Latest update April 19th, 2024 12:59 AM
Jul 07, 2013 AFC Column, Features / Columnists
– PPP & Procurement
By Khemraj Ramjattan, AFC Leader
Last week I cleared the air as to what the PPP’s position was in 2003 on the Public Procurement Commission. Just to repeat for emphasis, its position was that once this Public Procurement Commission comes into being as commanded by our Constitution since 2001, Cabinet’s role in all matters concerning procurement awards will cease.
This position was merely to fool everybody, because since that time this most important Commission deliberately was not constituted. Not being constituted and made operational permits a massive gorging at the trough. That the joint Opposition can leverage its coming into being, and has recently been doing so, the PPP Government has been forced now, one decade later, to lift the veil and pronounce that before it constitutes the Commission it wants what it calls a no-objection power over all contracts to be awarded over the amount of G$15M. Shed of its technical description, a no-objection power in the Cabinet means a power to object to any award over G$15M being made by the Public Procurement Commission. So the ultimate authority will still be ceded in the Cabinet in relation to contracts over G$15M.
This was never what the Constitution Amendment of 2001, (articles 222 W to 222 EE), intended. It never was what the PPP Government mouthed as being its position in 2003. Cabinet in Guyana, from whichever Government that Cabinet is formed, ought not to have, nor should be allowed, any role whatsoever on the granting or non-granting of awards concerning procurement of services, goods and materials.
At the last meeting of the AFC and President Donald Ramotar at Office of the President, I had asked the President to present his arguments as to why he now wants this no-objection power as a condition for the constitution and operationalisation of this Commission. He indicated that Dr. Luncheon will send me the arguments. Dr. Luncheon has since done so. It is here stated verbatim:
“Cabinet No-objection serves the following:
1. To examine and confirm adherence with procedures by all levels of the procurement system of awards exceeding G$15M.
2. To exclusively exercise the discretion of recommending or not recommending awards resulting from compliant procurement procedures whose execution are judged by Cabinet to be contrary to or inconsistent with sound current sectoral financial and economic realities. For example, a properly executed procedure that leads to a potential award that the government deems unacceptably too high or too low or that fails to accord with current reality in a sector.
Neither the NPTAB, the procurement entity, nor the Public Procurement Commission is vested with powers to exercise such discretions.
That discretion is uniquely and exclusively reposed in the Executive and is not delegated to any other Authority statutorily or constitutionally.
In essence, where else than at the level of Cabinet can the following considerations be brought to bear on awards of contracts:
1) The price for the successful bidder is too high or too low
2) The potential award conflicts with acutely developing situations in the Sector that warrant the annulment of the tender, e.g.
GOG – Donor engagements
Acute sectoral shocks
Acute adverse financial sectoral developments
Such situations demand timely and appropriate responses that are outside of the remit of any authority other than that of the Executive. “
I was not surprised at the tenuity of this attempt at Government’s rationalisation. This attempt vindicates the control-freakism which has pervaded all quarters of this Government.
I want to deal with Dr. Luncheon’s purported reasons seriatim. His first reason not only constitutes a duplication, but, moreover, is a complete usurpation of the function of the Public Procurement Commission by the Cabinet.
Our Supreme Law granted to the Public Procurement Commission, by Article 212 AA (1), (a) and (d) this identical function which Dr. Luncheon argues must inhere in the Cabinet. Once this function is explicitly stated to be elsewhere, Cabinet is ousted from executing such a function.
This is what Article 212 AA (1) (a) and (d) says:
“The functions of the Public Procurement Commission are to monitor and review the functioning of all public procurement systems to ensure that they are in accordance with law and such policy and guidelines as may be determined by the National Assembly… and monitor the performance of procurement bodies with respect to adherence to regulations…”
Wordy but not worthy, Dr. Luncheon’s second reason is wholly luncheonesque. It is lengthy and lacks clarity and is intended to be so. But even if it is broken into parts to get some meaning out of it, it is still hugely flawed. Take this part, for example:
“To exclusively exercise the discretion of recommending or not recommending awards resulting from compliant procurement procedures whose execution are judged by Cabinet to be contrary to or inconsistent with sound current sectoral financial and economic realities.”
To this I wish to question that if Cabinet clearly defines projects which are consistent with national needs and priorities or its policies, how will these projects be inconsistent with sound current sectoral, financial and economic realities?
To illustrate, if the national need as determined by the Cabinet is to have a sugar refinery and packaging plant in keeping with its policy to improve the sugar industry, this project must have been consistent with sound sectoral, financial and economic realities.
Our Cabinet would be out of its mind to propose as a project to send a man to the moon as that would be inconsistent with any sound sectoral or economic realities. If that were so our entire Cabinet should be shipped off there permanently.
Take this other part which he argues, namely, when “the Government deems a potential award unacceptably high or low or fails to accord reality.” To this I wish to rebut that this is exactly what the Public Procurement Commission functions are all about, to monitor the awards of the Tender Boards, which by the way would have benefitted from the Engineer’s Estimates done by Government personnel. If the first instance award is too high or too low or fails to accord with reality, the Public Procurement Commission is to remedy this under the Constitution. Not Cabinet!
So the argument that the Procurement Commission is not vested with any discretion or authority, statutorily or constitutionally, is misconceived. I do not think Dr. Luncheon read the entirety of the functions of the Public Procurement Commission in Article 212 AA. He would have seen this discretion, and jurisdiction and power, “to initiate investigations to facilitate effective functioning of procurement systems, to investigate cases of irregularity and mismanagement and propose remedial action.”
Is this not sufficient to take care of situations when awards are to high or too low or not in accord with reality? What else could the Constitution be speaking about or intending to get at? And “remedial action” necessarily must mean annulment of an award that is so outrageous.
But even if Dr. Luncheon is looking so hard and yet not seeing these discretions and powers granted to the Public Procurement Commission by the Constitution, then I wish to relieve him of his fears. Rather than renege and somersault on an earlier position by proposing that Cabinet should exercise such discretion and power, he should under Article 212 AA (2) ask the National Assembly to grant these other discretions and powers to the Public Procurement Commission which he thinks are absent.
This is what that provision says:
“In addition to the functions prescribed in this Constitution, the functions of the Commission may be provided for by law; any addition thereto in the Constitution shall be approved by the votes of a majority of all the elected members of the National Assembly but the removal or variation of any function shall be by the votes of not less than two-thirds of such members.”
Where is the BETTER MANAGEMENT/RENEGOTIATION OF THE OIL CONTRACTS you promised Jagdeo?
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