Former AG Gloria Akuffo Backed ECG’s Request For A Procurement Law Exemption Under Conditions

Then AG Gloria Akuffo supported ECG’s request for procurement law exemption under certain conditions

It has emerged that a legal opinion issued by then-Attorney General Gloria Akuffo in a letter dated July 28, 2020, supported the Electricity Company of Ghana’s (ECG) request for exemption from the Public Procurement Act under specific conditions.

The letter, addressed to the Minister of Finance, Ken Ofori-Atta, examined ECG’s justification and referenced Ghana’s Public Procurement Act, 2003 (Act 663), as amended by Act 914 (2016).

Below are some of the key findings from Gloria Akuffo’s legal opinion

1. ECG’s Justification for the Exemption Request
   ECG argued that it should be exempted from the Public Procurement Act because:
    
   • It is a private company limited by shares, with the Government of Ghana as the sole shareholder.
      
   • It operates as a commercial entity and is not a government-subvented entity.
      
   • It operates in a competitive environment, paying corporate taxes and levies.
      
   • Other state-owned banks like Ghana Commercial Bank were previously granted exemptions after converting to limited liability companies.
      
2. Attorney General’s Position on ECG’s Exemption Request
   Contrary to previous interpretations, Gloria Akuffo’s legal opinion supported ECG’s request under Section 14(1) and (2) of Act 663, which outlines the application of procurement laws.
   
   Specifically, Point 12 of the letter states that ECG should not be subject to public procurement laws due to its status as a limited liability company operating as a commercial entity. This position aligned with previous exemptions granted to state-owned enterprises that transitioned into commercial ventures.
    
3. Legal Grounds for the Exemption
   Akuffo’s opinion referenced Section 96 of Act 663, which governs procurement using external funds. However, she clarified that since ECG is a commercial entity, it should be treated similarly to other state-owned enterprises that operate commercially and, therefore, should be exempt from the procurement laws that apply to fully government-funded institutions.
    
4.  ECG is Not Subject to Public Procurement Laws
   A critical part of the Attorney General’s legal opinion was Point 12, which explicitly stated:
   “In conclusion, the Public Procurement Act does not apply to ECG.”
   This reinforced that ECG, as a limited liability company, was not legally required to follow the Public Procurement Act when acquiring goods and services, giving it the autonomy to operate like a private commercial enterprise.

This legal position provided ECG with the legal basis to procure goods and services without strict adherence to public procurement laws, potentially allowing it to negotiate contracts independently.

This exemption has gained renewed attention in light of recent allegations that former ECG MD, Samuel Dubik Mahama, awarded contracts without competitive bidding, resulting in excessive spending and procurement irregularities.

Akuffo’s opinion suggests that ECG’s procurement decisions were legally justified, as the company was operating outside the Public Procurement Act’s framework. 

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