Author
FRANCIS CUDJOE
Procurement Professional
Ghana

Abstract

Public procurement constitutes a substantial portion of government expenditure in Ghana and plays a pivotal role in national development. The Public Procurement Act, 2003 (Act 663), as amended by Act 914 (2016), establishes a legal framework to ensure transparency, competition, and value for money in the use of public funds. Notwithstanding these provisions, the increasing reliance on sole sourcing particularly for high-value contracts has raised critical legal and governance concerns. This paper examines whether the award of large contracts through sole sourcing constitutes an offence under Ghana’s procurement laws. Using the Big Push road contracts as a case study, the article analyses the legal thresholds for sole sourcing, identifies potential violations, and evaluates the broader economic and institutional implications. The paper concludes that the unjustified use of sole sourcing for high-value contracts undermines procurement principles and may amount to a breach of the law.

Keywords
Public Procurement, Sole Sourcing, Competitive Tendering, Act 663, Act 914, Ghana, Big Push Programme, Procurement Offences, Value for Money, Transparency

1. Introduction

Public procurement plays a central role in the economic and infrastructural development of Ghana. It constitutes a significant portion of government expenditure and directly influences the efficiency of public service delivery. Recognizing its importance, Ghana enacted the Public Procurement Act, 2003 (Act 663), later amended by Act 914 in 2016, to regulate procurement activities and ensure that public funds are used in a transparent, competitive, and accountable manner. The law establishes clear procedures and methods for procurement, emphasizing competitive tendering as the preferred approach while allowing alternative methods such as sole sourcing only under strictly limited conditions.

However, recent developments in Ghana’s infrastructure sector, particularly under the Big Push road programme, have raised serious concerns regarding the increasing reliance on sole sourcing for high-value contracts. This trend raises a fundamental legal and governance question: whether the award of large contracts through sole sourcing constitutes an offence under the procurement law.

2. Legal Framework of Public Procurement in Ghana

The Public Procurement Act, 2003 (Act 663), as amended by the Public Procurement (Amendment) Act, 2016 (Act 914), governs procurement activities in Ghana. The Act is grounded in key principles, including transparency, competition, fairness, and value for money.

Sections 35 and 36 of Act 663 establish competitive tendering as the primary procurement method. This method ensures that procurement opportunities are open to multiple bidders, thereby promoting competition and efficiency. The law clearly positions competitive tendering as the default approach for public procurement.

3. Sole Sourcing Under the Law
Sole sourcing, also known as single-source procurement, is provided for under Section 40(1) of Act 663. The section permits its use only under exceptional circumstances, including:
• Where goods, works, or services are available from only one supplier
• Where there is an urgent need that cannot accommodate competitive tendering
• Where standardization or compatibility requirements make it necessary

The restrictive nature of Section 40 reflects the legislature’s intention to limit sole sourcing due to its inherent lack of competition and transparency.

4. Sole Sourcing and High-Value Contracts

The application of sole sourcing to high-value contracts presents significant legal and economic risks. Large infrastructure projects, such as road construction, typically involve substantial financial commitments and multiple capable contractors.
Awarding such contracts without competition:
• Undermines value for money
• Increases the likelihood of inflated pricing
• Excludes qualified competitors
Under Act 663, using sole sourcing without satisfying the strict conditions of Section 40 constitutes a breach of procurement procedures and may amount to an offence.

5. Case Study: The Big Push Road Contracts

The Big Push programme is a major government initiative aimed at accelerating Road infrastructure development in Ghana. However, reports indicate that a substantial number of contracts under this programme were awarded through sole sourcing.

Given the scale and nature of these projects, questions arise as to whether the legal thresholds for sole sourcing were met. Road construction is not typically characterized by a lack of available contractors, nor does it always involve emergency conditions that justify bypassing competitive tendering.

The extensive use of sole sourcing in this context suggests a possible deviation from the intent and requirements of Act 663.
6. Legal and Economic Implications
From a legal standpoint, awarding high-value contracts through sole sourcing without proper justification may constitute:
• A breach of procurement procedures
• Abuse of discretionary power
• Violation of statutory obligations
Economically, such practices can lead to:
• Inflated contract costs
• Inefficient allocation of public resources
• Increased public debt
From a governance perspective, it undermines transparency and erodes public trust in public institutions.

7. Counter-Arguments and Justifications

Proponents of sole sourcing often cite urgency and efficiency as justifications. While these arguments may be valid in certain circumstances, they must be assessed against the strict requirements of Section 40.
Urgency must be genuine and not a convenient justification for bypassing competition. Similarly, promoting local contractors should be achieved within the framework of competitive procurement rather than through direct awards.
8. Recommendations
To address the challenges associated with sole sourcing, the following measures are recommended:
• Strict enforcement of procurement laws
• Enhanced transparency through publication of procurement data
• Strengthening the capacity of the Public Procurement Authority
• Imposition of sanctions for non-compliance

9. Conclusion

The Public Procurement Act, 2003 (Act 663), provides a robust framework for ensuring transparency, competition, and value for money in public procurement. Sole sourcing is permitted only as a narrow exception under clearly defined conditions.
The widespread use of sole sourcing for high-value contracts, as observed in the Big Push road programme, raises serious legal and ethical concerns. Where such practices occur without proper justification, they undermine the principles of the law and may constitute an offence.

Ensuring compliance with procurement laws is essential to safeguarding public resources and maintaining public trust in governance systems.

References
• Public Procurement Act, 2003 (Act 663) (Ghana)
• Public Procurement (Amendment) Act, 2016 (Act 914) (Ghana)
• Public Procurement Authority, Guidelines on Procurement Methods (Ghana)
• Fourth Estate Ghana, Reports on Big Push Road Contracts and Sole Sourcing Practices
• Organisation for Economic Co-operation and Development (OECD), Principles for Integrity in Public Procurement