Book Publishers Drag Education Ministry To Court
Mr Lee Ocran - Minister of Education
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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