Ministry Dragged To Court

The rumpus stirred last July by the award of a $28 million contract to Macmillan Education Limited for the supply of textbooks to Ghanaian schools is now a contest before the High Court.

The Ghana Book Publishers Association (GBPA), which alleged impropriety in the deal when it was sealed by the Ministry of Education and Sports, led by its President, Mr Elliot Agyare, is now seeking an injunction at the Accra Fast Track High Court to restrain the ministry and two others from proceeding with the contract pending the final determination of the instant application.

The two other respondents are the Public Procurement Board and the GETFund Board. The association is also seeking a declaration that the decision by the ministry to engage in single source procurement of books for schools from Macmillan, was factually and legally unwarranted and violated the provisions of the Public Procurement Act 2003 (Act 663). It is further seeking a declaration that the Public Procurement Board erred in law when it granted approval to the Ministry of Education and Sports to proceed by way of a single source procurement to purchase the books.

Another relief the association aspires to is an order to quash the approval by the Public Procurement Board to the ministry to go ahead with the single source procurement. Furthermore, the association is praying the court for an order of mandamus to compel the ministry to comply with the proper procurement procedure for the intended public procurement of the books.

In an affidavit in support of the application, the association said on July 29, 2005, the Ministry of Education and Sports, without due and prior approval from the Public Procurement Board, signed a contract with Macmillan Education Limited to the tune of $27,999,900.00 for the procurement of readers, dictionaries and textbooks for basic, senior secondary and teacher training colleges, in gross violation of the Public Procurement Act 2003. It said on August 26, 2005, after it had already signed the agreement with Macmillan, the ministry wrote to the Public Procurement Board seeking approval to conduct single sourcing in the procurement of the readers, dictionaries and textbooks, stating as its reasons, the fact that the matter was an urgent one and that four publishers, namely, Oxford, Heinemann, Longman and Macmillan, had submitted quotations, among which Macmillan?s was found to be the most competitive.

According to the affidavit, on October 18, 2005 and October 21, 2005, the other named publishers, Longman, Heinemann and Oxford, variously wrote to the Director-General of the Ghana Education Service (GES) refuting the imputation that they submitted quotations to the ministry, based on which it made its assessment, resulting in its opting for a single source procurement. It said the association was of the view that the purported contract between the ministry and Macmillan violated the Public Procurement Act 2003 (Act 663) and as such was null and void.

The affidavit said on August 31, 2005, the Public Procurement Board, in gross violation of its statutory duties under the act, and without any due diligence on its part to ascertain the veracity of the ministry?s request for approval, granted the ministry permission to use the sole source method to procure the selected books. It said immediately after the Public Procurement Board purported to grant its approval for the intended procurement on August 31, 2005, the ministry wrote to the GETFund Board on September 1, 2005 requesting for funds to execute the contract.

The request for funds from the GETFund was repeated on September 30, 2005 by the ministry. According to the affidavit, in all those circumstances it was clear that the ministry had not acted bona fide and the various contradictions in the positions it had taken showed a clear intention on its part not to comply with the provisions of Act 663. It said on the Public Procurement Board?s own showing, the decision taken by the ministry to undertake a single source procurement was premised on a comparative analysis of the catalogue prices of other suppliers, including Longman, Heinemann and Oxford.

The affidavit said any decision based on such an analysis was bound to be flawed, since it clearly gave the chosen supplier, who was allowed to quote special prices while the others were denied the opportunity, an undue advantage, thus clearly violating the letter and tenor of Act 663. It said additionally, the decision of the ministry to single source in that particular instance violated the ministry?s own textbook development and distribution policy for basic education, dated November 2003.

It said these facts ought to have been apparent to the Public Procurement Board had it taken steps to perform its functions properly, adding that the board?s failure to call the ministry to order clearly showed a disinclination on the part of the Public Procurement Board to apply the provisions of the act fairly and in the broader national interest. According to the affidavit, the association would suffer, if the respondents were not restrained, adding that ?the balance of convenience required that the respondents be restrained?.