Chartered accountant Christopher Ram yesterday said that new restricted tendering thresholds unveiled by the government are illegal as they usurp authority that is now ensconced in the Public Procurement Commission (PPC).
Ram made the comment to Stabroek News while expressing disagreement with the opinion of former Auditor General Anand Goolsarran who said that the government’s recent increase in thresholds for restricted tendering is legal even though the timing is suspect.
Ram said that Goolsarran “completely” ignored the provisions of the Constitution which deal with the PPC.
On Thursday, the same day that Stabroek News reported on the issue, Goolsarran in an invited comment to this newspaper had said that while there is nothing wrong with the process undertaken by Minister of Finance Winston Jordan to raise the thresholds, “the timing of the increases in the light of the 21 December 2018 vote of no confidence” is in question since he would have acted under subsidiary legislation granting to him that right as a minister.
While stressing that he does not share Goolsarran’s opinion, Ram, who is also an attorney-at-law, pointed out that the former Auditor General cited sections 26 and 61 of the Procurement Act, while apparently ignoring sections 17 and 54.
“While he is not an attorney-at-law Mr. Goolsarran must know that the Constitution of Guyana is the supreme law and no other primary legislation such as the Procurement Act, let alone secondary legislation, such as Regulations, can override the Constitution. Even if Mr. Goolsarran had only paid attention to section 17 of the Procurement Act he would have noted that the functions of the National Procurement and Tender Administration Board (NPTAB) is to be responsible for ‘exercising jurisdiction over tenders the value of which exceeds such an amount prescribed by regulations, appointing a pool of evaluators for such period as it may determine, and maintaining efficient record keeping and quality assurances systems.’”
Ram said that Goolsarran would have noted too that Section 17 goes on to state that pending the establishment of the PPC, the National Board was vested with responsibility for certain other functions and might have noted that Section 61 provides that the “Minister shall, with the advice of the National Board or the Procurement Commission, make any regulation….” In this regard, Ram stressed that the Procurement Commission has now been in operation for more than three years, assuming those other functions which the NPTAB carried out temporarily.
“Mr. Goolsarran, former Auditor General and transparency and accountability advocate knows the work which went into the formulation of extensive provisions in the 1999 constitutional reform process, including twelve specific functions and one general one. To simply cite the Procurement Act without any reference to or consideration of the Constitution, in my view, does not do justice to the entirety of the issue,” he said.
According to Ram, the Circular on which Goolsarran was commenting also refers to construction tenders of $20 million, placing them into the realm of the Cabinet, which is now non-existent as a result of the December 21 no-confidence motion.
“This is not only about timing but about intention to direct tenders to favoured persons and to subvert a process which he along with others fought so valiantly to protect,” Ram added.
As of Monday, government significantly raised the thresholds for the restricted tendering for the procurement of goods and services, as well as construction.
The circular, signed by Deputy Chairman of the NPTAB Mark Bender and released by PPP/C MP Juan Edghill, advises permanent secretaries, agency and corporation heads and regional administrations that the threshold for restricted tendering in the case of contracts for goods and services has risen from $3 million to $10 million –an increase of 233% – while the threshold in the case of construction has risen from $10 million to $20 million. Additionally, they can also now use requests for quotations for contracts valued up to $3 million, which is a 50% increase over the previous threshold of $1.5 million.
While these methods of tendering still must adhere to the Public Procurement Act and its regulations, critics have previously argued that it is easier to channel such contracts to a select group of persons as distinct from open tendering where there would be public advertising. The higher thresholds would mean that a significant number of contracts would no longer be available to open tendering and the procuring entities would have a major say in who would be invited to tender. With no advertising or tender opening at NPTAB, it is unclear how the public will know how many contracts each respective ministry would have handed out over a specified period.
Opposition Leader Bharrat Jagdeo has since called for the PPC to investigate the matter, while warning heads of agencies not to get ensnared by illegalities. He said on Thursday that the lifting of the thresholds was illegal as this was the function of the Cabinet which no longer exists and the PPC.
“The Cabinet and the PPC. There is no Cabinet. The Cabinet was resigned, so that leaves only the Public Procurement Commission and the Public Procurement Commission has not met on this matter. So [Finance Minister Winston] Jordan acted illegally when he acted on the advice of the board that he controls,” he said.
