Ex-ante review of public procurement decisions

The term “ex-ante review” means prospective review and is more proactive and widely accepted ahead of ex-post facto review that is regarded retrospective.

It is widely regarded as a tool that enhances fiduciary duties of the public procurement office. At this point, it is important to observe that ex-post facto review does not give the right to the public procurement office to make procuring decisions for procuring entities, but rather allows procuring entities to be accountable and responsible for their procurement decisions.

It only allows for a pre-audit of the procurement process in order to facilitate issuance of a “conditional no objection” based on the facts presented.

The qualification of a “conditional no objection” is based on the fact that procurement in general is a high risk area and proposed procurement awards could be based on encapsulated facts or criteria that might change the bases of the award. As such, the ex-ante review would require procurement experts to assess whether the decisions and actions taken by the procuring entity in the development of the process were correct.

It evaluates the basis based on the law and procurement principles. It goes further to check if there are no indications of fraud and corruption in the procurement decision before it is binding to the parties.

The ex-ante review needs to be wholesome to be effective. It needs to take into account the review of the request for proposals that form the basis of contract awards. Most of such reviews are limited to the evaluation process, checking whether the process was done following the procurement guidelines thereby limiting the effectiveness of such actions. Evaluation of procurement principles is only incorporated when there is an effective review of the pre-tender stage before the request for proposal is issued.

A pre-tender review would evaluate the appropriateness of the specifications to ensure value for money principles are incorporated. The required levels of tender security, performance security and general conditions of contract need to be appropriate. The evaluation process review will only assess if the laid down requirements were followed without any deviation.

Most issues identified at the pre-tender stage include gold plating of specifications, both supplier and product or service that tends to reduce completion as well as eroding value for money in the procurement process. At the evaluation stage, the deviation from request for proposal clauses is common and it results in the contract award that is not objective.

An ex-ante review thereby enhances confidence in public procurement systems since it allows for proactive control of public procurement decisions. It facilitates the public procurement office to be the first port of call in the event of a challenge by parties concerned. This is possible since the public procurement office is not directly involved in the award process; it only issues a no objection based on the facts presented and is not compromised to review the public procurement decision by the procuring entity when additional information is made available.

Ex-ante review is widely accepted than ex-post facto review on the basis that it limits mis-
procurement that inevitably reduces fraud and corruption in public procurement. It is done by procurement experts enhancing professionalism. Corporate governance is enhanced where there is separation of policy and operation of the law.

Nyasha Chizu is a Fellow of the Chartered Institute of Purchasing and Supply writing in his personal capacity. Feedback: nyashachizu@harleyreed.com; Skype: nyasha.chizu

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