Procurement commission says has no role in `no objections’ to contracts

The Public Procurement Commission (PPC) has raised the possibility that Cabinet might continue giving the no-objection to contracts over $15m at least until revisions are made to the Procurement Act and its regulations to ensure clarity and to remove conflicting provisions.

This appears to be the upshot of a five-page statement today from the PPC which said that contrary to public perception it has been involved in a broad range of work. The PPC is chaired by Carol Corbin and also comprises Nanda K Gopaul, Emily Dodson, Sukrishnalall Pasha and Ivor English

One of the imperatives for the establishment of the PPC was that it should immediately remove from the purview of Cabinet, the role of offering the no-objection to contracts in excess of $15m. This had been a major demand of the AFC which is now part of the governing APNU+AFC coalition. However, in its statement today, the PPC is of the view that the extant legislation does not provide a role for the PPC in relation to no-objections to contracts over $15m. It says that the awarding of contracts would be the responsibility of the procuring entities and the National Procurement and Tender Administration Board (NPTAB).

It  also said that the primary impediments to the full operation of the PPC are the lack of appropriate office accommodation, adequate budgetary resources, transition of functions from the NPTAB and requisite staffing of the Secretariat of the Commission. These issues, it said, have affected the accessibility of the PPC to the “full range of stakeholders that it is intended to serve and restricted its ability to fully execute its functions in a stable and appropriate environment.”

It is unclear why the APNU+AFC administration has not worked to make these resources available to the PPC.

A section of the PPC release dealing with the Cabinet `no objection’ follows:

The role of Cabinet and it’s “No Objection” to contract awards

The PPC has fully deliberated on the continuing, “No objection role” of Cabinet, but, having regard to recent media reports, has considered it necessary to ensure full public awareness on this issue. Recent media reports suggesting that the continued role of Cabinet is linked to the PPC being “operational and functional” are inaccurate and misleading as neither the Constitution nor the Procurement Act provides for the PPC to take over this function from the Cabinet.

The Constitution empowers the PPC to carry out oversight of the procurement system in Guyana and its functions are clearly outlined as set out above. None of those functions provides for a “No Objection to Contracts” role for the PPC. Indeed, it is the view of the Commission that such a role would entrench the PPC as an integral part of the procurement process, which it is intended to monitor and regulate.

A conflict arises between the provisions of Section 54 (1) and 54 (6) of the Procurement Act.

Section 54 (1) states,

The Cabinet shall have the right to review all procurements the value of which exceeds fifteen million Guyana dollars.  The Cabinet shall conduct its review on the basis of a streamlined tender evaluation report to be adopted by the authority mentioned in section 17 (2). [i.e., the NPTAB and after its establishment the PPC]. The Cabinet and, upon its establishment, the Public Procurement Commission shall review annually the Cabinet’s threshold for review of procurements, with the objective of increasing that threshold over time so as to promote the goal of progressively phasing out Cabinet involvement and decentralizing the procurement process.

A literal interpretation of this section clearly indicates that the review role of Cabinet should continue even after the establishment of the PPC, with an annual review by the PPC of the threshold so that over time, by raising the threshold, the role of Cabinet would be eliminated. Section 54 (6) however provides as follows:

Cabinet’s involvement under this section shall cease upon the constitution of the Public Procurement Commission except in relation to those matters referred to it in subsection (1) which are pending.”

A literal interpretation of this section directs the immediate cessation of Cabinet’s role once the PPC is constituted. Neither section, however, provides for the PPC to take over that function from Cabinet. The role of the PPC is limited to approving the format of the streamlined report to be sent to Cabinet and if all of section 54 (1) is to prevail, reviewing the threshold of the value of contracts to be reviewed by the Cabinet.

Based on the foregoing, the Commission is not empowered by the Constitution or the Act to grant no objection or to award contracts. The awarding of contracts is the responsibility of the Procuring Entities and the National Procurement and Tender Administration Board (NPTAB). These agencies are responsible for the public advertisements of contracts, evaluation of bids and ultimate approval and award of contracts.