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  • Nigerian Litigation and Arbitration Law

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    Blackfriars LLP
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    The Nigerian Public Procurement Act (2007) and Debarment of Multinational Corporations from Participating in Government Contracts: Unanswered Questions on Blacklisting Rules It has to be presumed that good governance principles and ethics in public procurement procedures inspired the emergence of the PPA Act of 2007 in Nigeria. It is significant that the Nigerian PPA has the potential to promote values-based procurement with reasonable checks and balances. It also has the capability of enabling commercial entities engaged in public procurement to define clear roles and responsibilities within their organizations. More importantly, the establishment of independent external oversight of procurement activities is a radical improvement on the old order. Another innovation introduced by the Nigerian PPA is the creation of a body of common centralized rules and practices governing public procurement at the federal tier of government. It may therefore be said with conviction that the avowed policy of the Nigerian government as expressed in the PPA is to bring issues of public procurement within the ambit of legal control and transparent assessment. However, there are serious deficiencies with the PPA Act of 2007. The most troubling is that the legislation does not make provisions for legal review of or appeals against administrative decisions blacklisting or barring a business entity from participating in public procurement on grounds of corruption of public officials. A credible regime on public procurement must of necessity submit itself to public and judicial scrutiny. The absence of this quality in the PPA potentially leaves disaffected or aggrieved business entities at the mercies of omnipotent government officials entrusted with the powerful discretion of determining when and if a particular blacklisting would hold and for how long. Considering that the most remunerative contracts in Nigeria are often awarded by government agencies, it may be imprudent for a blacklisted business entity to pursue litigation and judicial review of the blacklisting exercise. Indeed, the question of whether to take legal measures against the Federal Government for “blacklisting” becomes more of a political/commercial judgment as distinct from legal. Be that as it may, a pursuit of legal remedy ought to be encouraged if the full promises of the PPA are to be realized. However, prior to undertaking a legal action for judicial review of a blacklisting exercise, attention must be paid by affected business entities to the grounds for which the Bureau has debarred that business entity from public procurement in Nigeria. Although the PPA is silent on the grounds for overturning disbarment of business entities, it stands to reason that the general rules of fair hearing and due process would constitute valid grounds for an application to overturn a disbarment order. Business entities in Nigeria which have been blacklisted by the Bureau may go either by way of an application for judicial review or if the PPA is applicable, raise a challenge on the grounds of non-compliance with the PPA. With regards to the former, an appeal may be filed at the Federal High Court in accordance with general principles of Nigerian law regarding decisions or actions of government agencies under section 251(1)(r) of the Constitution FRN 1999. With respect to circumstances where the PPA is applicable, it is advisable to issue a 30 days pre-action notice to the Bureau before any suit is commenced. Section 14(1) of the PPA stipulates that the pre-action notice against the Bureau should clearly and explicitly state: a. The cause of action; b. The particulars of the claim; c. The name and address of legal practitioner of the intending plaintiff; and d. The relief being sought.

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    The Nigerian Public Procurement Act (2007) and Debarment of Multinational Corporations from Participating in Government Contracts: Unanswered Questions on Blacklisting Rules It has to be presumed that good governance principles and ethics in public procurement procedures inspired the emergence of the PPA Act of 2007 in Nigeria. It is significant that the Nigerian PPA has the potential to promote values-based procurement with reasonable checks and balances. It also has the capability of enabling commercial entities engaged in public procurement to define clear roles and responsibilities within their organizations. More importantly, the establishment of independent external oversight of procurement activities is a radical improvement on the old order. Another innovation introduced by the Nigerian PPA is the creation of a body of common centralized rules and practices governing public procurement at the federal tier of government. It may therefore be said with conviction that the avowed policy of the Nigerian government as expressed in the PPA is to bring issues of public procurement within the ambit of legal control and transparent assessment. However, there are serious deficiencies with the PPA Act of 2007. The most troubling is that the legislation does not make provisions for legal review of or appeals against administrative decisions blacklisting or barring a business entity from participating in public procurement on grounds of corruption of public officials. A credible regime on public procurement must of necessity submit itself to public and judicial scrutiny. The absence of this quality in the PPA potentially leaves disaffected or aggrieved business entities at the mercies of omnipotent government officials entrusted with the powerful discretion of determining when and if a particular blacklisting would hold and for how long. Considering that the most remunerative contracts in Nigeria are often awarded by government agencies, it may be imprudent for a blacklisted business entity to pursue litigation and judicial review of the blacklisting exercise. Indeed, the question of whether to take legal measures against the Federal Government for “blacklisting” becomes more of a political/commercial judgment as distinct from legal. Be that as it may, a pursuit of legal remedy ought to be encouraged if the full promises of the PPA are to be realized. However, prior to undertaking a legal action for judicial review of a blacklisting exercise, attention must be paid by affected business entities to the grounds for which the Bureau has debarred that business entity from public procurement in Nigeria. Although the PPA is silent on the grounds for overturning disbarment of business entities, it stands to reason that the general rules of fair hearing and due process would constitute valid grounds for an application to overturn a disbarment order. Business entities in Nigeria which have been blacklisted by the Bureau may go either by way of an application for judicial review or if the PPA is applicable, raise a challenge on the grounds of non-compliance with the PPA. With regards to the former, an appeal may be filed at the Federal High Court in accordance with general principles of Nigerian law regarding decisions or actions of government agencies under section 251(1)(r) of the Constitution FRN 1999. With respect to circumstances where the PPA is applicable, it is advisable to issue a 30 days pre-action notice to the Bureau before any suit is commenced. Section 14(1) of the PPA stipulates that the pre-action notice against the Bureau should clearly and explicitly state: a. The cause of action; b. The particulars of the claim; c. The name and address of legal practitioner of the intending plaintiff; and d. The relief being sought.

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    150 visualizações2 páginas

    Nigerian Litigation and Arbitration Law

    Enviado por

    Blackfriars LLP
    The Nigerian Public Procurement Act (2007) and Debarment of Multinational Corporations from Participating in Government Contracts: Unanswered Questions on Blacklisting Rules It has to be presumed that good governance principles and ethics in public procurement procedures inspired the emergence of the PPA Act of 2007 in Nigeria. It is significant that the Nigerian PPA has the potential to promote values-based procurement with reasonable checks and balances. It also has the capability of enabling commercial entities engaged in public procurement to define clear roles and responsibilities within their organizations. More importantly, the establishment of independent external oversight of procurement activities is a radical improvement on the old order. Another innovation introduced by the Nigerian PPA is the creation of a body of common centralized rules and practices governing public procurement at the federal tier of government. It may therefore be said with conviction that the avowed policy of the Nigerian government as expressed in the PPA is to bring issues of public procurement within the ambit of legal control and transparent assessment. However, there are serious deficiencies with the PPA Act of 2007. The most troubling is that the legislation does not make provisions for legal review of or appeals against administrative decisions blacklisting or barring a business entity from participating in public procurement on grounds of corruption of public officials. A credible regime on public procurement must of necessity submit itself to public and judicial scrutiny. The absence of this quality in the PPA potentially leaves disaffected or aggrieved business entities at the mercies of omnipotent government officials entrusted with the powerful discretion of determining when and if a particular blacklisting would hold and for how long. Considering that the most remunerative contracts in Nigeria are often awarded by government agencies, it may be imprudent for a blacklisted business entity to pursue litigation and judicial review of the blacklisting exercise. Indeed, the question of whether to take legal measures against the Federal Government for “blacklisting” becomes more of a political/commercial judgment as distinct from legal. Be that as it may, a pursuit of legal remedy ought to be encouraged if the full promises of the PPA are to be realized. However, prior to undertaking a legal action for judicial review of a blacklisting exercise, attention must be paid by affected business entities to the grounds for which the Bureau has debarred that business entity from public procurement in Nigeria. Although the PPA is silent on the grounds for overturning disbarment of business entities, it stands to reason that the general rules of fair hearing and due process would constitute valid grounds for an application to overturn a disbarment order. Business entities in Nigeria which have been blacklisted by the Bureau may go either by way of an application for judicial review or if the PPA is applicable, raise a challenge on the grounds of non-compliance with the PPA. With regards to the former, an appeal may be filed at the Federal High Court in accordance with general principles of Nigerian law regarding decisions or actions of government agencies under section 251(1)(r) of the Constitution FRN 1999. With respect to circumstances where the PPA is applicable, it is advisable to issue a 30 days pre-action notice to the Bureau before any suit is commenced. Section 14(1) of the PPA stipulates that the pre-action notice against the Bureau should clearly and explicitly state: a. The cause of action; b. The particulars of the claim; c. The name and address of legal practitioner of the intending plaintiff; and d. The relief being sought.

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    Attribution Non-Commercial (BY-NC)
    Baixe no formato PDF, TXT ou leia online no Scribd
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    de 2

    WWW.BLACKFRIARS-LAW.

    COM

    The Nigerian Public Procurement However, there are serious


    Act (2007) and Debarment of deficiencies with the PPA Act of 2007.
    The most troubling is that the legislation
    Multinational Corporations from
    does not make provisions for legal
    Participating in Government review of or appeals against
    Contracts: Unanswered Questions administrative decisions blacklisting or
    on Blacklisting Rules (Final Part) barring a business entity from
    participating in public procurement on
    January 2009 Vol. 22: Issue 1 grounds of corruption of public officials.
    A credible regime on public
    It has to be presumed that good procurement must of necessity submit
    governance principles and ethics in itself to public and judicial scrutiny.
    public procurement procedures inspired The absence of this quality in the PPA
    the emergence of the PPA Act of 2007 in potentially leaves disaffected or
    Nigeria. aggrieved business entities at the
    It is significant that the Nigerian PPA mercies of omnipotent government
    has the potential to promote values- officials entrusted with the powerful
    based procurement with reasonable discretion of determining when and if a
    checks and balances. It also has the particular blacklisting would hold and
    capability of enabling commercial for how long.
    entities engaged in public procurement Considering that the most
    to define clear roles and responsibilities remunerative contracts in Nigeria are
    within their organizations. More often awarded by government agencies,
    importantly, the establishment of it may be imprudent for a blacklisted
    independent external oversight of business entity to pursue litigation and
    procurement activities is a radical judicial review of the blacklisting
    improvement on the old order. exercise.
    Another innovation introduced by Indeed, the question of whether to
    the Nigerian PPA is the creation of a take legal measures against the Federal
    body of common centralized rules and Government for “blacklisting” becomes
    practices governing public procurement more of a political/commercial judgment
    at the federal tier of government. It may as distinct from legal.
    therefore be said with conviction that the Be that as it may, a pursuit of legal
    avowed policy of the Nigerian remedy ought to be encouraged if the
    government as expressed in the PPA is full promises of the PPA are to be
    to bring issues of public procurement realized. However, prior to undertaking
    within the ambit of legal control and a legal action for judicial review of a
    transparent assessment.

    ©Blackfriars LLP 2008. All rights reserved. This document is for general guidance only. Definitive advice
    should be sought from counsel if required. Blackfriars LLP is a Nigerian law firm with a representative
    office in Toronto, Canada.
    WWW.BLACKFRIARS-LAW.COM

    blacklisting exercise, attention must be d. The relief being sought.


    paid by affected business entities to the
    grounds for which the Bureau has
    debarred that business entity from For further inquiries, please contact:
    public procurement in Nigeria.
    Although the PPA is silent on the Ms. Nkeiru Onyeaso
    grounds for overturning disbarment of Email: Nkay@blackfriars-law.com
    business entities, it stands to reason that Tel: +234 808 718 0833
    the general rules of fair hearing and due Fax: +234 1 2694781
    process would constitute valid grounds
    for an application to overturn a Dr. Pius Okoronkwo
    disbarment order. Email: pius@blackfriars-law.com
    Business entities in Nigeria which Tel: +647 831 7487
    have been blacklisted by the Bureau may Fax: +234 1 2694781
    go either by way of an application for
    judicial review or if the PPA is Dr. Chidi Oguamanam
    applicable, raise a challenge on the Email: chidi@blackfriars-law.com
    grounds of non-compliance with the Phone: +234 1 739 0397 (Lagos)
    PPA. With regards to the former, an Phone: +1 902 494 7125 (Halifax)
    appeal may be filed at the Federal High Fax: + 234 12694781
    Court in accordance with general
    principles of Nigerian law regarding
    decisions or actions of government
    agencies under section 251(1)(r) of the
    This newsletter has been sent to you by
    Constitution FRN 1999.
    BLACKFRIARS LLP, a full-service law
    With respect to circumstances where firm, in the genuine belief that its
    the PPA is applicable, it is advisable to contents would be of interest to you. If
    issue a 30 days pre-action notice to the you have received this newsletter
    Bureau before any suit is commenced. incorrectly, or if you do not want to
    Section 14(1) of the PPA stipulates that receive further information about legal
    the pre-action notice against the Bureau developments in Nigeria and West
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    a. The cause of action; unsubscribe from future newsletters
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    plaintiff; and

    ©Blackfriars LLP 2008. All rights reserved. This document is for general guidance only. Definitive advice
    should be sought from counsel if required. Blackfriars LLP is a Nigerian law firm with a representative
    office in Toronto, Canada.

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