Transparency Institute Guyana Inc. on Tuesday met with an OAS team on the implementation of the Inter-American Convention Against Corruption)
National Procurement and Tender Administration
Board (NPTAB)
The NTPAB was established by section 16 of the Public Procurement Act 2003 as an agency that reports to the Minister of Finance. It consists of seven members appointed by the Minister, not more than five from the Public Service; and not more than three from the private sector after consultation with their representative organizations. TIGI believes that the over-involvement of the Minister in the appointment of members of the NPTAB and the requirement of the Chairman to report to him are not considered good practices, especially when one considers that all procurements in excess of G$15 million require the approval of the Cabinet of which the Minister is a key member.
The term of membership of the NPTAB is for two years, with two members serving full-time while the rest serve on a part-time basis. Although the Procurement Act is silent on the re-appointment of members of the NPTAB, in practice, members are re-appointed. However, there is no limit in terms of how long a member can serve, contrary to international best practices.
TIGI recommends that: (a) the term of office for members of the NPTAB be extended to three years; and (b) no member should serve for more than two consecutive terms.
The NPTAB is responsible mainly for exercising jurisdiction over tenders the value of which exceeds an amount prescribed by regulations, and for appointing a pool of evaluators. All procurements which exceed G$15 million are referred to the Cabinet for review based on a streamlined tender evaluation report. Cabinet can only object to an award if it determines that the procuring entity failed to comply with the applicable procurement procedures. However, there is no publicly available evidence of the Cabinet objecting to an award, and one suspects that to do so is to call into question the work of the Minister. Therein, lies an apparent conflict of interest.
TIGI recommends that to the extent that the Cabinet retains the right to review all procurements in excess of G$15 million, the Minister of Finance should divest himself from the appointment of members of the NPTAB and its reporting relationship to him. In the circumstances, it would be more appropriate for the PAC to appoint members of the NPTAB and to oversee its work.
Article 212 W of the Constitution provides for the establishment of the Public Procurement Commission (PPC), with responsibility for monitoring public procurement and the related procedures to ensure that the procurement of goods, services and the execution of works are conducted in a fair, equitable, transparent, competitive and cost effective manner.
This amendment was mainly in response to persistent criticisms by the Auditor General over the years of the failure of government ministries and departments to adhere to the Tender Board Regulations. There was also public pressure to reform the government’s tendering procedures. In particular, many stakeholders held the view that the arrangements in place did not provide them with confidence as to the fairness and transparency in the award of government contracts, and there was no mechanism in place to address their concerns.
The PPC is independent of the Executive and reports to the Legislature. It is required to consist of five members with expertise and experience in procurement, legal, financial and administrative matters. The members are to be appointed by the President after they have been nominated by the PAC and approved by no less than two-thirds of the elected members of the National Assembly. A member can only be removed from office except as provided for in the Constitution.
These are important safeguards to not only secure the independence and impartiality of the Members but also ensure that they enjoy the confidence of Members of the National Assembly from both the Government and Opposition sides. In addition, none of the functions of the Commission can be removed or varied except by the votes of not less than two-thirds of the elected Members of the National Assembly. However, any addition thereto requires the votes of a majority of elected Members.
Section 17 of the Procurement Act acknowledges the non-establishment of the PPC and vests the Commission’s responsibilities with the NPTAB with the proviso that upon the establishment of the PPC, those responsibilities will cease. In addition, Section 54(1) provides for the progressive phasing out of the Cabinet’s involvement in the procurement process upon the establishment of the PPC. However, Section 54(6) states that the Cabinet’s involvement shall cease upon the establishment of the Public Procurement Commission except for pending matters. Despite the important constitutional amendment aimed at securing public confidence in the public procurement process, after 12 years the PPC Commission is not yet in place.
TIGI recommends that the Public Accounts Committee take urgent measures to advertise both locally and internationally for suitably qualified and experienced Guyanese in public procurement to express an interest in becoming a member of the Public Procurement Commission. Based on a system of short-listing and interviews, the five candidates should be selected for the President to make the appointment. Once the appointments are made, the names of the persons are submitted to the National Assembly for ratification.
Office of the Director of Public Prosecutions
TIGI does not wish to offer any comments.
Public Service Commission (PSC)
The Constitution vests with PSC the power to make appointments to public offices, and to remove and to exercise disciplinary control over persons holding or acting in such offices. This arrangement provides for a high degree of assurance that government employment practices are fair, equitable and transparent. There are detailed rules for the recruitment, transfer, promotion and removal of public officers.
A review of the estimates of revenue and expenditure for 2012, as presented in the National Assembly, revealed that a significant number of persons are employed on a contractual basis without the PSC’s involvement. In addition, there is no evidence to indicate how the concerned agencies selected and remunerate these persons, and therefore the issue is one of transparency.
The table below, which does not include teachers and police, summarises the staffing for 2012:
On an overall basis, out of 18,809 employees, 3806 or 20 per cent are contracted employees. For individual Ministries, Departments and Regions, the figure varies from 5 per cent for Region 4 to as high as 100 per cent for the Ministry of Natural Resources and the Environment. (The Office of the Ombudsman and the Public Service Appellate Tribunal are non-functional, except for a few clerical staff.) In terms of actual numbers, the Ministry of Health topped the list with 749 contracted employees, followed by Region 6 (284); the Georgetown Public Hospital Corporation (240); Ministry of Culture, Youth and Sport (222); and Ministry of Labour (214).
The Office of the President has 156 contracted employees out of 238, or nearly two-thirds, and their emoluments account for 88 per cent of the wages and salaries paid by that office. Similarly, at the Ministry of Finance, contracted employees account for a little over 50 per cent (124 out of 236) and their emoluments represent 69 per cent of the wages and salaries.
Regardless of the justification offered, the practice of employing contracted employees on a scale undertaken by the Government dilutes the authority of the PSC and is very costly to the taxpayers. The whole effort appears to be one of short-termism in that should there be a change in government, most of these employees, especially if they are politically aligned, are likely to be replaced by a new set of contracted employees. This could very well be a never ending cycle. Meanwhile, the traditional Public Service is allowed to die a slow death.
Article 215A of the Guyana Constitution establishes the Public Service Appellate Tribunal to hear appeals “…in respect of any matter so specified, being a matter in respect of which the Public Service Commission, the Teaching Service Commission, and the Police Service Commission or the Commissioner of Police is empowered to make a decision…” In other words, a public servant, a teacher or a police officer has a right of appeal to the Tribunal against any decision by the relevant Service Commission if he/she feels that there has been unfair treatment.
An examination of the estimates of expenditure for 2012 indicates that there are over 22,000 authorised positions that fall under the jurisdiction of the three Service Commissions in terms of appointment, discipline and removal. With such a large number of public officials to deal with, it is inconceivable that some officers will not have grievances regarding the decisions of these bodies. It is mainly for this reason that the Constitution provides for the establishment of the Tribunal
The Tribunal, however, has not been in place since August 1995. As a result, aggrieved public officers seeking redress have no alternative than to petition the Courts in the form of a civil action. This is not only expensive in terms of legal costs but the matter could also take years to be brought to a satisfactory closure, given the backlog of cases to be handled by the Courts. In addition, there is the fear factor in that a public officer challenging the decision of a Service Commission may very well find himself/herself out of employment, thereby losing the accumulated benefits of serving the State. Invariably, most if not all of the aggrieved persons will choose to remain silent, move on to other employment, or migrate overseas.
TIGI recommends that the Government severely restrict the appointment of contracted employees. Where it is considered necessary to do so, the Public Service Commission should be involved in the recruitment of these employees and in the setting of their remuneration. The ultimate objective is to have a unified, open and accountable system in place for the hiring of all government employees.
The Ombudsman invariably described as the “poor man’s lawyer, is a government official who investigates citizens’ complaints against the government or its functionaries. According to Prof. Fiadjoe, the Ombudsman adjudicates over issues of maladministration and injustice in an informal setting without the normal trappings of formal process or associated costs. He/she brings to bear in a conciliatory process a high degree of informality and simplicity involving parties with unequal resources. The work of the Ombudsman encourages good government and helps to bring transparency to the decision-making process.
Article 191 of the Guyana Constitution provides for the President to appoint an Ombudsman acting after consultation with the Opposition Leader. The tenure of appointment is for a non-renewable period of four years. The main responsibility of the Ombudsman is to investigate any action taken by a government department or other authority, or by the President, Ministers, officers or members of such a department or authority in relation to the exercise of the administrative functions of that department or authority.
It is indeed very disappointing that no Ombudsman has been in place since the last person, Mr. S.Y. Mohamed, demitted office around 2005. Citizens have therefore been without the services of the “poor man’s lawyer” for seven years. Whatever the reason(s) for this unfortunate state of affairs, Guyana cannot be viewed in good light when compared with its Caribbean counterparts – Jamaica, Barbados, Trinidad and Tobago, Dominica, St. Lucia, and Antigua – that have a functioning system to investigate citizens’ complaints via the Ombudsman.
It is encouraging that the President and the Leader of the Opposition are in dialogue to have, among others, the Tribunal reconstituted and become operational. This will be a welcome relief for public officers notwithstanding the untold damage to the morale of affected public servants over the last 16 years for the disregard of the important constitutional safeguard.
The Office of the Ombudsman is indispensible to the effective functioning of the State. It provides for a check on possible abuse of authority and promotes transparency, good governance and accountability. With its origins in the Scandinavian countries, particularly Sweden, it is no wonder that over the years these countries have been rated among the best in the world in terms of living standards and the quality of governance and accountability. These countries also ranked among the best in relation to perceptions of corruption. The time has come for Guyana to embrace the good practices of other countries if it is to realize its true potential.
TIGI recommends that the Government take urgent measures to reconstitute the Public Service Appellate Tribunal and to appoint an Ombudsman.
Judicial Service Commission
TIGI does not wish to offer any comments, except to state that the prolonged acting arrangements involving the Chief Justice and the Chancellor of the Judiciary remain a source of concern for many stakeholders.
