Guyana still to comply with OAS procurement recommendations

Over five years after an Organisation of American States (OAS) committee had urged Guyana to set up a Public Procurement Commission (PPC) to ensure the procurement of goods and services and the execution of works are done in a fair and transparent manner this is yet to be done.

Guyana had also been urged to pay more attention to several other recommendations outlined in the report of the Committee of Experts of the Inter-American Convention against Corruption, which was adopted at the June 27, 2008 plenary session of the OAS held in Washington DC.

Recently, Presidential Advisor on Governance, Gail Teixeira had cited Guyana signing on to and ratification of the Inter-American Convention against Corruption as well as the United Nations Convention on Corruption as a bold step in the right direction for this country since many countries in the region are still to sign one or both of these conventions. Her statements came as government rejected the low ranking by Transparency International (TI) which this year ranked Guyana a very poor 28 out of 100 points in its 2012 Corruption Perceptions Index (CPI).

“We have bound ourselves legally as a country to international treaties in relation to the fight against corruption. We are willing to go before the UN and the OAS to be reviewed and assessed on what progress have been made and identify what are they gaps in relation to the fight against corruption. TI does not do that; it does not allow any country to use their indicators to help them fight against corruption,” Teixeira was quoted by the Government Information Agency (GINA) on a panel discussion on the National Communications Network (NCN). Government officials had rejected the TI report saying that it lacked credibility and is based on fundamentally flawed opinions.

Yet despite Teixeira’s adverting to the Inter-American Convention on Corruption, Guyana has not complied with many of the recommendations of the OAS committee.  The OAS report, while noting that Guyana has considered and adopted certain measures intended to establish, maintain and strengthen the systems for government procurement of goods and services, urged the adoption of provisions in the government systems which ensure the principles of openness, equity and efficiency under the Convention.

It had laid out 14 measures as it relates to government systems for the procurement of goods and services that Guyana should take. In the latest available report – the final report of the Committee of Experts of the Mechanism for follow-up on the Implementation of the Inter-American Convention Against Corruption which was adopted at the March 25, 2011 plenary session – Guyana was urged to take more action.

Advance implementation

Of the 14 measures, the committee noted that Guyana needs to give additional attention to 11 of these while it recorded the “satisfactory consideration” by Guyana of two measures. The committee also took note of the steps taken by Guyana to advance implementation of one measure while urging that further attention be paid to the measure.

The report had stated that Guyana should establish the PPC or another independent body responsible for monitoring public procurement and procedures, in order to ensure that the procurement of goods and services and the executions of works are done in a fair, transparent, competitive and cost-effective manner. It said that the committee observed that certain functions of a PPC are assigned to the National Procurement and Tender Administration Board (NPTAB) until a commission is established but pointed out that the National Board “does not possess the same level of independence constitutionally provided for the PPC in order to carry out those functions”. It urged that the PPC be established.

To date, this has not been done.

However, government in the follow-up report said that the NPTAB is the national authority provided for in the Procurement Act. “The Public Procurement Commission once established under the Procurement Act would oversight the (NPTAB) but the procurement of goods and services as established will continue to be implemented by the (NPTAB) as provided for in the said statute,” the government responded.

National registry of contractors

The government said that the establishment of the PPC is through a parliamentary mechanism through the Public Accounts Committee and efforts to reach consensus on nominations to the PPC are on-going. This has been the case for at least 10 years now.

The Committee said that there is a need for Guyana to give additional attention to the implementation of its recommendation, taking into account that the measure refers specifically to the establishment of the PPC or another independent body responsible for monitoring public procurement processes.

The committee had also recommended the establishment of a national registry of contractors of works, goods or services, mandatory to all State bodies, which contemplate the possibility of ensuring that the registry also includes a list of sanctioning contractors, in order to foster the principles of openness, equity and efficiency provided for in the Convention.

Guyana responded that the Procurement Act 2003 and regulations do not make such provisions. It said that Section 6 allows for the rejection of a contractor who fails to fulfill those requirements of eligibility. The courts are used to bring contractors to account for poor performance and the public‘s knowledge, the response said. Critics of the government have argued that very little of this has occurred.

It was also noted by the government that from time to time for foreign funded programmes, there is a system of prequalified contractors which require the approval of the donor agency as well as their approval of the awardees before it is sent to cabinet for ‘No objection’. It was also stated that Guyana passed an amendment to the National Insurance Scheme Act in 2009 making it obligatory for contractors desiring to bid for contracts in the state sector to also be in compliance with the NIS requirements. “Guyana reiterates that its emphasis is on encouraging the creation of more entrepreneurs throughout the country and to facilitate the development of their capacity to contribute to economic growth and generate economic activity across the ten Administrative Regions. In this process some will fail and others will grow,” the response said.

The Committee said it takes note of the need for Guyana to give additional attention to the implementation of the recommendation, taking into account that the measure refers to the establishment of a national public registry of providers, which could contain data on contractors’ record of performance or nonperformance; area of work and/or specialty; technical and economic capacity; type of firm; and other information considered relevant.

In terms of implementing a mechanism, through legislative and/or administrative means, to facilitate the exclusion and/or sanction of certain contractors for stipulated reasons, Guyana said that the Procurement Act 2003, Section 5 stipulates the grounds for eligibility and ineligibility for contractors or persons to bid. In other sections it stipulates the mechanisms for rejection of a bid and the complaints mechanisms.

The committee said that Guyana should give additional attention to the implementation of the recommendation.

Sanction government employees

The OAS report had said too that provisions should also be developed to sanction government employees who infringe procurement rules. The response of the government was that Permanent Secretaries are surcharged when there is breach of these rules: “in the case of abuse or corruption, persons have been charged and brought before the courts. In a number of instances in the last year, Permanent Secretaries/project managers have been surcharged. In addition, one Regional Executive Officer, a number of Customs Officers and policemen have been charged and are before the courts,” the response said.

The Committee noted the need for Guyana to give additional attention to the implementation of the recommendation, taking into account that the reason behind the measure was the absence of provisions establishing sanctions for government servants and employees who fail to fulfill or infringe upon the public procurement rules.

Guyana had also been urged to develop and implement provisions that establish the ineligibility of bidders or contractors who have ties to the procuring entity or who are directly involved in the determination of needs or specifications, appraisal of bids, selection of alternatives, or approval of purchases or payments.

The response of the government was that Section 60 (3) (4) of the Regulations to the Procurement Act 2003 addresses the issue of conflict of interest and sanctions while Section 55 (1-6) addresses the issue of confidentiality of information attending the procurement process by public officers and members of procurement entities and the consequential sanctions.

The committee urged that Guyana give additional attention to the implementation of the recommendation.

The Committee had also urged Guyana to harmonize the provisions contained in the Procurement Act and the Regulations which allow challenges to the procurement process at the administrative level and the government said that this is under review. The Committee urged Guyana to give additional attention to the implementation of this recommendation.

Statistics

Guyana was also urged to maintain and publish statistics that reflect the nature of contracts awarded, the proportion that is by public tender, the proportion that is by restricted tendering, request for quotations and single source procurement. Government responded that the NPTAB website posts by sector the number of awards, the value of the award, the name of the contractor, etc. and said that Guyana has not advanced to the level recommended but it is working towards it. The Committee urged Guyana to give additional attention to the implementation of this recommendation.

Deep concern had also been expressed by the OAS committee about Guyana’s non-implementation of some recommendations it made in 2006, including one for setting up mechanisms for access to information. Legislation to this effect has since been passed but to date the mechanism has not been set up.

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