Despite the establishment of the Public Procurement Commission (PPC), the National Procurement and Tender Administration Board (NPTAB) will be responsible for the handling of the review and finalisation of debarment legislation, its Chairman Berkley Wickham says.
“There is a component under the Public Procurement Modern-isation and Financial Strength-ening Programme signed between the GoG [Government of Guyana] and the IDB [Inter-American Development Bank] which will provide a legal consultant to review the procurement legal and regulatory framework,” Wickham told Stabroek News.
“We are currently seeking to have debarment as a subset of this consultancy. The process of selecting an appropriate consultant is underway. As soon as all administrative procedures are satisfied, an announcement will be made in this regard. The PPC will be kept informed,” he added.
The Public Procurement Act says that the NPTAB shall be responsible for making regulations governing procurement to carry out the provisions of this Act, including adjudicating debarment proceedings, pending the establishment of the PPC.
Wickham did not specify why there is no transfer to the PPC as catered for by law but simply said that when the process was through he would inform the PPC. However, last year November, before the establishment of the PPC, he had said that the NPTAB was working with a consultancy company to put together documents for debarment procedures and that when the PPC was established it would take over the process.
While several contractors who have been retained by government have breached contracts, the NPTAB and the procuring agencies have said that their hands were tied since the country has no debarment legislation and therefore even errant companies could challenge if blacklisted.
PPC Chairperson Carol Corbin has said that the safest way to protect a procuring entity against companies fingered in fraudulent and other illegal activities was to have debarment legislation.
“There is no debarment law established, which allows the entities to blacklist the contractors. They [the procuring entities] have to operate within the law. So if they do not select a contractor and they say it is on the basis of them committing some fraud or something of that nature, suppose that contractor carries them to court? What will they resort to?” she questioned.
When Corbin was asked what was keeping Guyana from having such laws implemented, she explained that the process has started but there has been a snag in the PPC taking over the process.
“From what I understand, the legislation has been drafted and the Ministry of Finance had gotten funds from the IDB to review and finalise the legislation. Now, since we have been established, we should have taken over that because that is our responsibilities, and we had requested that the Ministry of Finance provide access to the funding for us to work with a consultant to do that, but that has not been done,” she explained.
When this newspaper asked the reason why the PPC has not gotten access to the funds, she said she would also like to know. “That is one of the areas we should have been working on because that is one of our functions but you have to get resources because we would have to get someone that can really draft the legislation and finalise it. We don’t have those resources in house. The fact is that there are funds already earmarked and identified several years ago for that specific purpose,” she had noted.
Wickham had said that in the interim, as the country works on having debarment for contractors put into law, bidding documents could be crafted so that bidding and evaluation criteria caters for the company to show evidence of past works and of related litigation, if any.
Section 5(1) of the Procurement Act states, “Every supplier or contractor wanting to participate in procurement proceedings must qualify by meeting such of the following criteria as the procuring entity considers appropriate –
(i) that it possesses or has access to the technical competence, financial resources, equipment and other physical facilities, managerial capability, reliability, experience, and reputation, and the personnel, to perform the contract;
(ii) that it has legal capacity to enter into the contract;
(iii) that it is not insolvent, in receivership, bankrupt or being wound up, its affairs are not being administered by a court or a judicial officer, its business activities have not been suspended, and it is not the subject of legal proceedings for any of the foregoing;
(iv) that it has fulfilled its obligations to pay taxes and social security contributions of its employees.
(v) that it has not, and its directors or officers have not, been convicted of any criminal offence related to its professional conduct or the making of false statements or misrepresentations as to its qualifications to enter into a procurement contract within a period of ten years preceding the commencement of the procurement proceedings, or has not been otherwise disqualified pursuant to administrative suspension or debarment proceedings in this or other jurisdictions over the last three years;
(vi) that its past performance substantiated by documentary evidence would commend it for serious consideration for the award of the contract.”