Dear Editor,
This government has announced the repeat performance of the recycling circus. After all its Lord Explainer had said on November 19 that the cabinet had withdrawn its agreement with the “form” of the Memorandum of Understanding (MoU) which no one published. We shall see whether he meant the use of that method of procuring, or the way the MoU was written. It is tempting to review the other positions taken during the whole disgraceful episode. Since corruption watchers found the government’s withdrawal encouraging, I shall try instead to show how the Procurement Act allows full control of tendering by the government and why it has opposed the Procurement Commission as provided in the constitution. Until Guyana’s most resourced contractor, BK International, took the GGMC to court, this seemed to be the order of the day.
The tendering process is what we Guyanese used to call ‘a wheel in a wheel.’
There is a National Procurement and Tender Administration (NPTA) with a governing board which is not really national. The board is wholly appointed by the Minister of Finance and is legally responsible to the Minister for its functions.
Of the maximum membership of 7 members, no more than 5 must come from the public service, and no more than 3 must come from the private sector. The Minister must consult the representative private sector organisation before appointing any members from that sector. The board therefore represents the choice of one party, the ruling party. The PPP/C did not get a majority at the 2011 elections. Yet no other party has a voice in creating the administration that decides how contracts are awarded. The Broadcasting Authority Board has one single member from the majority-of-one opposition.
In name, the board is at the top of NPTA, but that is so in name only. Under Section 53 of the Procurement Act, these board members must carry out any “general or special directions given by Minister in the exercise of their legal powers and the execution of their duties.” The section does not say whether the directions must be written or oral or what topics they may cover.
Three of the members of this “national” board are selected and appointed by the Minister as full-time members. The Minister appoints one of the full-time members as chairperson. We can assume that these are the hands- on, full-time tender handlers with full knowledge of what goes into NPTA. The other members are part-time members, with part-time knowledge of tender matters. The law says that all board members must be well known for their integrity and expertise. We have seen that integrity and expertise have a limit in the process. We have seen that the Minister has power to give directions to the board.
Sections 55 and 56 make it a crime for procurement bodies or any member or members of a body to disclose information contained in any document coming to their notice in the course of their work. When we look at the tendering process, this provision serves no other purpose than to threaten whistle-blowers. It recalls a provision in the former regime’s Public Corporations Act, which raised a storm.
The National Board appointed by the Minister then appoints its working organs called bodies; the Secretariat to do the day-to day work of the administration; and the “pool of evaluators” to scrutinise the tenders and required documents to the full. The tenders are advertised by the tendering entity, that is the ministry, region or corporation with money to spend. These then receive the offers from contractors, or suppliers, open them publicly with all persons making an offer or putting in a tender having the right to be present at the opening ceremony. After this point, things happen behind closed doors. Tenders valued over a regulated amount must then be sent to the National Board. The spending ministry or corporation or region makes its own decision on tenders of a value below that regulated value.
The National Procurement and Tender Administration Board appoints the secretariat “in consultation with the Minister.”
The “Procuring entity” is a ministry or other government body all controlled ultimately by ministers, all subject to the same political party as the President who appoints and can remove all ministers. “Procuring entity” is defined in the Act.
There is no written “arms length” or impartial imposition on the political people. A ministry or corporation, after all of these procedures, has the right and power to reject the National Board’s considered choice of the “lowest evaluated tender.” Politics, and therefore party, are never out of the process. A ministry can say no to the choice of “lowest evaluated tender” made by evaluators formerly selected for integrity and expertise, and the ministry can send back the board’s choice of the “lowest evaluated tender.” The ministry can then make its own recommendation, “which shall be accepted.” (Section 39(3)) The provision deserves to be quoted:
“If it does not agree with the Report of the Evaluation Committee’s determination (of the lowest evaluated bidder) the procuring entity shall issue an advisory recommendation which bidder should be the lowest evaluated bidder, which recommendation the Evaluation Committee shall observe.”
Section 39 first mandates what criteria the Evaluation Committee shall use to decide on the “lowest evaluated tender.” Then in subsection (3) it overthrows all that care, and empowers a disagreeing procuring entity to overthrow a decision based on “integrity, expertise” and stated criteria, and to do so without giving reasons.
Subject to more informed opinion, it is my view that the Procurement Act of 2003 is colourable, that is, intended to appear to be serving the interest of fairness and transparency but in fact not drafted to serve that purpose.
The lawmakers clearly did not anticipate judicial review of the process, except at the end of the line as provided for in the constitution for the Procurement Commission.
In spite of the existence of the tendering administration, the cabinet under Section 54 has a veto over the National Procurement and Tender Administration and all its works, in any contract over $15 million. The Procurement Administration is for small change.
All seemed to be going well until the award of a contract by Guyana Geology and Mines Corporation (GGMC) to CB&R Mining caused BK International to move to the High Court. There he won a ruling from the Chief Justice that the award of a contract to CB&R was outside the powers of the GGMC and illegal under the Procurement Act. In a comment in October 2013 an expert observer, Mr Christopher Ram, raised the issue whether government agencies were in fact complying with the Procurement Act. Before this ruling the process seemed water tight. The opposition MPs had noted irregularities in cases of domestic supplies of goods. The court found in effect, and among other things, that the litigated award did not comply with the terms of the Procurement Act. The issues in the case deserve to be fully published.
The Constitution Reform Committee wrote into the revised constitution, and parliament approved, of course with the President’s assent, the Procurement Commission. The government now has announced a revisionist position.
Yours faithfully,
Eusi Kwayana
