When representatives of Ghana’s Attorney General and Minister of Justice went to court in July this year to claim, not in as many words, that the government of the republic had not done anything in furtherance of a presidential directive that West Blue Consulting Limited, be sole-sourced to manage the nation’s Single Window Project, they may have made misleading claims.
The Presidential directive to the Ministry of Finance came in a letter written by the Chief of Staff, Julius Debrah, dated 12th May, 2015. The letter was titled “IMPLEMENTATION OF THE NATIONAL SINGLE WINDOW AND RISK MANAGEMENT SYSTEM PROJECT.”
A relevant portion of the Chief Of Staff’s letter said, “In pursuant of H.E. the President’s decision, you are directed to formally engage West Blue Ghana Limited to undertake…” the national Single Window Project.
Another sentence in the letter said, “You should take the necessary steps to secure the Public Procurement’s approval in order to engage West Blue on Single Source basis.”
The letter sparked a huge public uproar and widespread allegations of cronyism after it emerged that Valentina Minta, Chief Executive of West Blue Consulting Limited, was born to the late Squadron Leader (Rtd) Clend Sowu, a former Member of Parliament for Anlo who served on the ticket of President John Mahama’s National Democratic Congress (NDC).
Court Action by freight forwarder
Mr. Debrah’s letter, which practically instructed the Ministry of Finance to give the contract to no other company done West Blue Consulting Limited, later formed the basis for a court action initiated in July this year, by Michael Kweku Gyan, a Ghanaian citizen and freight forwarder.
Mr. Gyan had alleged wrong doing in government’s handling of the processes, leading up to the implementation of the national Single Window Project, especially the intention to give management of project to West Blue Consulting Limited without competitive tendering.
On Mr. Gyan’s instructions, his lawyers filed two lawsuits before an Accra Human Rights court. The first suit challenged the legality of government’s plans to sole-source West Blue Consulting Limited to implement the Single Window Project.
The second suit prayed the court to grant an interim injunction to restrain the government from engaging West Blue Consulting Limited to implement the project until after all his grievances captured in the substantive suit were fully determined by the court.
In an affidavit in opposition to Mr. Gyan’s applications, the Deputy Attorney General and Minister of Justice, Dr. Dominic Ayine, asked the trial judge to dismiss the suits.
“The Applicant’s application also does not disclose any reasonable cause of action,” Dr. Ayine said in his affidavit. “Its allegation of non-compliance with the Public Procurement Act has been shown to be unfounded,” the affidavit, dated 24th July, 2015, added.
Dismissal of Court Action
Following the Attorney General’s pleadings, the Fast Track High Court that heard the case, in a judgement delivered on 31st July, 2015, struck out Mr. Gyan’s case for non-disclosure of reasonable cause of action.
“I am, however, not convinced that the applicant’s substantive application, together with the application for interlocutory injunction discloses any reasonable cause of action cognizable by the court or law,” the trial Judge, Justice Anthony Kwadwo Yeboah, held.
The Judge, in his judgement, described the suits filed by the Tema-based freight forwarder as “too prospective for judicial consideration.”
“Accordingly, the application filed by the applicant on 10-7-2015 is struck out for non-disclosure of reasonable cause of action pursuant to Order 11 Rule 18 (1) (a) of the High Court (Civil Procedure) Rules, 2004, C.I. 47”
Weeks after the court’s decision, extensive investigations have exposed a set of facts that show possible official collusion at various levels of national governance, to give the questionable deal to West Blue Consulting Limited a clean bill of health.
Indeed, the findings show that at the time the Attorney General was in court arguing that the government had not broken the Public Procurement Act; there were indeed facts to suggest that the law had been breached.
Government Broke the Law
For instance, piles of evidence suggest that in controversially awarding the contract to West Blue Consulting Limited through sole-sourcing, the Ministry of Finance did not comply with the provisions of section 40 of the country’s procurement act.
Section 40 (2) of the Act holds that, “A procurement entity may engage in single-source procurement with the approval of the Board after public notice and time for comment where procurement from a particular supplier or contractor is necessary in order to promote a policy specified in section 59 … and procurement from another supplier or contractor cannot promote that policy.”
Our investigations found that in disobedience of the law, the Ministry of Finance did not give “public notice and time for comment” on its intentions to engage West Blue Consulting Limited for the Single Window Project.
Also although the Ministry of Finance is on record to have applied to the Public Procurement Authority to grant it the needed approval to engage West Blue Consulting Limited under the provisions of section 31 of the Public Procurement Act, which deals with selective tendering, the Authority, for reasons not stated, chose to ask the Ministry to proceed with the contract award under section 40 of the act.
“Approval is being sought under section 39 of the Public Procurement Act, 2003 (Act 663) to enable the Ministry to use the Single Source Procurement to engage West Blue Ghana Limited to execute the National Single Window Project,” A Deputy Minister for Finance, Mona Hellen K. Quartey wrote in a letter to the Public Procurement Authority.
In the letter, the Deputy Minister said, “The Office of the President has given approval for West Blue to be procured on a Single Source basis due to the constraint per the letter dated 12th May, 2015 …from the Office of the President.”
The Deputy Minister’s letter gave lack of time as basis to ask the Public Procurement Authority to permit the Ministry to proceed under the provisions of section 39 of the Public Procurement Act.
However, further digging found that as far back as the year 2013, the Mahama Administration was aware that Ghana would implement a national Single Window project.
Government can’t argue lack of time
Evidence to this effect is available in the 2013 Budget Statement and Economy Policy read in Parliament by Finance Minister, Seth Terkper, to lawmakers.
“…For more than fifty years, all imports into the country have been under the pre-shipment destination inspection. This system has not resolved the issue of corruption at the ports. This system cannot be allowed to continue forever,” the Minister said.
He went on, “Therefore, after the existing contracts expire, the Customs division of GRA will assume the full responsibility for valuation, quality and quantity of imports, in line with the new thinking of the World Trade organisation (WTO).
“The Ghana Revenue Authority will develop a module that will enhance the existing risk management module and assist in carrying out this assignment.”
Two years after this announcement on the floor of Ghana’s Parliament, the Ministry of Finance, in a classic case of “dilatory” conduct, and in apparent defiance of the provisions of the Public Procurement Act, acted on the instructions of the Presidency and worked to sole-source West Blue Consulting Limited to execute the contract.
Section 40 (1) (b) of the Public Procurement Act provides that, “A procurement entity may engage in single-source procurement under section 41 with the approval of the Board, where there is an urgent need for the goods, works or services and engaging in tender proceedings or any other method of procurement is impractical due to unforeseeable circumstances giving rise to the urgency which is not the result of dilatory conduct on the part of the procurement entity;”
Curiously, when the Public Procurement Authority responded to the Finance Ministry’s request to sole source in a letter purportedly written on May 22, 2015, it wrote that, “After a thorough consideration of your request and the urgency attached, approval is hereby granted Ministry of Finance in accordance with Section 40 (1) (b) of Act 663 to sole source West Blue Ghana Limited to undertake” the single Window Project.
The contents of the Ministry of Finance’s letter of request and the letter of approval from Authority showed that although the Mrs Mona Quartey, in her letter to the Authority, requested approval for the contract award under section 31 of the Public Procurement Act which governs “selective tendering”, the Authority chose to grant the Ministry’s “request” under sections 40 and 41 [which govern sole sourcing] of the same act.
Mrs Mona Quartey confused?
It is unclear why the Authority granted the request when, on the face of the Deputy Minister’s letter, it was clear that she did not know what she was asking for – she had asked for approval to sole source under section 39 of the Procurement Act when in fact that provision deals with selective tendering.
Again, although the Authority’s letter of approval directed the Ministry of Finance to post the “contract award notice on the Public Procurement website: www.ppaghana.org”, the directive has till date not been adhered to by the Ministry.
A thorough search by Citi News on the Authority’s website on all sole-sourced contracts awarded by the Ministry of Finance over the last six months returned the comment, “Sorry there are no Sole Sourced Contracts that meet your search criteria…”
Meanwhile, West Blue Consulting Limited, a company established in 2012, is presently working with the speed of light to take over pre arrival inspection and classification of goods by September 1, 2015.
Customs, Excise and Preventive Service officials believe that the deal with West Blue Ghana Limited will cut inefficiencies in revenue mobilisation and “increase national revenue by some 20 percent.”
Under a contract signed with the government on August 4, 2015, West Blue Consulting Limited will ensure “software implementation and support activities to GRA and related agencies for takeover of the functions of the Destination Inspection Companies on the 1st September 2015”.
The company, per the contract, will also “conduct needs/gap analysis for the implementation of the National Single Window” and “implement the National Single Window Blue Print following the needs/gap Analysis”.
West Blue to earn Millions
For its troubles West Blue Consulting Limited will, according to official documents seen by Citi News, “be paid an equivalent of between 0.35 and 0.50 percent of Free on Board value of all imports except those exempted.”
Going by previous import volumes and funds accruing to the state as a result, West Blue Consulting Limited could be making millions of dollars annually for its software services to the Customs Excise and Preventive Service of the Ghana Revenue Authority.
On 11th June, 2015 letter, Major (Rtd) M.S. Tara, Chief Director of the Ministry of Finance, conveyed details of government’s decision to “award” the Single Window Project implementation contract to West Blue Consulting Ghana Limited.
“I wish to inform you that the Ministry of Finance, having received approval from the Public Procurement Authority to procure West Blue Ghana Limited on Single Source Basis, is happy to award you a contract to implement the National Single Window Project,” the Chief Director wrote.
“You are kindly requested to indicate your acceptance or otherwise of our request within 7 days to enable the Ministry award a contract to this effect,” the letter to West Blue Ghana Limited concluded.
In a response detailed in a letter dated June 12, 2015, Valentina Mintah, Managing Director and Chief Executive Officer of West Blue Ghana Limited accepted the government’s offer. “While accepting this award, we would like to thank you and assure you of the highest level of service,” it said.
Although the state was well aware of the two letters, if indeed they were written on the dates stated on them, the Attorney General’s Department did not produce them as evidence in court during hearing of Mr Michael Kweku Gyan’s case against the contract award.
In the end, some three weeks after the contract offer and acceptance, a Fast Track High Court in Accra, which was handed the case after the Chief Justice reportedly moved the matter from the Human Rights Court, gave a judgement that slammed Michael Kweku Gyan’s applications for putting “a great deal of store” on the Presidential directive to the Ministry of Finance to sole source West Blue Ghana Limited to carry out implementation of the Single Window Project.
In dismissing the suits, the Judge, said: “In the same letter the Minister of Finance was directed to engage West Blue Limited to undertake a set of listed services.
“The troubling words may be ‘to engage’: they mean (i) to attract the attention or (ii) to enter into a contract. It may very well be that the government wanted West Blue Limited to be identified, investigated and engaged in the sense of being contracted to undertake the services, but there is the unmistakeable catch: ‘to secure the Public Procurement’s approval.’”
According to the Judge, “The Public Procurement Authority is not before the Court and there is no evidence before the court as to what the Board has done in furtherance of this directive to found any cause of action.
“The applicant has not shown how the Public Procurement Board has acted on the directive and, most importantly, the Authority is not before this court to be heard in answer, if any case was made against it in these applications.”
“In this regard too, we are left cold in the realm of speculation as to what conduct is to be impeached under section 40 of Act 663,” the court said.
Presidential Directive Obeyed
Curiously, further investigations have revealed that the Ministry of Finance’s letter to the Public Procurement Authority referenced the directive from the presidency.
“The Office of the President has given approval for West Blue to be procured on a single source basis due to the constraint…” Mrs Mona Quartey’s letter to the Authority said.
It is further recalled that on 31st July, 2015, Alex Afenyo Markin, Lawyer for Michael Kweku Gyan, wrote an official letter to the Public Procurement Authority in which he said his client, “…Wishes to know whether any public procurement process has been initiated leading to the award of a contract for the implementation of the National Single Window & Risk Management Project”.
“Again, my client wishes to know whether the opportunity exist to enable him and his partner put in a bid or that your office is going along with the procurement on a Single-Sourcing Basis,” The letter added.
Mr. Markin’s letter to the Public Procurement Authority came over two months after the Authority had purportedly granted the Ministry of Finance the permission to engage West Blue Ghana Limited to implement the Single Window Project.
Yet, in what appears to be a clearly questionable response to Mr Markin’s request, Mr. Silas Mensah, Chief Executive Officer of the Public Procurement Authority said, “Please be advised that as a regulatory authority, the PPA does not get directly involved with the public procurement processes of government purchasing institutions.
“In this regard, the information you seek regarding availability of opportunity for the project; the public procurement processes concerning the implementation of a National Single Window project; and the method elected for procurement of the project is best obtained from the originating institution [i.e. the relevant procurement entity] which has the legal mandate to select its preferred procurement method, depending on the exigencies of the project,”
“From the foregoing, we advise you to direct your enquiry to the relevant procurement entity which is better placed to provide a more informed response,” the 5th August, 2015 letter from the Public Procurement Authority said.
An analysis of piles of available documentary evidence showed that if indeed the Authority’s letter approving the Ministry of Finance’s request on West Blue Consulting Limited was written on 22nd May, 2015, Mr Silas Mensah was well aware that the Authority he runs had indeed taken decisions on the matter and could not have referred the lawyer to the Ministry of Finance.
Meanwhile, two new suits filed by Michael Kweku Gyan against government’s deal with West Blue Consulting Limited are yet to be determined. Hearing on his application for an injunction against the government will continue on Wednesday.
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By Richard Dela Sky/citifmonline.com/Ghana