Dr Margaret Rose
Last month, I wrote on “When Directors must say no” citing the SporTT v Paddington judgment, where Justice Ricky Rahim reminded us that “boards of state enterprises are not rubber stamps.” That case, which resulted in directors being held liable for their failure to scrutinise ministerial instructions signalled what should be the end of an era of passive or politically-sycophantic boardrooms.
However, the challenges of public sector governance in 2025 can no longer be met by tweaking traditional corporate governance frameworks for public use. The landscape is now far more complex, and some might argue, more treacherous. Since the full proclamation of the Public Procurement and Disposal of Public Property Act (PPDPPA), board remit is no longer the sole focus of concern. A new and more complex layer of accountability has emerged. One that shifts the procurement spotlight to public officers, and in particular, the Named Procurement Officer, the Accounting Officer and officers serving on the Procurement and Disposal Advisory Committee (PDAC).
In the ongoing Eastman v CEPEP case with material events occurring under the new regime, a contractor challenged the decision to cancel its contract and the backlash was swift, including challenges to the extension of several contracts just before the election. The court has since referred some matters to the DPP for criminal investigation. I make no comment on the merits, as the case is still before the courts, and I have not seen the pleadings. My reflections are drawn only from what has been reported in the press. From that reporting, one deeper governance concern appears to have gone largely unasked:
* When the contract was extended, where were the statutory actors?
* Where were the Named Procurement Officer, the Accounting Officer, the PDAC?
* And when the decision to cancel Eastman’s contract was taken, where were they then?
* If these officers were bypassed, then what is the point of the PPDPPA framework?
* Are our procurement officers genuinely empowered, or are they window dressing while the real decisions happen elsewhere?
These questions go beyond the rights and wrongs of a civil dispute. They go to the heart of public sector governance under the PPDPPA regime. If the actors created by law are not visibly and actively engaged in procurement proceedings, then the system risks replicating the very governance vacuum that the Act was meant to cure.
In this case, as in all cases under the PPDPPA era, the questions are no longer around board responsibility but when and in what circumstances, public officers, with the statutory responsibility for procurement, must say no. No to ministers, to boards, to each other, and to longstanding practices that no longer fit within the PPDPPA regime.
The cost of courage
But let us be honest: this is easier said than done. In our cultural setting, where loyalty and deference to “the chain of command” often trump legal forms, saying no can feel like career suicide. Public officers know the risks: stalled promotions, sudden transfers, administrative leave, manufactured disciplinary charges and non-renewal of contracts. And should they decide to say no and seek redress for retaliatory action before the courts, vindication may come only after years of stress and costly litigation. In that time, the mortgage still needs to be paid. The law empowers them to say no, but the system does little to cushion the personal cost.
It is therefore not enough to tell officers they can say no; we must show how they can do so wisely and lawfully, while protecting themselves. And we must find ways, as professionals, advisors and public officers to create a community of support. That is, of course, if we are serious about transforming public procurement.
Checklist for Courageous Public Officers
Here is a quick checklist for public officers who have the courage to say no:
* Document everything – Keep contemporaneous records of instructions, advice sought and reasons for refusal. A careful paper trail may be the most powerful shield;
* Seek written authority – If pressured, request that directions be put in writing, preferably through lawful shareholder or Cabinet mechanisms rather than informal directives;
* Use Section 40 as a shield – The PPDPPA explicitly protects those who attempt to prevent a breach of the Act. Officers invoking the PPDPPA are not obstructing, they are upholding the law. Ensure the PPDPPA provision that you are seeking to protect is documented in your refusal.
* Escalate strategically – Raise concerns first within the enterprise, then, if necessary, to the Office of Procurement Regulation. Escalation framed as fidelity to the Act, not insubordination, is harder to penalise.
* Find collective courage – When officers act together, through PDACs, professional associations, or networks, they share the burden of resistance and reduce the risk of individual victimisation. Find your tribe.
Drawing the line: Who does what now?
For decades, state enterprise governance blurred the lines between policy oversight and procurement execution. The familiar “tenders committee of the board” epitomised this ambiguity: directors were approving and sometimes directing the award of contracts as if procurement transactions were proper extensions of non-executive board oversight.
The PPDPPA has now ended that era. It compels us to distinguish between two distinct spheres of governance:
* System governance – the remit of the board. Boards remain accountable for policy and strategy. They approve corporate objectives, align annual procurement plans with strategy, monitor systemic risk, and ensure management has sound controls. Their duty is to shape the framework within which procurement occurs—not to approve transactions.
* Transactional governance – the remit of management. Procurement execution is now the responsibility of accounting officers, named procurement officers, and Procurement Disposal and Advisory Committees (PDACs). These officers must conduct every transaction in strict compliance with the Act and its regulations. This is where personal liability—civil, administrative, and criminal—resides.
Put simply: boards govern the system; management governs the transactions. Where the board oversteps—directs an award, a cancellation, or a reconsideration in specific procurement transactions—the public officer must say no, provided of course, that there is demonstrable PPDPPA non compliance.
Boardroom tabanca: When directors can’t let go
Board members may be experiencing procurement tabanca. Despite the clarity of the Act, many boards are still demanding relevance by issuing “non-objections” in procurement transactions. The logic is understandable: boards want assurance that major contracts are properly vetted. But the PPDPPA provides for no such role. Once policy is set through strategic plans, budgets, and procurement plans, the board’s work is done. Issuing a “non-objection” may not only be redundant, it may be unlawful. What happens when a board objects to a PPDPPA compliant process? Or does not object to a non-PPDPPA compliant one? By stepping into the transactional arena, directors risk acting ultra vires the Act, exposing themselves, the officers they supervise and their enterprises to challenge. Worse, they risk blurring the very line the PPDPPA was designed to draw.
That is not to say that the board has no role, or even a limited one, in procurement. Quite the opposite. The PPDPPA removes boards from the day-to-day transactional space, but it elevates their responsibility for systemic governance. And this role may be more critical now than ever before.
System governance means ensuring that the frameworks, policies, and tools that guide procurement are robust, aligned with corporate purpose, and capable of delivering value over the long term. The tools of this higher-order oversight include:
* Annual procurement planning – Boards must interrogate whether procurement plans are aligned with strategic objectives, risk appetite and long-term capital programmes. The plan is the board’s primary lever of influence under the Act;
Standard Operating Procurement Procedures (SOPPs) – Boards should require management to codify clear procurement SOPPs that reflect the Act and provide assurance that officers know their roles, reporting lines, and red-flag escalation mechanisms;
Complex Value Assessments (CVAs) – In complex projects such as public-private partnerships (PPPs), large IT systems, or long-term outsourcing, standard “lowest price”, “most advantageous bid”, “most economically advantageous tender (MEAT)” value for money frameworks may be inadequate. Boards are well placed to commission CVAs that apply multidimensional value frameworks (such as economy, efficiency, effectiveness, equity, ecology, and ethics) aligned with long-term institutional objectives. This is a legitimate space for boards to exercise oversight, without trespassing into operational decision-making;
* Digitalisation and data infrastructure – Procurement today depends on digital platforms, data quality and transparent reporting. Boards must ask whether extant data systems allow for real-time monitoring, spend analysis, supplier performance tracking, and audit trails. Weaknesses here create systemic risk;
* Strategic risk management – Boards should use procurement data to anticipate systemic vulnerabilities including over-reliance on a few suppliers, exposure to FX volatility, or concentration in politically connected contractors; and
* Capacity and Culture – Boards must ensure that management invests in training, ethical culture, and organisational capability to implement the Act, not as a compliance burden, but as a value-creation opportunity.
Seen this way, procurement oversight is not diminished at all. It is transformed. Boards are liberated from micromanaging transactions so they can focus on the bigger, harder, and ultimately more consequential questions: is our procurement system fit for purpose, and is it delivering long-term public value?
The PPDPPA has not taken power away from boards; it has carefully redistributed it. Procurement governance is now a shared responsibility, mediated between system oversight and transactional compliance. Boards are the custodians of the framework, culture, and long-term value. Officers are the guardians of execution, compliance, and integrity. Each sphere is distinct, but each is required for effective procurement governance. The law has drawn the line. The real test is whether boards and officers alike will respect it; and whether they will have the courage, and the support, to say no when it matters most.
This article is part of the ‘Navigating the New Procurement Regime’ (NNPR) series designed to assist policymakers, public executive leadership, procurement professionals and bidders in navigating new compliance and litigation risks while transforming procurement governance to achieve strategic innovation and best value for public money.
Dr Margaret Satya Rose is an attorney at law, head of Satya Juris Chambers and managing consultant at Procurement Compliance Plus which is hosting the upcoming Procurement Governance Lab: Roles, Rights & Responsibilities on September 10th 2025 – For More Information visit https://procurementcompliance.com . Dr Rose can be contacted at mrose@procurementcompliance.com
