By Dixon Bwalya –

ADMITING that there is a problem is the starting point in the search for a solution to any problem or a wrong. Recently, the Acting Chief Justice was quoted in the print media to have admitted that corruption was a reality in the judicial system in Zambia which position was supported by the President of the Law Association of Zambia.
On July 6, 2014 Father Richard Luonde was quoted in the print media to have stated that there was something amiss in the conduct of some Church marriages where some pastors were bribed to breach accepted Christian procedures in the conduct of Church marriage ceremonies.
The Acting Chief Justice as well as the Anglican priest are very senior members of their respective professions who have had the courage and boldness to call a spade a spade.
Whatever negative social and economic impact corruption in the judicial system and Christian circles may be having on the Zambian society it is definitely chicken feed when compared to the damage caused to the nation by the rampant existence of corruption in the construction industry and yet no stakeholder has come out in the open to boldly accept this fact and pledge to fight this scourge.
Traces of corruption in the construction industry are evident at all levels of the construction process from procurement methods by clients or developers right through to consultants up to the construction stage.
These matters have been addressed before under this column.
The tendency, for instance, to pretend to procure goods and services through invitations to suppliers of goods and services to register with companies on payment of non-refundable fees has no valid justification other than as a means of easy fundraising and yet this has become an annual event taking place at the beginning of each year.
Providers of services in the construction industry are registered members in their respective professional bodies where they pay annual renewal or membership fees and registers are available to anyone in need of such services and it is therefore not necessary to request such members to pay additional registration fees to each and every company that advertises for registration to hopefully do business with them annually.
And yet no stake holder in the institute of purchasing or other procurement bodies has condemned this practice.
Single sourcing for provision of services in the construction industry has been in use for a long time but no strings were attached to this procurement process until recently.
There are certain services which can only be satisfactorily delivered by limited specialists in the construction industry in which case architects and other consultants may nominate a particular contractor or indeed supplier to provide such a service because the consultants, based on past reputation in terms of workmanship, pricing and delivery periods, are confident that the so nominated contractor will deliver the requested services to the satisfaction of all concerned.
Single sourcing is still used in procuring services in the construction industry only this time round it is sometimes dressed in sheep’s clothing where those in need of services go through all the routines associated with open tender processes to give an impression of transparency meanwhile they have already identified who is ultimately to be awarded the contract, at a fee of course.
One sign of such a “wolf” process is where the invitation to tender does not include a clause to allow participants to attend and witness the tender opening or the invitation to tender has too many unnecessary qualifications.
It is the abuse of the single sourcing process which is used by those in charge of the procuring of goods and services to corruptly raise funds for themselves or even raise “contributions” to fund political parties.
This may be done by asking the chosen and preferred supplier of goods or services to quote for the services to be provided then add a markup which is later given in cash to those who facilitated the contract award, that way it is difficult to trace these corrupt dealings.
And yet no stake holder has openly acknowledged the reality of this practice.
Appointment of consultants is sometimes based on technical and financial proposals where a decision is made depending on the financial bottom line.
It is then possible, with a little help from a cooperating adjudicator, to submit an unrealistically low financial proposal to provide justification for the award of the contract with no intention at all of sticking to the submitted figures knowing very well that over claims will be made during the process of the project either directly or indirectly through connivance with the contractor/client project representative either through persuasion or appointment made through similar manner.
An examination at the end of such executed projects would reveal that the so called lowest bid at tender evaluation stage has ended up with a tender sum much higher than the highest received tender sum at tender evaluation stage.
This method of siphoning money out of a construction project may be applied at both consultancy stage and at project execution stage involving either the consultant or the contractor even the client or client’s representative may have an active role to play in facilitating this process, all of course at a fee.
Turning a blind eye to either defective work or nonobservance of specifications and contract clauses can lead to very significant “cost savings” which savings do not accrue to the client but becomes additional profit to the contractor most likely to be shared with the consultant who has suddenly developed technical blindness for a fee.
The simplest example is where a contract agreement has included a clause on liquidated and ascertained damages to apply where a contractor delays completion of the project within the agreed contract period and instead of invoking this particular clause the consultant decides to turn a blind eye either by cooking up seemingly valid reasons to justify the extension of the building period or ignores to refer to the clause altogether.
And yet consultants and contractors are not openly condemning this practice.
A construction project would describe in advance the total scope of works to be executed for the stated tender amount.
A possible loop hole is to adjust downwards the initial scope of works without similarly adjusting the tender sum for instance a road construction project may involve construction of the actual road, construction of a pedestrian/cyclist path and construction of, say, stone pitched storm drains.
After commencement of construction it may be decided either officially or by deliberate omission to exclude works related to the pedestrian/cyclist path, for instance, but without making a similar adjustment in the tender sum meaning making a payment to the contractor including works he has not executed.
This over payment may also come in the form of Contingencies; this is where an amount of money is allowed at tender stage to cover possible unforeseen works emerging during the construction period where if no unforeseen works emerge the amount allowed for contingencies must not be paid to the contractor since he has not executed any works under this item.
And yet this practice may have happened on a number of projects and no condemnation has been made from consultants.
There are a number of building contract agreements being used on various construction projects some of which have not been tested in courts of law and contain various grey areas even though there are court tested building contracts available on the Zambian building market.
There are various clauses that address the issue of how payments for executed works would be made during the construction period and it is important to understand the implications of each of these payment clauses to appreciate potential loopholes that may be available as possible avenues for corrupt practices meant to unfairly relieve the client of his project funds.
Most projects proceed to construction stage on the basis of construction tender documents including bills of quantities which comprise a full description of the scope of works to be executed for which a contractor submits the accepted tender sum and parties agree in advance on how this money will be paid as works progress.
One method of making progressive payments to the contractor is by evaluating the quantity of builder’s works satisfactorily executed based on the agreed pre-contract building rates minus any agreed deductions such as retention funds or advance payments made at the commencement of the project.
There is a recent tendency to draw up contract agreements that stipulate payments to be made based on a per centum basis even though tender documents include priced bills of quantities. Such payment clauses may include terms like “twenty-five per centum of the contract price shall be paid to the contractor upon completion of half of the project” On the face of it this is a seemingly clear clause but it is, in actual fact, a potential area of abuse because while it is very easy to calculate twenty-five per centum of the contract sum assessing what comprises half of the scope of works may not be that easy.
It is this grey area where a contractor may be paid, by connivance, more money than is actually due to him.
In short there are potential areas of corruption in the construction industry which have been taken advantage of over the years.
Just as the Acting Chief Justice has done as far as the judicial system is concerned, it is equally important that key players in the construction industry must accept, to start with, that there is rampant corruption in the construction industry which is depriving the nation of the much needed resources. Secondly stakeholders must make public measures they plan to take to curb the scourge; meaning the Road Development Agency, The National Council for Construction, the Zambia Institute of Architects, Consulting Engineers of Zambia, Quantity Surveyors of Zambia, Procurement Agencies and Association of Building Contractors in Zambia must accept that corruption is a reality in the construction industry and also outline corrective measures they will individually and collectively take.
The Anti Corruption Commission should not adopt a position of waiting in offices for whistle blowers to submit cases of suspected corruption but rather be proactive and engage all stake holders to sensitize them on dangers of allowing corruption to take root in the industry and persuade the councils of these bodies to follow up and conclude cases of corruption or unprofessional conduct reported to them because a number of such cases have been frustrated by the same people entrusted with the responsibility of enforcing professional conduct.
It is economically profitable for the nation to prevent corruption rather than prosecute offenders after resources have been squandered.
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