Post-qualifications in public procurement

BY: Frank Mante
The Writer
The Writer

There has been little public discourse on the subject matter of post-qualification even though it remains a very critical aspect in the evaluation of tenders/proposals/quotations under Ghana’s public procurement regime.

It is, therefore, pertinent to carry out some expository analysis of what it entails, its relevance and how it can be used to mitigate procurement related risks in public procurement in Ghana.

However, before we delve into that it is appropriate to explore some working definitions of what post-qualification is.

  Note that the Public Procurement Act, 2003 (Act 663) as amended by the Public Procurement (Amendment) Act, 2016 (Act 914), and the Subsidiary Legislations do not provide any definition of post-qualification.

According to the guidelines for Post-qualification developed by the AfDB ‘‘post-qualification is a process of verifying, validating and ascertaining the genuineness of the statements made and information provided by the bidder(s)’’.

From the above definition, post-qualification incorporates some aspects of Due Diligence (DD) at a high level.

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The process could include the verification of the tenderer’s tax clearance certificate, SNNIT certificate, business registration certificate, audited accounts, direct and indirect shareholders; beneficial ownership; corporate history and activities; litigation history; criminal, civil and regulatory background; debarment; technical capacity, experience and performance track record on previous contracts, financial history (including liquidity, debt and profitability; conflict of interests and securities.

Such an exercise, could unearth any possible risks to the Procurement Entity.

Limitation

Drawing from the above limitation of Act 663 as amended on post-qualification, it is revealing to know that no detailed guidelines regarding how post-qualification should be conducted exist.

 The closest provisions are under Section 22(9) which states ‘‘the procurement entity may require the authentication of a foreign document provided by a tenderer to demonstrate the qualification of the tenderer’’.  

Similarly, Section 24(5) states ‘‘the procurement entity may require a supplier or contractor who has been prequalified to demonstrate its qualification again in accordance with the same criteria used to prequalify the supplier or contractor’’.

This provision pertains to the prequalification procedure (Sections 23-24) which is mandatory for the procurement of goods (above GH¢ 10m), works (above  GH¢ 15m) and technical services (above GH¢ 5m) as spelt out under the Fifth Schedule of Act 663 as amended.  

Similarly, section 4.14.5 of the Manual to the Act 663 (yet to be amended), also provides some limited information on post-qualification (Repeat Tender Qualifications).

Relevance

It is, therefore, relevant for Procurement Entities to integrate the process of post-qualification into evaluation processes so as to mitigate any possibly procurement related risks.

Post-qualification:

• protects the reputation of Procurement Entities against the possibility of a Tenderer’s failure to perform its contractual obligations.

 Thus, a contractor’s poor performance could largely be attributable to a failure of the procurement entity in conducting post-qualification.
 
• provides a sound basis to validate, confirm and authenticate the reliability and validity of documents submitted as part of a tender, proposal or quotation.

• provides assurance to a Procurement Entity that a recommended Tenderer is competent and capable of performing the intended contract.

What should post-qualification entail?

The process of post-qualification entails the following critical steps:
 
In the first place, the Procurement Entity should make a conscious decision, to conduct post-qualification on specific procurements under consideration.

This decision should inform the criteria for qualification and evaluation (Sections 22 and 59 respectively).

Secondly, the process of post-qualification should be limited to the criteria already established prior to the solicitation document being issued.

 Failure to do this, would be in violation of the provisions under Section 59(5) of Act 663 as amended.

Thirdly, though it is customary for administrative checks to be conducted at the start of an evaluation process, the process of post-qualification should commence after technical (at a minimum) and financial evaluations have been concluded.  

Fourthly, the process of post-qualification should be limited to documentary evidence or other information submitted by a Tenderer.

Fifthly, due to potential delays to the conclusion of an evaluation process as a result of a post-qualification exercise, it is imperative and prudent for Procurement Entities to factor the time required to complete post-qualification.

 The validity periodsTenders/Proposals/Quotations and Tender Securities should be taken into consideration so as to avert awarding a contract on an expired Tender/Proposal.

Lastly, the outcome of a post-qualification exercise should be documented in line with the provisions under Section 28.

 If the exercise includes a site visit, the names of individuals, date of the visit(s), purpose of visit(s), any issues to be considered material with respect to whether or not a Tenderer will be compliant or not, etc, should be all noted.

It is important to develop a checklist for such a purpose so as to ensure that, all required details are covered from the outset.

 The process of post-qualification if properly planned, could minimise public procurement process related risks and ultimately enhance the overall achievement of value for money.

It is, therefore, suggested that future amendments to Act 663 as amended and the Subsidiary Legislations should provide a detailed approach to conducting post-qualification.

The writer (FCIPS, CMILT, CPSM) is
a procurement consultant.
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