After years of delays in the crafting of regulations, errant contractors could soon face debarment of up to five years as the Public Procurement Commission (PPC) gears up for implementation.
If a contractor or supplier has a history of unsatisfactory performance of one or more contracts or subcontracts then they are liable for debarment, the Draft Regulations on Suspension and Debarment from Participation in Public Procurement states.
Debarment shall be for a minimum of one year and not for more than five years, according to the draft.
The PPC has embarked on a series of stakeholder meetings on the proposed regulations. The draft stemmed from a series of consultations and has been published on the PPC website for feedback.
The regulations note that the serious nature of debarment requires that it be imposed only in the public interest and that debarment is discretionary and may be imposed only on the suggested grounds.
According to the draft, violations of the terms of a procurement contract or subcontract so serious as to justify debarment, include but are not limited to a history of unsatisfactory performance of one or more contracts or subcontracts; a history of failure to perform one or more contracts or subcontracts; a history of failure to comply with the Income Tax Act, the National Insurance and Social Security Act, the Environmental Protection Act, Occupational Safety and Health Act and the Labour Act.
Under the same subsection, it is also noted that the wilful failure to perform in accordance with the terms of one or more contracts or subcontracts will be considered as grounds for debarment or suspension.
Additionally, a contractor may be debarred or suspended based on the following grounds; any false information supplied in the process of submitting a bid or prequalification application; collusion between the bidders or a bidder and a public official concerning the formulation of any part of the bidding documents; coercion or connivance to interfere with the participation of competing bidders; misconduct relating to the submission of bids involving fraud, corruption, collusion, coercion or price fixing, or in the implementation of a procurement contract such as intentional or negligent billing irregularities, submitting false or frivolous or exaggerated claims, documents or records, falsification of claims, documents and records.
Contractors also convicted of a criminal offence, or subject to a civil judgment for commission of a criminal offence or fraud relating to obtaining or attempting to obtain, or performing a procurement contract or subcontract will also be eligible for debarment or suspension.
The draft document also stated that conviction of a crime related to business or professional activities, or other violation of law, as determined by a court of competent jurisdiction or an administrative proceeding, which in the opinion of the Public Procurement Commission indicates that the supplier or contractor is unable to perform responsibly or which reflects a lack of integrity that could negatively impact or reflect upon Guyana, including but not limited to any of the offences listed in the Schedule of Offences will also be considered as grounds for debarment or suspension.
The document also states that a loss or suspension of a licence or the right to do business or practice a profession, the loss or suspension of which indicates dishonesty, a lack of integrity, or a failure or refusal to perform in accordance with the ethical standards of the business or profession in question will also be considered as grounds for debarment.
The supplier or contractor will be allowed to apply in writing to the Commission for a reduction in the duration of the debarment period, or its waiver.
According to the document, the supplier or contractor can apply for a reduction or waiver if there is newly discovered evidence or a documentable error in the findings of the PPC’s decision.
Additionally, if there is a bona fide change in ownership or control of the supplier or contractor, or other mitigating factors sufficient, in the judgement of the PPC, to remove the conditions giving rise to the conduct that led to the debarment, a supplier or contractor would be able to apply for a reduction or waiver.
It also added that mitigating factors may include, without limitation, disciplinary actions against all persons responsible for the acts giving rise to the debarment; remedial action designed to prevent a recurrence of the acts giving rise to debarment; or a determination by the Commission that the past conduct of the supplier or contractor does not indicate a pattern or history of similar acts.
However, it stated that the presence of any grounds for debarment does not mean that in every such case debarment is necessarily applied and that the seriousness of the supplier or contractor’s acts or omissions, and any remedial measures or mitigating factors should be considered in making the debarment decision.
It also stated that the adjudication of debarment and suspension by the Commission shall be on the basis of what it determines to be in the State’s interest and for the protection of the public interest.
When deciding whether to impose suspension or debarment when circumstances justify such measures the Commission will consider several factors such as whether the supplier or contractor had established conduct standards and control systems in place at the time that the actions in question occurred; whether the supplier or contractor itself brought the actions in question to the attention of the relevant authorities in a timely manner and conducted an internal investigation, the results of which were brought to the attention of the relevant authorities.
Additionally, the degree of cooperation on the part of the supplier or contractor with investigations and judicial or administrative proceedings carried out in connection with the conduct in question and the remedial measures that the supplier or contractor has implemented or has agreed to implement will be considered among other factors.
Apart from whether or not a procuring entity or other entity has brought an application for debarment, the proposed regulations state that the PPC “may seek or receive from any source information or evidence concerning possible grounds under these Regulations for debarment or suspension of a supplier or contractor”.
The PPC, according to the draft regulations, could also extend debarment to affiliates of the supplier or contractor and any debarment or suspension order applies throughout the public procurement system. (Dhanash Ramroop)