for goods to be approved by the Bureau of Public Procurement, as well as the Federal Executive Council, is N100,000,000 (one hundred million naira) and above; while the Ministerial Tenders Board can approve contracts for goods from N5,000,000 (five million naira) and above, but not less than N100,000,000 (one hundred million naira).

2.4        Are there aggregation and/or anti-avoidance rules?

In principle, value estimates are limited to the value of individual procurements and the regulations do not specifically spell out an aggregation rule; however, a tenderer is required by the Standard Bid Document to submit only one (1) tender for each individual contract either individually or as a partner in a joint venture (JV), and is required to demonstrate resources and experience sufficient to meet the aggregate of the qualifying criteria and approved threshold for the individual lots.  There is no express provision in the regulations with respect to the aggregation of multiple contracts to determine whether the purchase is above the approved threshold.

2.5        Are there special rules for concession contracts and, if so, how are such contracts defined?

Concession contracts in Nigeria are described as Public-Private Partnerships, defined by the National Council for Public Private Partnerships as a “contractual agreement between a public agency (federal, state or local) and a private sector entity”.  In 2008, the Federal Government of Nigeria established the Infrastructure Concession Regulatory Commission (“ICRC”) under the Infrastructure Concession Regulatory Commission (establishment, etc.) Act, 2005 to regulate Public Private Partnership (“PPP”) endeavours of the Federal Government.

Most of the respective State Governments have their respective Public Private legislation which guides their dealings in this regard.

2.6        Are there special rules for the conclusion of framework agreements?

There are no definite rules for the conclusion of framework agreements; however, upon being awarded the contract, the successful bidder is invited by the awarding authority to execute the agreement within the time period of the validity of the bid.  The terms of the contract are not to differ materially from the terms included in the bid document.  The regulations also provide for certain terms that should be included in the contract document, such as the scope of work to be performed, the goods to be supplied, the rights and obligations of the procuring entity and the supplier/contractor, and the functions of the engineer/architect/construction manager if one is to be employed by the procuring entity in the supervision of the contract, including payments and advances to be made.

2.7        Are there special rules on the division of contracts into lots?

To qualify for a multiple number of lots in a package for which tenders are invited, the tenderer is to demonstrate having resources and experience sufficient to meet the aggregate of the qualifying criteria for the individual lots.  The tender document allows tenderers to quote separate prices for one or more lots, it also allows the procuring entity to award one or multiple lots to more than one tenderer following the methodology set out in the Standard Bid Document.

2.8        What obligations do purchasers owe to suppliers established outside your jurisdiction?

In order to minimise the foreign exchange risk for bidders in an International Competitive Bid (“ICB”) procedure, the bidders can bid in foreign currencies.  This results in bids being presented in a wide variety of currencies which is then converted to a single common currency, generally to Nigerian naira.  These conversions are made using the prevailing selling rates established for similar transactions by the Central Bank of Nigeria on the specified date.

Under the ICB, bidding opportunities are advertised internationally, and all eligible bidders are given equal opportunities to participate.

3. Award Procedures

3.1        What types of award procedures are available?  Please specify the main stages of each procedure and whether there is a free choice amongst them.

The award procedure adopted by the procuring entity depends on the type and magnitude of the award, the value, local obtainability and cost of goods and services.  The exigency within which the goods and services to be procured is considered in the choice of an award procedure.

The PPA sets out three (3) different procedures for awards.  These procedures are stated below:

• Part VI (sections 25–38) prescribes the procedure for an open invitation to bid, either by way of national competitive bidding or ICB.  From time to time, the Bureau of Public Procurement (“BPP”) sets the monetary threshold for which awards are given under this method;
• Part VII (sections 39–43) provides for special and restricted methods of procurement by way of a two-stage tendering process as well as a restricted tendering process.  A two-stage tendering process is required where it is not feasible for the procuring entity to formulate detailed specifications for the goods required or identify the characteristics of the services required, or where the character of the goods are subject to rapid technological advances.  Though the open competitive bid procedure also applies in the two-stage tendering process, the procuring entity solicits proposals that relate to technical or other characteristics of the goods/services and at the first stage engages in negotiations with suppliers whose proposals have been selected for consideration.  At the second stage, it may formulate, delete or modify any aspect of the characteristics of the goods/works/services and shall evaluate the final tenders to ascertain the successful tender in an open competitive bid.  The restricted bid process is utilised for efficiency, for example if the goods are available from only a limited number of suppliers, the procuring entity shall invite only tenders from the suppliers who can produce the goods.
• Part VIII (sections 44–52) provides for expressions of interest to provide services for ascertained and unascertained needs (procurement of consultants).  Under the procedure to request for ascertained needs, the procuring entity solicits for expressions of interest or applications to pre-qualify to provide the services by publishing a notice to this effect in two national newspapers and the procurement journal.  Where the value of the services is less than N1 million, or with the approval of the BPP if it is of a such a low value that only national consultants will be interested, the procuring entity may, without placing any notice, request between three (3) and ten (10) tenders to submit proposals to provide the services.

3.2        What are the minimum timescales?

The PPA generally does not prescribe time limits as such time limits are dependent on the goods/services to be procured which will inform the bid validity period as stated in the standard bid document; however, for the procurement of consultant services, Section 48 of the PPA states that the procuring entity shall allow sufficient time for the preparation of requested proposals, but shall in no case give less than 30 (thirty) days and no more than 90 (ninety) days between the issue of the notice or request and the deadline for submission.

3.3        What are the rules on excluding/short-listing tenderers?

Section 31 of the PPA provides for the examination of bids upon submission by the procuring entity to ensure that they meet eligibility requirements stipulated in the bidding documents, they have been duly signed, are substantially responsive to the bidding documents and are generally in order.  The procuring entity is permitted to seek clarification from the tenderers in carrying out this examination, but during this process changes cannot be made to the prices or substance of the bid, nor can an unresponsive bid be made responsive.  The following are considered as major deviations and lead to the rejection of bids at the initial stage: unacceptable sub-contracting; unacceptable time schedule if time is of the essence; unacceptable alternative design; and unacceptable price adjustment.  The status of the bidder is also considered, and the bid shall be rejected if he/she/it is ineligible, not pre-qualified or uninvited.  Bids submitted to the wrong location are also not considered.

3.4        What are the rules on evaluation of tenders?  In particular, to what extent are factors other than price taken into account (e.g. social value)?

Section 32 of the PPA provides for the way bids are evaluated, the objective being to determine and select the lowest evaluated responsive bid.  The following processes are undertaken in evaluating tenders: checking of deviations; checking of omissions with quantification of the same; application of discounts; clarification with bidders of questionable deviations; conversion to common currency; calculation and tabulation of the bid amount with domestic preference where applicable; determination of the lowest calculated prices in order of rank; post-qualification of bidders; where applicable, listing of rejection of all bids where justifiable; and revealing the decision for rejection of bids where justifiable.  Generally, factors to be considered in evaluating tenders are stipulated in the solicitation documents for each bid.

In the procurement of consultancy services, factors considered other than price are the qualification, experience, reliability and managerial competence of the consultant, the effectiveness of the proposal submitted, the effects the acceptance of the proposal will have on the balance of payments position and foreign reserves of the Government, national defence and security considerations.  Section 49(1), PPA.

After completion of the evaluation process, the procuring entity is expected to prepare a bid evaluation report setting out the process of evaluation.

3.5        What are the rules on the evaluation of abnormally low tenders?

In the line with the regulations, if the bid prices are marginally low, the bidder is requested to prove to the satisfaction of the procuring entity how the bidder intends to procure such items/perform the works/provide the services as per the quoted rates; for such purposes the bidder may be asked to provide a rate analysis.  If the procuring entity is of the view that the justification/explanation provided by the bidder is unacceptable, and hence the bidder would fail in the performance of its obligations within the quoted rates, a higher performance security may be requested to mitigate such risks; where the bidder is unable to provide such additional performance security, their bid will be rejected.  The PPA prohibits changes in prices after a bid has been submitted.

3.6        What are the rules on awarding the contract?

The PPA provides that successful bids shall be those that are submitted by the lowest cost bidder from the bidders responsive as to the bid solicitation; however, where the procuring entity can show good grounds as derived from the Act, they may not select the lowest cost bidder.  Upon selection of the successful bid, a notice of the acceptance is issued by the procuring entity to the successful bidder.

In line with Section 36 of the PPA, the provision of a Performance Guarantee shall be a precondition for the award of any procurement contract upon which any mobilisation fee is to be paid, provided however it shall not be less than 10% of the contract value in any case or an amount equivalent to the mobilisation fee requested by the supplier or contractor – whichever is higher.

Prior to contract award, the procuring entity is to ensure that budgetary provision is confirmed to meet the cost of the contract.  Thereafter, the Letter of Acceptance is issued within the validity period of the bid.

3.7        What are the rules on debriefing unsuccessful bidders?

Section 31 (9) and (15) of the PPA provides that in all cases of rejection, a letter stipulating the reasons for rejection is to be sent promptly to unsuccessful bidders; however, the bidders are not permitted to amend the bid to become compliant.

3.8        What methods are available for joint procurements?

The Standard Bidding Document (“SBD”) for the procurement of works and goods contains certain listed requirements to be met by all partners of a joint venture.  The figures for each of the partners of a JV are to be added together to determine the tenderer’s compliance with the minimum qualifying criteria.

The SBD also provides that for a JV to qualify, each of its partners must meet at least 25% (twenty-five percent) of the minimum criteria for an individual tenderer, and the lead partner, at least 40% (forty per cent) of the minimum criteria.  Failure to comply with this requirement will result in rejection of the JVA tender.  Subcontractors’ experience and resources are not considered in determining a tenderer’s compliance with the qualifying criteria.

The SBD further provides that if a contractor is a joint venture company, all of the parties shall be jointly and severally liable to the procuring entity for the fulfilment of the provisions of the contract and shall designate one party to act as a leader with authority to bind the joint venture.  The composition or the constitution of the joint venture is not to be altered without the prior consent of the procuring entity.

3.9        What are the rules on alternative/variant bids?

In line with Rule 105 of the PPRGWR, if the bid document asks for alternative bids or designs, the bidders are to first quote the price for the base method and specifications indicated in the bid document and secondly indicate the price for the deviation or alternative solution.  Only the alternative bid of the substantially responsive lowest evaluated bid shall be considered for contract award.

3.10      What are the rules on conflicts of interest?

Section 57 of the PPA which outlines the code of conduct for public procurement provides rules on conflicts of interest in clause 10-12.  It states that any person engaged in public procurement who has assumed or is about to assume a financial or business relationship that might involve a conflict of interest must immediately declare to the authorities any actual or potential interest.  Section 12 further outlines situations where a conflict of interest can be said to exist.

Also, in accordance with the PPM, an individual, firm or its affiliates which provided consultancy services for the preparation and implementation of a project is disqualified from subsequently providing goods and works for the same project in order to prevent a conflict of interest.

Procurement Unit Heads are to maintain Conflict of Interest Registers in which all their officers declare, by recording in the register, whenever they are likely to enter a conflict of interest situation which may have an impact on their relationship with the procuring entity.

3.11      What are the rules on market engagement and the involvement of potential bidders in the preparation of a procurement procedure?

The regulations do not specify rules on market engagement; however, a procuring entity during its planning procedures is expected to carry out market and statistical surveys to be used in preparing an analysis of the cost implication of the proposed procurement.

Section 16 (24) of the PPA specifically provides that persons who have been engaged in preparing for a procurement are not expected to bid for the procurement either as the main or sub-contractor, and are not to co-operate in any manner with bidders in the course of preparing their tenders.

4. Exclusions and Exemptions (including in-house arrangements)

4.1        What are the principal exclusions/exemptions?

The major exclusions are in relation to the category of suppliers, contractors and consultants by the BPP and the same is listed in Section 16 (8) (a-g) of the PPA.  An example is where there is verifiable evidence that any supplier, contractor or service provider has given or promised a gift of money or any tangible item in an attempt to influence any action, decision making or the continuation of any procurement activity or use of a supplier, contractor or service provider who has failed to perform or to provide due care in performance of any public procurement during the last three years prior to the commencement of the procurement proceeding in issue.

The PPA also excludes the procurement of special goods, works and services involving national defence or national security unless the President’s express approval has been first sought and obtained.

4.2        How does the law apply to “in-house” arrangements, including contracts awarded within a single entity, within groups and between public bodies?

The PPA provides for the award of contracts to a single source which is categorised as direct procurement in Section 42 of the PPA.  Instances are given for the implementation of direct procurement, one of which is if such procurement concerns national security and it is determined that a single source procurement is the most appropriate method of procurement.  However, in this situation, the procuring entity is to include on the record of procurement proceedings a statement of the grounds for its decision and the circumstances in justification of single-source procurements.

5. Remedies

5.1        Does the legislation provide for remedies and if so what is the general outline of this?

The PPA provides for administrative review to be requested by a bidder where an omission or breach has been made by a procuring entity.  The complaint is to be made to the accounting officer within 15 (fifteen) working days from the date the bidder first became aware of the circumstance; the accounting officer is to decide in writing within 15 (fifteen) working days.  The Act further provides that where the bidder is not satisfied with the decision of the accounting officer, the bidder shall within 10 (ten) working days from the date of communication of the decision of the accounting officer make a formal complaint to the BPP.  The BPP is required by the Act to decide within 21 (twenty-one) working days; if the bidder is unsatisfied with the decision of the BPP, they may appeal at the Federal High Court within 30 (thirty) days after receipt of the decision.

5.2        Can remedies be sought in other types of proceedings or applications outside the legislation?

Remedies can only be sought in the court of law as stated in question 5.1 above.

5.3        Before which body or bodies can remedies be sought?   

In line with the PPA, remedies can only be sought before the Accounting Officer, the BPP and the Federal High Court.  Appeals are heard by the Court of Appeal and the Supreme Court.

5.4        What are the limitation periods for applying for remedies?

As detailed in question 5.1 above.

5.5        What measures can be taken to shorten limitation periods?   

There are no statutorily provided measures to shorten limitation periods.

5.6        What remedies are available after contract signature?  

This will be provided for in the letter of award/contract executed between the parties.  The contract may provide for alternative dispute resolution measures such as arbitration.  Otherwise, aggrieved parties may seek redress in the court of law and make an appeal to the Court of Appeal and a further appeal to the Supreme Court.

5.7        What is the likely timescale if an application for remedies is made?

Prior to execution of the contract, the timescale is as detailed in question 5.1 above.  Upon execution of the contract, the timescale will be based on the length of the court proceedings.

5.8        What are the leading examples of cases in which remedies measures have been obtained?    

In Nigeria, there are no particular leading cases in this regard; however, a noteworthy case showing the manner in which remedy measures can be obtained in a bidding process is the case of BFI Group Corporation v. Bureau of Public Enterprises (2012), which reached the apex court, the Supreme Court.  BFI appealed against the decision of the Court of Appeal which affirmed the decision of the Federal High Court in the matter.  BPE had advertised for expression of interest by interested bidders for a contract.  BFI was awarded the contract but was requested to pay 10% of the bid price within 15 days which was contrary to the provision of the bid document.  The inability to meet this demand led to the unilateral relinquishment of the award by the procuring entity.  The Supreme Court allowed the appeal in this case and ruled in favour of BFI.

5.9        What mitigation measures, if any, are available to contracting authorities?

In procurement for works, the regulations mandate the contractor to provide, in the joint names of the contracting authority and the contractor, insurance cover from the start of the project to the end in certain stipulated amounts and deductibles for the following events which are due to the contractor’s risks: loss of, or damage to, the works, plant, and materials; loss of, or damage to, equipment; loss of, or damage to, property; and personal injury or death.

The contracting authority may also resort to dispute resolution measures as contained in the contract.

6. Changes During a Procedure and After a Procedure

6.1        Does the legislation govern changes to contract specifications, changes to the timetable, changes to contract conditions (including extensions) and changes to the membership of bidding consortia pre-contract award?  If not, what are the underlying principles governing these issues?

The legislation provides for changes in contract specifications, conditions and timetable as the law provides that the procuring entity may request suppliers or contractors to extend the period of validity.  Modifications are also permitted by the tenderers as long as it is made before the deadline for the submission of the bids.

6.2        What is the scope for negotiation with the preferred bidder following the submission of a final tender?

In line with Section 39 (5) of the PPA, during a two-stage tendering method, the procuring entity may engage in negotiations with the short-listed bidders with respect to any aspect of its tender.

There is no reference to the scope of negotiation in the regulations with respect to the final selected bidder.

6.3        To what extent are changes permitted post-contract signature?

In line with the PPA, changes may occur in the quantity of works done, requiring amendments to the contract agreement.  Such agreement is executed by a change order or a variation order, provisions for which are provided for in the Special Conditions of Contract and are justified in the reports on contract execution.  For example, if the aggregate amount of the variations (due to quantity changes and extra works orders issued) is within the contingency provision (which should be 10% maximum), the accounting officer of the procuring entity may approve the change order with notification to the BPP.

Also, if an amendment to the contract, a change order, or an extension would increase the original contract price by more than 15% (fifteen percent), the BPP has the authority to approve or reject such changes. If such change is rejected, the BPP is to propose alternative less costly modifications or recommend a reduction in the scope and size of the contract.

6.4        To what extent does the legislation permit the transfer of a contract to another entity post-contract signature?

The legislation does not have a direct provision for subcontracting; however, the PPM provides that if there will be subcontracting, the same must have been provided for in the bidding document for the works contract, which would have indicated the extent to which subcontracting is permitted and whether the proposed subcontractor has to be named in the bid.  If the same was not stated by the successful bidder at the bidding stage, it is not to be permitted post-contract signature.

7. Privatisations and PPPs

7.1        Are there special rules in relation to privatisations and what are the principal issues that arise in relation to them?

There are no special procurement rules on privatisation, but if privatisation is to be categorised as a public contract, the legislation guiding the activities of the Bureau of Public Enterprises shall apply.  It is the Bureau of Public Enterprises that is responsible for privatisation in Nigeria.  Some of the principal issues that arise with privatisation in Nigeria is the dearth of capital by private firms to manage the business after incurring large costs in purchasing the assets.  The poor response on the payment for essential services supplied is also a discouraging factor to new owners in privatisation.  Also, there is some level of high-handedness on the part of the private owners due to the fact that the option of buy-back by the public sector is usually not enforced.

7.2        Are there special rules in relation to PPPs and what are the principal issues that arise in relation to them?

There are no special procurement rules on PPPs in Nigeria but if PPPs are to be categorised as a public contract, the ICRC (establishment) Act 2005, which mandates the Infrastructure Concession Regulatory Commission to manage PPP processes in Nigeria, shall apply.  Under the PPP model in Nigeria, the private sector manages the overall project – design, construction, operations and maintenance – and is directly responsible for service delivery to users.  This varies from the guidelines for public procurement where the public sector is majorly responsible for all project management roles and is directly responsible for service delivery to users.

Some of the principal issues that arise in relation to PPPs in Nigeria are the irregularity of information dissemination between the public and private sector, which sometimes leads to the development of PPP contractual terms that the public sector may later fail to accede to or administer.  Also, the lack of an enabling environment in terms of strong legal and regulatory framework, and enforcement bodies has equally weakened the operations and management of PPPs.

PPPs also suffer the effect of political pressure and increased tariffs, which makes infrastructure services more expensive to provide.

8. The Future

8.1        Are there any proposals to change the law and if so what is the timescale for these and what is their likely impact?

There have been several attempts to debate on the amendment of the Public Procurement Act which has suffered various setbacks at the National Assembly since 2016.  However, the debate has commenced again and the Public Procurement (Amendment) Bill, 2018 just passed the first reading on 3 July 2018 at the House of Representatives.  The timescale for the enactment of the Act is uncertain as Nigeria operates a bicameral legislature which makes the process of law making longer, as deliberation and consideration of many interests and implications of the bill is required.

However, some of the provisions of the bill which would have a direct impact on the regime are the additional functions of the BPP which now includes the maintenance of a national base of particulars and classification of suppliers and consultants.  The BPP has also been charged with the responsibility of performing procurement audits and reviews and, upon approval of the National Council on Public Procurement, submit such report to the President, Senate President and the Chief Justice of Nigeria annually.  The new bill also provides for the development, promotion and support of training and professional development of public personnel involved in procurement by the BPP, as well as the assistance and support of local business communities to become competitive and efficient suppliers to the public sectors.

The new bill seeks to widen the scope of application of the PPA to cover procurements made by the national defence and national security agencies, House of Representatives, Senate, High Court, as well as the Court of Appeal.  It is intended that the Judiciary at different levels would be included as an approving authority.

8.2        Have there been any regulatory developments which are expected to impact on the law and if so what is the timescale for these and what is their likely impact?

There are no regulatory developments expected to impact directly on the law at this time other than mentioned in question 8.1, as the amendment of the PPA will influence other related regulations or guidelines.  However, the BPP is fast taking advantage of technology to simplify and hasten the process of procurement and has introduced an e-procurement system for its operations.