Ghana

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1 Legislative framework

1.1 What legislative and regulatory provisions govern public procurement in your jurisdiction?

The main legislation that governs public procurement in Ghana is:

the Public Procurement Act, 2003 (as amended); and
the Public Procurement Regulations 2022 (LI 2466).

The Public Procurement Act provides a framework for the procurement of goods, works and services by public entities in order to secure the judicious, economic and efficient use of state resources in procurement.

The Public Procurement Act establishes the Public Procurement Authority (PPA) as the regulatory authority in charge of public procurement in Ghana.

The Public Procurement Act is applied in conjunction with some sector-specific procurement laws.

1.2 Do any special regimes apply in specific sectors (eg, utilities, defence)?

The Public Procurement Act is applied in conjunction with certain sector-specific laws on public procurement, including:

the Renewable Energy 2011 (Act 832), as amended by the Renewable Energy Act 2020 (Act 1045), which established a competitive procurement scheme and a net metering scheme in respect of electricity generated from renewable energy sources;
the National Premix Fuel Committee Regulations 2016 (LI 2233), which facilitate the procurement and distribution of premix fuel to fishing communities in the country;
the Financial Administration Act 2003 (Act 654), which is applied in conjunction with the Public Procurement Act to govern the acquisition, receipt, custody, control, issue and disposal of government stores;
the Public Financial Management Regulations 2019 (LI 2378), which is applied in conjunction with the Public Procurement Act for the purpose of making requisitions for:
- commitment expenditure in cases of public contracts or for additional payments under existing public procurement contracts; and
- purchase requisitions for capital expenditures in public corporations and state-owned enterprises; and
the Arms and Ammunitions Act, 1972 (NRCD 9), which regulates the import and export of arms and ammunition into the country.

1.3 Which bilateral or multilateral instruments or treaties with effect in your jurisdiction (if any) have relevance for public procurement?

The Public Procurement Act permits compliance with the international procurement requirements of international bodies where the funding (concessionary or grant funding) for such procurement:

is from international bodies; and
is subject to the prior review of, and to ‘no objection' of the procurement procedure by, the PPA.

2 Scope of application

2.1 What kinds of entities fall within the scope of the public procurement rules in your jurisdiction? Do any exemptions apply?

The Public Procurement Act applies to the procurement of goods, works and services, financed in whole or in part from public funds, except where the minister responsible for finance decides that it is in the national interest to use a different procedure. The following entities fall within the scope of the law:

central management agencies – that is:
- the Public Services Commission;
- the Office of the President; and
- the Office of the Head of the Civil Service;
government ministries, departments and agencies;
subvented agencies;
governance institutions;
state-owned enterprises, to the extent that they utilise public funds;
public universities, public schools, colleges and hospitals;
the Bank of Ghana and financial institutions such as public trusts, pension funds, insurance companies and building societies which are wholly owned by the state or in which the state has a majority interest; and
institutions established by the government for the general welfare of the public or community.

Where the minister decides that is in the national interest to use a different procedure, the minister must define and publish in the Gazette the method of procurement to be followed in order to serve the interests of the economy.

2.2 What kinds of contracts fall within the scope of the public procurement rules in your jurisdiction? Do any exemptions apply?

The Public Procurement Act applies to goods procurement contracts, works procurement contracts, service procurement contracts and concession contracts which are financed in whole or in part from public funds. The law also applies to the disposal of public stores and equipment. The law may also apply to contracts and procurement which are supported with funds or loans taken or guaranteed by the state and foreign aid funds, except where the applicable loan agreement, guarantee contract or foreign agreement specifies the procedure for the use of the funds.

2.3 What financial thresholds must be met for specific contracts to fall within the scope of the public procurement rules in your jurisdiction? Do any exemptions apply?

The schedules to the Public Procurement Act set out the financial thresholds and the procurement methods to be adopted based on:

the estimated contract value; and
the nature of the contract.

The schedules specify thresholds for ministries, departments and agencies with corresponding approving authorities.

2.4 Do any rules apply in regard to contracts which fall below the relevant financial thresholds?

No. The financial thresholds for the applicable methods have no gaps. The least will be a price quotation which indicates a value of:

up to GHS 100,000 (goods);
up to GHS 200,000 (works); and
up to GHS 50,000 (technical services).

2.5 Do any special rules apply to certain types of agreements (eg, concession contracts, framework agreements)?

Framework agreements are permissible in accordance with:

the Public Procurement Act;
the Public Procurement Regulations; and
the guidelines of the Public Procurement Authority.

Framework agreements may be used with any of the procurement methods specified under the Public Procurement Act.

Under the Public Procurement Regulations, framework agreements are used in a single supplier or multiple supplier framework. The regulations stipulate that framework agreements must be established as the first stage of a two-stage contracting process.

2.6 Do any special rules apply where the supplier is a foreign entity?

No.

2.7 Do any anti-avoidance rules apply in your jurisdiction?

No.

3 Preliminary stages

3.1 What initial engagement with the market will a procuring entity typically undertake in advance of launching a tender procedure? What rules and requirements apply in this regard?

The procuring entity should have prepared a procurement plan which includes:

the contract packages;
the estimated cost of the contract packages; and
the procurement method to be adopted.

The procuring entity will conduct market research to gather information on:

the availability of the goods or works or services which it intends to procure; and
the sources from which they may be procured.

The procuring entity will also determine the budget available for the procurement, bearing in mind its financial capacity and the limitations set by the government.

The Public Procurement Authority (PPA) as the regulatory body is mandated to ensure that all such initial engagements are:

transparent;
fair;
very competitive; and
devoid of preferential treatment.

3.2 How are invitations to participate in a tender made public in your jurisdiction?

Invitations to participate in a tender are made public through advertisement in channels such as:

the Official Gazette;
national and local newspapers;
the PPA's website; and
the procuring entity's website.

3.3 What criteria determine eligibility to participate in a tender? Do any exemptions apply?

The invitation to tender sets out the eligibility requirements for each tender. Generally, a tenderer should possess all aspects necessary to perform the procurement contract, including:

professional, technical and environmental qualifications;
financial resources;
equipment and other physical facilities;
managerial capability;
reliability;
experience in the procurement object;
reputation; and
adequate personnel.

The tenderer must also:

have the legal capacity to enter into the contract; and
meet all ethical and other standards applicable in the country.

3.4 Can the number of potential participants in a tender be restricted in your jurisdiction?

Yes, the Public Procurement Act sets out guidelines for restricting the number of participants in a tender. The procuring entity may restrict the number of participants based on specific eligibility criteria such as financial or technical qualifications or any other relevant factor. The Public Procurement Act also allows for prequalification of tenderers, which essentially narrows down the number of tenderers in a tender process.

3.5 Do any special incentives apply to promote the participation of small and medium-sized enterprises in tenders in your jurisdiction?

Yes. The government and procuring entities also encourage and require the use of small and medium-sized enterprises (SMEs) for subcontracts under prime contracts. This provides SMEs with an opportunity to indirectly participate in public contracts. This is usually in the form of margins of preference in the evaluation process. This means that bids from SMEs may be given an advantage in terms of evaluation criteria or pricing.

Various government agencies and institutions – such as the National Board for Small Scale Industries – also offer business support services to SMEs that may be interested in public procurement, such as:

advice on bidding processes; and
access to information about upcoming business contract opportunities.

3.6 What rules and requirements apply in regard to the formulation of technical specifications used as part of a tender procedure?

The Public Procurement Act requires that the invitation to tender include the nature and technical specifications required for the tender in sufficient detail to enable effective responses to the invitation.

3.7 Are prospective tenderers which have assisted in the preparation of the tender restricted from participating in the tender procedure? If they are, what requirements are there on procuring entities to manage this?

Yes. Prospective tenderers that have assisted in preparing the tender documents may be restricted from participating in the tender procedure where their participation raises a disqualifying conflict of interest in the procurement process.

The Public Procurement Act requires that parties which have assisted in preparing the tender document be excluded from the tender procedure to ensure fair competition. Prospective tenderers are also required to disclose any assistance that they may have provided to the procuring entity in the preparation of the tender.

The procuring entity must also:

keep confidential information provided by tenderers during the preparation of the tender; and
not share this confidential information with other parties that may have conflicts of interest.

4 Governing principles

4.1 What key principles govern public procurement in your jurisdiction?

The Public Procurement Act sets out the key principles that should govern public procurement. The Public Procurement Authority (PPA) is vested with the power to ensure that public procurement is carried out in a fair, transparent and non-discriminatory environmentally and socially sustainable manner. The PPA is also required to:

ensure good faith;
have regard to public policy; and
avoid conflicts of interest in public procurements.

4.2 What requirements and restrictions apply with regard to the impartiality and independence of the procuring entity, including conflicts of interest?

The Public Procurement Act requires that bid processes be fair, open and transparent.

A procurement entity may exclude a tenderer from the procurement process due to a conflict of interest. Also, where a tenderer has a disqualifying conflict of interest, the affected party may be given the opportunity to remedy the conflict of interest in accordance with the relevant procedures of the procurement entity concerned.

A decision of a procurement entity to exclude a tenderer from the procurement process by reason of conflict of interest and the reasons for the exclusion must:

be included in the record of procurement proceedings; and
be promptly communicated to the tenderer concerned.

5 Procedures

5.1 What different types of tender procedures are available in your jurisdiction? What are the advantages and disadvantages of each?

The law provides for:

competitive tendering (international or national; requests for quotation and restricted tendering);
single-source procurement;
framework contracting; and
the selection of consultants (quality and cost based, quality based, least cost, consultant's qualification, fixed budget, single-source selection).

Competitive tendering (international or national):

Advantages:
- There is a high level of competition, thus ensuring value for money.
- Transparency and fairness are promoted due to the open nature of the process.
Disadvantages:

It usually requires more time and resources to tender and evaluate responses, particularly if a large number of bids are received and need to be evaluated.
It may not be suitable for complex or specialised procurements where specialised expertise is crucial.

Restricted tendering:

Advantages:

It allows for pre-qualification of suppliers based on criteria, ensuring that only qualified suppliers are invited to submit bids.
There is a shorter evaluation process compared to open tendering.

Disadvantages:

There is reduced competition compared to competitive tendering.
Potential qualified suppliers may be excluded due to limited invitation.

Single-source procurement:

Advantages:
- This is appropriate for cases where only one supplier can meet the project's unique requirements (eg, proprietary technology).
- It saves time compared to other tendering methods.
Disadvantages:
- There is reduced competition, which could lead to higher costs.
- There can be a lack of transparency if the process is not properly justified and documented.

5.2 What rules and requirements apply with regard to the direct award of contracts, without a tender procedure?

Any entity that is subject to the procurement laws must comply with the Public Procurement Act. A direct award that does not comply with the Public Procurement Act will constitute a breach.

5.3 What rules and requirements apply to the choice of tender procedure? What other factors play a role in this regard?

The Public Procurement Act generally requires tenders to be competitive. Other methods may be used when the criteria for those rules apply. Furthermore, the choice of tender procedure may also be impacted by the thresholds prescribed; thus, a price quotation will typically be for low-value goods which are readily available and for which there is an established market.

5.4 How do the different types of tender procedures typically unfold? What are the typical timeframes for each?

The timeframe depends to a large extent on the way the procurement is handled by the procurement entity. However, typically most tenders may be advertised for between 21 and 30 days, with submissions expected within another 30 days of the purchase of tendering documents. Tender evaluations can also take between 30 and 90 days.

Due to the approvals required by either the entity tender committee or the Public Procurement Authority (PPA), an additional 30 to 45 days may be needed for approvals.

Notification of the award and the contract award may take about 30 days.

5.5 What rules and requirements apply with regard to contract award criteria?

A successful tenderer must be notified within 30 days of acceptance of the tender, which is after the evaluation report has been duly approved. Any procurement contract to be signed must be signed within 30 days of notice of acceptance of the tender.

A failure by the successful tenderer to sign the contract within 30 days will result in the forfeiture of the contract. The procurement entity is then at liberty to engage another tenderer from among the remaining tenderers.

The procurement entity is mandated to give notice of the procurement contract to the unsuccessful tenderers. The notice must include details of:

the successful tenderer; and
the commencement of the contract.

For contracts above the specified thresholds, the procurement entity must also publish the contract in the Public Procurement Bulletin.

5.6 On what grounds will tenderers be excluded from a tender procedure?

The Public Procurement Board of the PPA may suspend an entity from engaging in any public procurement for a specified period where it has been determined:

either by the Public Procurement Board itself or by a procurement entity that such person should be suspended; or
after a special audit or by a court that such a person has been engaged in corrupt or fraudulent practices.

5.7 Are tenderers permitted to negotiate with the procuring entity as part of the tender procedure? If so, what rules and requirements apply in this regard?

Negotiations are prohibited between the procurement entity and tenderers with respect to a tender submitted by the tenderer. However, after notification of award to a particular tenderer, there is room for negotiation. For instance, where the lowest evaluated responsive tender exceeds the budget for the contract by a substantial margin, the procurement entity may, subject to approval by the relevant tender review committee and guidelines, negotiate a contract with the lowest evaluated to try to obtain a satisfactory contract.

5.8 What rules and requirements apply to the evaluation of tenders? What factors other than price play a role in this regard?

The Public Procurement Act provides the rules for the evaluation of tenders, which stipulate that a tender is responsive if the tender conforms to the requirements of the tender.

The Public Procurement Act permits the invitation to tender to establish the requirements for the evaluation.

Evaluations are typically done in three stages:

preliminary responsiveness (usually corporate documentation and statutory compliance such as tax clearance, social security and sector-specific certificate requirements);
technical responsiveness (compliance with the subject matter of the procurement); and
financial evaluation (matters pertaining to price) based on the requirements of the tender.

Thus, the requirements of the invitation govern the determination.

The Public Procurement Act stipulates that a criterion that has not been disclosed in the invitation to tender cannot form the basis for an evaluation. The successful tenderer must be selected on the basis of having the lowest-evaluated tender price, which must be based on objective and quantifiable criteria and given relative weight. The procurement entity is permitted to include margin of preference in favour of national entities if it considers this necessary.

5.9 Do any special rules or requirements apply with regard to abnormally low bids?

No. However, based on the criteria established in the invitation, the least-evaluated tender may not be the tender with the lowest price.

5.10 How is the winning tenderer selected and what is the process for awarding the contract?

The winning tenderer in a public procurement is selected through a process approved under the Public Procurement Act. The successful tenderer should have submitted a tender proposal to an advertised tender or have privately invited one to do so. When the bids are opened, there is a technical and financial evaluation of responsive bids. The technical evaluation assesses the technical proposal from the tenderers according to the predetermined evaluation criteria; while the financial evaluation determines the most economically advantageous tender.

The evaluation committee recommends for acceptance by the appropriate entity the tender that has been ascertained to be the lowest-evaluated tender in accordance with the Public Procurement Act.

Notice of award of the contract is given to the successful tender by the procuring entity. Where the tender requires that the supplier or contractor whose tender has been accepted sign a written procurement contract conforming to the tender, the procuring entity may further negotiate the terms of the contract or seek clarification from the tender before executing the contract. The procuring entity and the supplier will sign the procurement contract within 30 days of notice being given to the successful tenderer.

5.11 What is the process for notifying unsuccessful tenderers of the outcome of the tender procedure?

The procuring entity gives notice of the procurement contract in writing to unsuccessful suppliers and contractors. The notice specifies the name and address of the successful tenderer and the contract price.

5.12 Is joint procurement possible? If so, in what circumstances is it typically used and what rules and requirements apply in this regard?

The Public Procurement Act does not address this directly. However, it may be possible to do so in terms of the general tenure of applicable procurement laws.

5.13 What rules and requirements apply in regard to a procuring entity's record keeping during a tender procedure?

The procurement entity is required under the Public Procurement Act to keep records of the entire tender procedure, which are subject to inspection by:

the Public Procurement Board of the PPA;
an investigator appointed by the Public Procurement Board of the PPA; or
the auditor general.

The record, including portions of it, may be made available on request to entities that submitted bids under the tender. However, certain information may not be disclosed if the non-disclosure:

is essential in the interests of national security; or
is contrary to law.

The procurement entity must comply with a court order to disclose in such instances.

The procurement entity is not liable to tenderers for damages owing solely to a failure to maintain a record of procurement proceedings.

6 Modifications

6.1 What rules and requirements apply to modifications during the tender procedure – for example, to the contract specifications or conditions, to the timetable or to the members of a bidding consortium?

A tenderer may request clarifications on the tender document from the procurement entity. The procurement entity is required to respond to such request within a reasonable time before the deadline for submission of tenders, to enable all tenderers to make a timely submission of their tenders. Whenever such requests are made, the procurement entity must, without disclosing the source of such enquiries, communicate the clarification to the other tenderers. This clarification may be in the form of either:

an addendum to the tender documents; or
a modification of the tender documents.

Any such modification is binding on the tenderers.

6.2 Is the procuring entity permitted to negotiate with the successful tenderer after the contract has been awarded? If so, what rules and requirements apply in this regard?

No, once the contract has been awarded, negotiations are not permitted.

6.3 Are any contract modifications permitted post award? If so, what rules and requirements apply in this regard?

The Public Procurement Act does not deal with this directly. However, it may be possible where a fundamental error is discovered.

6.4 Can the contract be transferred to a third party post award? If so, what rules and requirements apply in this regard?

The Public Procurement Act does not deal with this directly; however, this will be subject to acceptance by the procurement entity as the contracting party.

7 Review

7.1 Which national bodies are responsible for enforcing procurement laws and regulations?

The Public Procurement Act establishes the Public Procurement Board of the Public Procurement Authority (PPA). The Public Procurement Board is the highest body of the PPA and is mandated to:

make proposals for the formulation of policies on procurement;
ensure policy implementation and human resource development for public procurement;
develop rules, instructions and other regulatory documentation on public procurement and formats for public procurement documentation; and
monitor and supervise public procurement and ensure compliance with statutory requirements.

7.2 On what grounds can a decision of a procuring entity be reviewed? Who has standing to submit an application for review?

Any supplier, contractor or consultant that claims to have suffered, or that may suffer, loss or injury due to breach of a duty imposed on the procurement entity may seek redress. The supplier, contractor or consultant may also submit an application to the procurement entity by way of complaint and then to the Public Procurement Board of the PPA for administrative review.

7.3 What is the limitation period for submitting an application for review?

An application for review must be submitted within 21 days of:

the tenderer becoming aware of the circumstances giving rise to the complaint; or
the time when the tenderer ought to have become aware of those circumstances.

7.4 Does the submission of an application for review have a suspensive effect on the tender procedure?

Not automatically; however, the PPA may order suspension if it deems this necessary and give further directions in that regard. With respect to the suspension, the PPA may suspend proceedings as it considers necessary.

7.5 What is the typical timeframe for review proceedings?

The PPA is required to issue a written decision concerning the complaint within 21 days of the start of administrative reviews.

7.6 What costs are typically incurred in review proceedings?

The PPA is empowered to:

dismiss a complaint which lacks merit; and
require the complainant to pay compensation for reasonable costs incurred by the procurement entity and the Public Procurement Board of the PPA.

7.7 What enforcement powers and remedies are available where a breach of the procurement rules is found?

The PPA may confirm or revise a decision taken by the procurement entity. It may direct a non-complaint procurement entity to comply with the Public Procurement Act or take actions in accordance with the Public Procurement Act. Furthermore, the PPA may overturn in whole or in part an act or decision of the procurement entity in breach of the act.

The procurement entity may also be ordered to pay the complainant compensation for reasonable costs incurred by such person.

7.8 Can the review decision be appealed? If so, what is the process for doing so?

A decision taken in administrative review may be appealed to the High Court.

8 Privatisations and public-private partnerships

8.1 Do any special rules apply with regard to privatisations in your jurisdiction?

Yes, in Ghana, the Public Enterprises (Privatisation and Divestiture) Act, 1993 (Act 452) deals with privatisations. The Public Enterprises (Privatisation and Divestiture) Act sets out the legal framework for the privatisation and divestiture of state-owned enterprises. It also establishes the Divestiture Implementation Committee, which is responsible for overseeing the privatisation process.

8.2 Do any special rules apply with regard to public-private partnerships in your jurisdiction?

The Public Private Partnership Act, 2016 (Act 912) governs public-private partnerships (PPPs) in Ghana. The Public Investment Unit set up under the Public Financial Management (Public Investment Management) Regulations 2020 (LI 2411) is the focal unit for PPP projects for the contracting authority in Ghana. The unit is responsible for coordinating and overseeing the implementation of PPP projects.

9 Environmental, social and governance

9.1 How are ESG factors influencing public procurement in your jurisdiction? What specific concerns and considerations should be borne in mind in this regard?

The Public Procurement Act and the Public Financial Management (Public Investment Management) Regulations require the head of a procurement entity to ensure that tenders comply with environmental and social sustainability requirements. ESG factors are gaining ground in Ghana.

10 Trends and predictions

10.1 How would you describe the current public procurement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The landscape is fairly robust, save for concerns about the excessive use of restricted tendering or sole sourcing by some government ministries and agencies.

In terms of trends, there has been increased focus on the incorporation of local content in tenders to support local businesses. In certain sectors of the economy, such as energy and mining, local content laws have been promulgated to ensure compliance. In general, however, there is a greater push for consideration for local content – even in international competitive tenders – in order to empower local businesses. The trend is expected to continue.

11 Tips and traps

11.1 What are your top tips for participants in public procurement procedures in your jurisdiction and what potential sticking points would you highlight?

From our experience, the key reasons for tenderers being unsuccessful relate to mistakes pertaining to the following issues:

adherence to timelines;
pricing mistakes and samples;
required documentation;
mistakes relating to the tender/bid submitted;
errors relating to statutory compliance issues; and
the adequacy of tender security.

Ensuring that submissions take account of these issues and appropriately address them, and obtaining professional advice on submissions, will lead to a higher likelihood of success in the tender.

11.2 What are your top tips for procurers in your jurisdiction and what potential sticking points would you highlight?

Our top tips are:

to ensure strict compliance with the requirements of the tender; and
to consult legal and other professionals on aspects pertaining to their respective expertise in order to ensure an effective response to the tender.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.