Who will be responsible for offering the ‘no-objection’ to large contracts was thrown into disarray when the recently-appointed Public Procurement Commission (PPC) announced yesterday that it had no such powers, raising the prospect that Cabinet will continue this role in the interim.
One of the key reasons for the setting up of the PPC was to relieve Cabinet of the responsibility of giving the no-objection to contracts in excess of $15M. It had been the subject of a fierce battle between the former PPP/C government, which wanted Cabinet to retain this power, and the now governing parties, APNU and AFC, which wanted this role to end.
The PPC’s statement will put the AFC in particular in a difficult position as it had made the establishment of the PPC and the removal of Cabinet’s no-objection role a cornerstone of its platform while in opposition.
The government had also been preparing to relinquish its no-objection role to the PPC. Last month, Minister of State Joseph Harmon told a press briefing that, “Right now they (the PPC) are not fully ready because there are some physical appointments to be made in the commission that have not been made as yet. Therefore, the role of no objection continues to be exercised by Cabinet…But we expect that within a very short space of time… this role will be phased out”.
In its statement yesterday, the PPC said that “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 PPC is chaired by Carol Corbin and also comprises Nanda K Gopaul, Emily Dodson, Sukrishnalall Pasha and Ivor English
It contended that the awarding of contracts would be the responsibility of the procuring entities and the National Procurement and Tender Administration Board (NPTAB).
“The Constitution empowers the PPC to carry out oversight of the procurement system in Guyana and its functions are clearly outlined … 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,” the PPC’s statement asserted.
The PPC added that the Constitution empowers it to carry out oversight of the procurement system in Guyana and while its functions are clearly outlined, none of those functions provides for a “No Objection to Contracts” role.
It also adverted to a conflict in Sections 54 (1) and 54 (6) of the Procurement Act, which points in the direction of Cabinet continuing its role.
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.”
The PPC said 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.
However, the PPC noted that Section 54 (6) 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.’”
It said a literal interpretation of this section directs the immediate cessation of Cabinet’s role once the PPC is constituted. The PPC said that neither section however, provides for the PPC to take over that function from Cabinet. It added that 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 [NPTAB]. These agencies are responsible for the public advertisements of contracts, evaluation of bids and ultimate approval and award of contracts,” it asserted.
Bid Protest Committee
Another area of legal conflict that the PPC believes should be amended to provide clarity pertains to the Bid Protest Committee. It noted that “A bidder whose tender or proposal has been rejected and is aggrieved may submit a written protest to the procuring entity in the manner and time-frame specified in Section 52 of the Act. That bidder may later make the protest to the PPC under Section 53 of the Act. Section 53, however, needs clarification and possible amendment, as its provisions, unless revised, appear to run directly in conflict with the provisions of Articles 212AA. (1) (h) and (i) of the Constitution, which place the authority to investigate complaints from suppliers, contractors and public entities, as well as investigate cases of irregularity and mismanagement, with the PPC.”
It added, “The provisions for the appointment and functioning of a Bid Protest Committee may have been appropriate prior to the establishment of the Public Procurement Commission. Now that the Commission is established, there is need for revision of both the provisions of the Act and the Regulations that deal directly with the appointment and functioning of the Bid Protest Committee. For example, Section 53 (6) of the Act states that the decision of the Bid Protest Committee shall be final and immediately binding upon the procuring entity and clause 13 (9) of the Regulations states that the award of the Bid Protest Committee shall not be open to administrative review. Until these apparent conflicts are resolved the Commission will be constrained from effectively carrying out its constitutional mandate.”
The PPC also informed that the primary impediments to the full operation of its mandate are the lack of appropriate office accommodation, adequate budgetary resources, the 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.”
The Commission’s Chairman had told Stabroek News last month that as they continue to search for an appropriate building for the body, it would use one of the rooms at Parliament and work out of the Critchlow Labour College, where another member is the principal.
Following a detailed review of the applicable legislative framework, the PPC said it engaged several stakeholders within the national procurement system on the role and functions of the PPC. In this regard, the PPC said it held discussions with more than one hundred public officials from several agencies and departments that operate in the public procurement system. Some of the agencies engaged thus far include: The Audit Office of Guyana, Public Accounts Committee of Parliament, National Procurement and Tender Administration Board, Ministry of Finance, Ministry of Public Infrastructure, Ministry of Education and the Inter-American Development Bank.