The Anti-Corruption Commission yesterday published its report on the contract for the supply of thermal power between the Government of Sierra Leone and Income Elecrix limited (IEL) entitled ‘Faulty Lines in a Flawed and Costly Contract’.
The Commission finds inter alia that competitive bidding was the procurement method used but that this was misrepresented by the use of the term sole source.
That this misrepresentation was done so as to prevent full compliance with the provisions of the Public Procurement Act 2004 and Public Procurement Regulation 2006; there was a deliberate effort by the PEETF to award the contract to Income Electrix Limited as seen in the retrospective efforts undertaken to legitimize their action. Board approval and the consent of the National Commission for Privatisation was only sought after the contract had been signed; there was misrepresentation of facts between the Ministry of Energy and Power (NPA) on the one hand, and the Ministry of Finance and Economic Development on the other on the issue of non-financial implications to Government and that the contract contains a number of terms which were onerous to the Government and people of Sierra Leone.
Based on its findings, the Commission recommends that Government should seriously consider terminating the contract with immediate effect within the requisite legal framework to avoid further costs and embarrassment; In the alternative, the provisions of the contract must be thoroughly reviewed by the Attorney-General and Minister of Justice with a view to advising Government on how the same ought to be avoided or at the very least renegotiated by Government for more favourable terms that will minimize the fiscal impact as well as the monetary burdens on the nation’s economy.
The Commission further recommends that substantially violating procurement procedures and awarding the contract without prior approval from legally authorised institutions, is in itself, grossly improper. Individuals who sign contracts on behalf of Government and without complying with the procurement laws and regulations must be held personally liable for whatever loss is incurred by Government.
The Commission calls for the amendment of the Public Procurement Act 2004 to include a provision that will clearly spell out the consequence of mis-procurement or failure to comply with the provisions of the Act.
The Commission is of the view that blatant disregard for the law must in certain instances invalidate the contract ab initio. Although the provisions of the Anti-Corruption Act No 12 of 2008 does not apply to this contract, had it been in force at the time of the signing of this contract the provisions of subsection (2) (b) of Section 48 would have applied.
The process of committing Government to contracts must be clearly spelt out and Ministers must comply with the same. The Government of Sierra Leone should come up with a white paper on the signing of contracts making it mandatory for all MDAs to secure the expressed approval in writing of the Ministry of Finance and the Office of the Attorney General and Minister of Justice within the threshold of National and International Competitive Bidding.
The role of the National Commission for Privatisation vis-à-vis the role of the Minister of Energy and Power in administering the National Power Authority must be clearly spelt out and all three institutions must strictly adhere to their respective roles as defined in the National Power Authority Act No. 3 of 1982 and National Privatisation Act No 12 of 2002.
The Anti-Corruption Commission will continue its investigations into the award of the contract to determine whether there was a breach of the provisions of the Anti-Corruption Act 2000 which was the Act in force at the time this transaction took place.