G. COMPLIANCE WITH 1992 CONSTITUTION AND LEGISLATION

i. Article 181, 1992 Constitution, Section 23, Financial Administration Act
Many of the contracts executed by GYEEDA with SPs have components of interest free loans granted the SPs. Article 181 (2) of the 1992 Constitution requires authorization from Parliament for Government to enter into an agreement for the granting of a loan out of any public fund or public account. Section 23(1) of the Financial Administration Act also requires authorization by Parliament for the grant of a loan by government from the consolidated funds. There is no evidence that any of the loans granted by GYEEDA received approval by Parliament. Such interest free loans granted in violation of the Constitution and the Financial Administration Act should be immediately repaid with interest to Government.

ii. Compliance with article 252 (3), 1992 Constitution, Section 7 of the District Assemblies Common Fund Act, 1994 (Act 455)
Part of the sources of funding for GYEEDA is the District Assemblies Common Fund. Article 252(3) of the 1992 Constitution requires that the moneys accruing to the District Assemblies in the Common Fund (DACF) shall be distributed among all the District Assemblies on the basis of a formula approved by Parliament. Section 7 of Act 455 also requires the Administrator to disburse monies from the DACF to assemblies. Parliament has no authority to approve disbursement of funds from the DACF to GYEEDA without an amendment of article 252(3) of the 1992 Constitution and section 7 of Act 455. The continuous payment out of the DA Common Fund without the necessary constitutional and statutory amendments since 2006 violates article 252 (3) of the 1992 Constitution and section 7 of Act 455 and is illegal.

iii. Compliance with the Public Procurement Act, 2003 (Act 663)
All proposals submitted to GYEEDA are unsolicited. There is no evidence of any competitive process leading to the selection of any of the beneficiaries. Hence, the process through which the proposals are accepted may at best be described as a single source procurement. Single source procurement under the Public Procurement Act, 2003 (Act 663) is regulated by section 40. Under section 40 of Act 663, a single source procurement may be undertaken by the Procurement entity with the approval of the Board of the Public Procurement Authority (PPA) after some stringent requirements such as restricted availability of the goods, works or services, or the exclusive right of the single source over the goods, works or services and the absence of a reasonable alternative, among others.

There is no evidence of approval by the PPA for most of the procurement of SPs by single sourcing. Even when the PPA Board attempted to approve the procurement of ACI Construction Ltd with forty eight million eight hundred and fifty two thousand Ghana cedis (GHS 48,852,000.00) at stake, in a letter dated 13th December, 2012, the PPA went under section 72(5)(c) of the Act 663. Section 72(5)(c) provides "the procurement entity may select consultants by inviting proposals from a single consultant where it is a follow-up assignment." ACI Construction cannot qualify as consultants and the contract is certainly not a follow up one. There was no original or initial contract regularly obtained through the normal procurement processes between GYEEDA and ACI.

Good legal advice from office of the Attorney and Minister of Justice in the procurement processes would have prevented flagrant breaches of provisions of the Public Procurement Act. In an instance in which there is evidence of reference to the office of the Attorney General and Minister of Justice in negotiation of a contract between GYEEDA and the Retired Mine Workers Foundation (REMWOF), the advice from the office of the Attorney General in a letter dated 25/10/12 with file number D10/SF.8 warned the Hon. Minister of the MOYS of the need to adhere to the Public Procurement Act to prevent breaches of the law. Parts of the comments from Hon. Anthony Gyambiby, Deputy Attorney General and Deputy Minister of Justice states that "it is vital for GYEEDA to write to the Public Procurement Authority for permission to sole source the Retired Mines Workers' Foundation (REMWOF) to undertake the implementation of the project per their proposed agreement. Without the said permission, the Public Procurement Act 2003 would be breached."

The Committee observes therefore that the use of single source procurement processes for all the modules contracted was either as a result of non involvement of the Office of the Attorney or uninformed and inadequate legal advice from the Office of the Attorney General and Minister of Justice, in the instances in which the Office of the Attorney General was involved.