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RISK MANAGEMENT

Outline the Procurement Risks Planning Inputs Required for the Procurement of a Specified Work, Service or Goods for a Stated State Owned Organization in the Republic of Ghana.
GROUP THREE

ANSWER
Organization/Entity: KUMASI POLYTECHNIC Procurement Category : Goods

Item: Split Air conditioners (200 number) (Value at: Gh 100,000.00) Act 663: The Public Procurement Act 2003 is the Legal Framework which regulates and minimises risk in Public Procurement in Ghana

PRESENTATION OUTLINE Introduction


Possible Risk Areas Identifying the need and planning the purchase Developing the specification Selecting the purchasing method Purchasing documentation Inviting, clarifying and closing offers Evaluating offers Selecting the successful tenderer Negotiations Contract management Evaluating the procurement process Disposals

Identifying the need and planning the purchase

Risk
Understatement of the need

Likely Legal Frame/ Act consequences 663

Action /Remedy

Purchase of unsuitable product or Section 21 of Act Analyse need accurately service Procurement Regulation Money wasted Procurement Manual Need not satisfied Section 33 (Specification Requirement) Greater expense Poor competition Section 21 of Act Procurement Regulation Procurement Manual Section 33 (Specification Requirement) Analyse need accurately Use functional and performance requirements

Overstatement of the need

Misinterpretation of user needs Totally unacceptable purchase or Section 21 of Act not most suitable product or Procurement Regulation service
Time lost Increased costs Procurement Manual Section 33 (Specification Requirement)

Improve consultation with users


Obtain clear statement of work and definition of need

Possible downtime

Identifying the need and planning the purchase (cont.) Likely Legal Frame/ Action Risk
consequences Act 663 /Remedy
Insufficient funding Delay in making the purchase Additional costs for re-tender Impractical timeframe Inadequate responses from tenderers Section 21 Prepare annual Proc Plans Section 21 Section 47 (2,3) Section 48 (c) Obtain appropriate approvals before undertaking process Improve planning Improve forecasting, planning and consultation with users

Reduced competition
Delivery schedule not met Non conformance with National Standards Probity issues Not being cleared at the Port of entry. High energy consumption Increased procurement costs Misuse of resources

Improve communication with potential tenderers

Procurement Manual (pg 31 32) Ghana Energy Commission LI Adherence to Energy Commission 1815 (2005) and Standard Authority standards Section 77 (Confidentiality) Implement best practice policies, guidelines and practices Maintain ethical environment

Section 86 (Code of Conduct)Section 91 (Statutory Most suitable product not obtained Audit), Section 92 (Offenses Relating to Procurement) Unethical conduct Section 93 (Corrupt Practices) Procurement Manual

Improve training of personnel


Put suitable controls and reviews in place Consider using a probity adviser Improve communication with

Developing the specification


Risk
Narrow definition or commercial specification (eg. use of brand name)

Likely Legal Frame/ consequences Act 663


Fewer alternatives Most suitable product or service may not be obtained Increased costs Section 33 (Description of Goods Works & Services) Regulation (Pg 18)

Action /Remedy
Define the specification in terms of required outputs Use functional and performance specifications

Definition of inappropriate product Need not satisfied or service Time lost Increased costs Possible downtime Biased specification Inadequate responses from tenderers Claims of unfair dealings

Section 33 (Description of Goods Works & Services) Regulation (Pg 18)

Ensure specification is consistent with needs analysis Improve market knowledge Use functional and performance specifications

Section 33 (Description of Goods Works & Services) Regulation (Pg 18)

Use functional and performance specifications Implement a control mechanism to review specification before release

Developing the specification (Cont)


Risk
Inadequate statement of requirements

Likely Legal Frame/ consequences Act 663


Variety of offers Insufficient responses Products offered not meeting needs Difficult to evaluate

Action /Remedy

Section 33 (Description of Goods Be familiar with requirements Works & Services) Use functional and performance Regulation (Pg 18) specifications Use an Expression of Interest or Request for Information to clarify requirements (be careful not to infringe intellectual property rights or copyright)

Selecting the purchasing method Likely Legal Frame/ Risk consequences Act 663
Failure to identify potential sources Lack of offers from suitable tenderers Part IV of Act 663

Action /Remedy

Thresholds

Improve procurement planning processes Improve market knowledge Seek industry participation Use the Industry Capability Network (ICN)

Selecting inappropriate method

Need to seek offers again Possible cost variations Failure to obtain value for money

Part IV of Act 663 Thresholds in Schedule 3

Improve implementation of procurement policies, guidelines and practices Improve tender documentation and clearly identify the evaluation criteria in Request for Tenders Provide staff with appropriate training and experience

Purchasing documentation
Risk
Likely Legal Frame/ consequences Act 663 Action /Remedy
Use standard documentation prepared by Crown Law Select appropriate documentation for purchase type (ie. goods, services, goods and services, or information technology related) Improve tender planning Assess and allocate risks appropriately Consult with Crown Law Use commercially acceptable terms Provide staff with appropriate tender planning and procurement skills Terms and conditions unacceptable Loading of costs in offers Section 49 (Provision of STD) to tenderers Schedule 4 of Act Having to modify tender terms and conditions Section 50, 51, 52 Disruption Engaging Suppliers in capacity Programmes

Low response

Purchasing documentation (cont.)


Risk
Likely Legal Frame/ consequences Act 663
Section 51 Section 53, 56 Regulation56 Variations in offers Having to provide clarifying information, causing delays in tender closing Additional costs

Action /Remedy
Ensure staff have appropriate tender planning and documentation training and experience Improve tender planning and preparation Review tender documents before issuing them and ensure evaluation criteria contain the critical factors on which assessment of tenders will be based

Providing inadequate information Loading of costs in offers

Inviting, clarifying and closing offers


Risk
Failure to adequately address enquiries from tenderers

Likely Legal Frame/ consequences Act 663


Claims of unfair practices Offers with qualifications by tenderers Withdrawal of offers Section 79, 80 and Regulation 79 Procurement Manual

Action /Remedy
Implement standardised procedures for responding to enquiries Provide staff with appropriate tender management training and experience Respond in a timely manner to enquiries

Allow adequate time for tenderers to respond


Actual or perceived favouritism in Complaints from tenderers providing information Withdrawal of offers Section 77 (Confidentiality) Section 51 (Clarification of Tenders) As above Answer queries in writing and provide copies to all potential tenderers Ensure that all potential tenderers are provided with any addenda

Inviting, clarifying and closing offers(con


Risk
Actual or perceived breach of confidentiality

Likely Legal Frame/ consequences Act 663


Complaints from tenderers Mistrust by tenderers Section 79, 80, 92

Action /Remedy
Establish formal security procedures Train staff in their obligations Perform regular audits and reviews of security processes Advise tenderers of security measures Use appropriate tender advertisement strategy to increase competition (eg. consider advertising tenders in other publications as well as the local paper) Consult with the ICN to identify potential tenderers Provide potential tenderers with advance notice of tender requests Improve tender documentation and specifications Allow sufficient time for tenderers to respond

Insufficient number of responses

Need to undertake process again Increased costs Delayed delivery to the client Poor value for money due to limited competition

Section 40, 41 Regulation

Inviting, clarifying and closing offers(con


Risk
No response from known quality suppliers

Likely Legal Frame/ consequences Act 663


Reduced competition Increased costs of products or services Section 40, 41

Action /Remedy
Actions as above for insufficient number of responses Improve your market knowledge

Review specifications or conditions


Seek feedback from known suppliers on their non-response

Evaluating offers
Risk
Failure to follow effective evaluation procedures

Likely Legal Frame/ consequences Act 663


Section 48, 50 (d),, cg, h, ) etc

Action /Remedy
Provide staff with appropriate tender assessment and evaluation training and experience

Inconsistent evaluations

Possible complaints from tenderers Section 19 Subjective not objective evaluation Section 79, 80 of offers

Improve tender assessment and evaluation processes


Maintain, audit and review evaluation procedures Ensure that Evaluation Committee members declare any conflicts of interest

Breaches of security

Claims of unethical or unfair practices Loss of faith with tenderers

Section 77, Section 79, 80, 92 Section 89

Maintain, audit and review security procedures Provide staff with appropriate training and experience and monitor performance Ensure that Evaluation Committee members understand and sign Confidentiality Agreements

Evaluating offers (cont.)


Risk
Offers fail to meet needs Need to call tenders again Additional costs Delay in delivery

Likely Legal Frame/ consequences Act 663


Section 33, Regulation on specification design

Action /Remedy
Improve market knowledge Improve tender documentation Conduct market research Develop functional and performance specifications

Failure to identify a clear winner Decision made on subjective grounds

Claims of unethical and unfair behaviour Complaints from tenderers

Section 93 Section 80,82, 89

Ensure evaluation criteria contain the critical factors on which the assessment of tenders will be based and that they are clearly identifiable to tenderers in tender documents Ensure evaluation criteria are appropriate and measurable Ensure that Evaluation Committee members sign Declaration of Conflict and Confidentiality Agreements

Selecting the successful tenderer


Risk
Likely Legal Frame/ consequences Act 663
Part IV Procurement Methods Regulation 35 44 Section 19, 59 Section 20 (Tender Review Boards) Section 17, 18 and Schedule One Selecting an inappropriate supplier Failure to fulfil the contract

Action /Remedy

Provide staff with appropriate tender evaluation, financial and technical skills training and commercial expertise Improve evaluation procedures

Improve evaluation criteria and clearly identify them to tenderers in tender documents
Reject unacceptable offers Perform financial, technical and company evaluations before awarding contract Procurement Review Committee to review tender and selection process prior to awarding contract Ensure users are involved in the evaluation/selection process Improve technical evaluation procedures and train staff as appropriate Procurement Review Committee to review tender and selection process prior to awarding contract

Selecting inappropriate product

Failure to meet the client's need

Section 20, 33

Negotiations
Risk
Not matching the expectations of buyer and tenderer Contract disputes Delivery delays

Likely Legal Frame/ consequences Act 663


Section 89, 79, 80, Specification design, Section 33, Evaluation Criteria, Section 59

Action /Remedy
Improve communication, including ensuring that Conditions of Contract form part of the Request for Tender Provide staff with training in contract planning and management Define terms carefully Record each party's obligations Clarify all ambiguities before signing the contract

Cost variations
Reduction in value for money Purchase of less suitable product Inefficient use of resources

Deadlock on details of agreement

Delays in delivery Need to restart procurement Possible cost of legal action

Section 89 (Investigation by the Board)

Look at alternatives to share risk Distinguish between essential and non-essential goals and requirements Establish baseline before negotiations Distinguish essential goals from others

Failure to secure mandatory conditions

Inability to finalise contract Delays in delivery Variations in cost

Section 22 (Qualification of Tenderers) Section 65 Procurement Manual (Pg 54- 62)

Inefficient use of resources

Consider variations to contract


Provide negotiators with adequate training

Negotiations (cont.)
Risk
Unfair or onerous requirements on Contract disputes the tenderer in the contract Invalidity of contract conditions Legal action Poor supplier/customer relationship Failure to reflect the terms offered Contract disputes and agreed in the contract Legal action Poor supplier/customer relationship Section 65 Section 65 Section 79, 80

Likely Legal Frame/ consequences Act 663


Procurement Manual (Pg 54- 62)

Action /Remedy
Provide negotiators with adequate training and support Negotiate commercial terms

Terms should be fair and reasonable


Check final draft of contract with successful tenderer Keep records of all negotiations and agreements

Procurement Manual (Pg 54- 62)

Contract management
Risk
Variations in price and foreign exchange Cost overruns Section 61

Likely Legal Frame/ consequences Act 663


Procurement Manual (Pg 59)

Action /Remedy
Agree on prices and the basis of prices Agree on a formula for calculating variations

Unwillingness of the supplier to accept the contract

Delays in delivery Need to restart procurement

Section 55

Seek legal redress if nonacceptance causes loss Negotiate but retain integrity of the contract

Failure of either party to fulfil the Contract disputes conditions of the contract Failure to satisfy needs Delays in delivery Downtime Legal action

Section , 78, 79, 80 Section 48, 50 Ensure good contract administration and performance management Hold regular inspections / meetings and ensure progress reports Ensure all staff know responsibilities and conditions Ensure good record keeping and documentation

Contract management(cont.)
Risk
Inadequately administering the contract

Likely Legal Frame/ consequences Act 663


Section 65 Regulation 100

Action /Remedy

Cost increases Failure of contract Full benefits not achieved Delivery of unsatisfactory product Contract/supply disputes

Maintain up-to-date agency procedures and practices Ensure all staff are suitably trained and experienced in contract planning and management

Commencement of work by the supplier before contract is exchanged or letter of acceptance issued

Potential liability to pay for unauthorised work Possibility of legal action for perceived breach of contract

Section 26, 27, 65 Regulation 26,27

Confirm verbal acceptance of contract with written advice Accept all contracts in writing Ensure approvals are received before allowing work to start

Contract management(cont.)
Risk
Likely Legal Frame/ consequences Act 663
Section 50 Section 65 (7) Procurement Manual (57) Loss or damage to goods in transit Delays in delivery Downtime Liability disputes

Action /Remedy

Include appropriate packaging instructions in specification Agree on insurance cover for supplier to provide Accept delivery only after inspection Know when title of goods is transferred to buyer

Fraud

Misuse of resources Legal action Disruption to procurement activities

Section 92,93 Section 86

Maintain an ethical environment Follow and maintain fraud control procedures

Evaluating the procurement process


Risk
Failure to evaluate procurement and management processes Failure to identify and address problems

Likely Legal Frame/ consequences Act 663


Failure to improve procurement and management processes Section 15, 17

Action /Remedy
Develop systematic evaluation methods, techniques and evaluation criteria

Procurement objectives not achieved Possible failure in the future

Section 50 (STD) Section 59 Section 47, 48

Agree on performance criteria (with supplier and customer) Develop good relationships with suppliers Include evaluation clause in the contract Implement performance management strategies

Disposals
Risk
Collusive bidding at auction

Likely Legal Frame/ consequences Act 663


Not achieving best return Claims of unethical and unfair practices Section 84, 85 Guidelines Issued by PPA Regulation 83 (Part VIII)

Action /Remedy
Set reserve prices Deal with reputable firms Include disposal clause in initial contract Maintain ethical environment

Inadequate tender management

Claims of bias and favouritism to organisations or individuals Reduction in value for money

Guidelines Issued by PPA Regulation 83 (Part VIII)

Sell by open tender Document reasons for decision Provide staff with appropriate training

END OF PRESENTATION THANK YOU

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