 The
Ghana Publishers Association (GPA) has dragged the Ministry of
Education to court seeking an order to quash an addendum of the ministry
which has reversed Ghana’s book publishing policy.
The
plaintiffs are among other things praying the court for an injunction
restraining the Minister of Education from reversing the book policy
without due process and sufficient and proper consultation with
stakeholders, including the GPA.
In addition, the plaintiffs are
praying the court for an order of mandamus to compel the Ministry of
Education to apply the long-standing book policy in evaluation and award
of tenders submitted.
In an affidavit in support of the suit,
the plaintiffs said the action arose out of a Textbook Development and
Distribution Policy for Pre-Tertiary Education of October 1999 by the
Ministry of Education, Science and Sports.
According to the
affidavit, the relevance of the book policy arose as a result of the
current tender from the MOE dated February 23, 2012, for the supply of
books for basic schools.
It said after the current tender was
issued in February this year, 42 members of the association submitted
bids, the average cost to each member for preparing manuscripts, paying
authors, charges, submitting security among other requirements amounting
to GHC 50,000.
The affidavit noted that on the whole, each
member bid for an average of four lots meaning each member of the
association spent GHC 200,000 on each tender thus the total cost for
members of the association for participating in the tender was about GHC
8,000,000.
It said after the tender was issued and during the course of the tendering process, the MOE issued a number of addendums.
“In
addendum 1, the MOE affirmed the number of publishers that would be
selected for the supply of a lot (after the conclusion of the tender) as
five, consistent with the book policy.”
The affidavit said the
book policy had a long history and had been the long-standing policy of
the MOE since at least 1999. The policy, it said had been the
authoritative convention in text book procurement in Ghana and was
established following extensive nation-wide consultation by the MOE with
all stakeholders including the GPA, educational institutions,
development partners and experts in 1998.
“The fact is that book
publishing is capital-intensive. The result is that without
opportunities to win awards from government to supply books, almost all
our members cannot survive and the book publishing industry in Ghana
would die.”
The affidavit observed that book publishing has had
the objective of increasing both the quality and variety of books in
Ghana and of supporting Ghanaian-owned book publishing companies towards
effective and efficient achievement of the objectives of public
procurement of books.
It noted that at all material times, the
minister’s conduct led members of the association to believe that the
tender was subject to the book policy.
It said four months after
the issuing of the current tender; the MOE announced a sudden reversal
of the book policy by issuing a third Addendum.
By that action
---the purported unilateral reversal of the book policy, the minister
sought to give a whole lot under the current tender to only one
publisher instead of five.
“To say this sudden reversal came as
surprise would be an understatement. None of us was expecting or could
have foreseen this. The fact is that the defendant minister failed to
warn or give prior notice of his “u turn” to any of the members of the
association at any material time.”
It said members of the
association responded to the current tender as aforementioned largely
because at the time the tender was issued in February 2012 and at all
material times, the book policy was in force.
“With the book
policy in force, each member of the association knew that it had a
greater probability of being awarded a contract under the tender. That
given the cost of participation in the tender, the book policy was a key
factor that each member relied on to make a decision to bid. “
“If
members of the association had been made aware at all times that a lot
would be awarded to one publisher only instead of five, they would not
have participated in the tender as the reversal increased the chance of
losing the tender for each member,” it said.
“The members of the
association relied on this to bid and had legitimate expectation that
the policy (Addendum 1) would be complied with. Therefore, the defendant
Minister of Education is stopped from reversing the policy after the
members had each submitted tender documents, proof of insurance,
manuscripts, and paid the requisite fees.”
According to the
affidavit, the MOE was required under the Public Procurement Act to
secure a judicious, economic and efficient use of state resources in the
procurement of the books in a fair, transparent and non-discriminatory
manner.
The MOE, the affidavit said had “breached this duty and
exceeded his authority in reversing the policy. An award that is shared
between five qualified publishers is more likely to fulfill the
objectives of public procurement than award that is given to only one
publisher.”
It said granted for the sake of argument only the
Ministry had discretion to unilaterally reverse the book policy in the
middle of a tender, such discretion must be exercised in accordance with
articles 23 and 296 of the 1992 Constitution and could not be
arbitrary, sudden and in the middle of a tender.
The action of
the ministry, the affidavit said explicitly contravenes Articles 23 and
296 of the 1992 Constitution, was against both the letter and spirit of
the Constitution and the Public Procurement Act, 2003 (Act 663). |
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