I was privileged to have been invited to participate in the University College of Cayman Islands Caribbean Anti-Corruption Conference held on 19-21 March 2014. I also had the good fortune of listening to two presentations on public procurement in Jamaica from the former Contractor-General, Mr. Greg Christie and the current Contractor General, Mr. Dirk Harrison. Mr. Harrison’s Assistant was kind enough to also provide me with a copy of the 26th Annual Report of the Contractor-General, and I was able to access the Contractor-General’s Act to obtain more information about the procurement practices in Jamaica.
Given the current impasse in Guyana as regards the establishment of the Public Procurement Commission and the insistence of the Government that Cabinet should continue to be involved in the procurement process, I felt that it would be a good idea to examine the Jamaican model with a view to ascertaining what aspects of it may be applicable to Guyana.
Appointment of the Contractor-General
It has now been 21 years since the Contractor-General model has been in place in Jamaica, the related legislation having been passed in 1983 and amended in 1985 and 1999. The Contractor-General is appointed by the Governor-General after consultation with the Prime Minister and the Leader of the Opposition. He/she serves for seven years and may be re-appointed for periods not exceeding five years at a time. The Contractor-General, however, cannot serve beyond age 75. However, he/she may be allowed to remain in position to facilitate the completion of any assignment embarked on prior to the date he/she is required to demit office.
The Contractor-General must give full-time attention to his appointment and cannot accept any paid employment in any other capacity during his/her tenure of office. His/her emoluments and other conditions of service, including pension and gratuity, are similar to those of a Puisne Judge and are a direct charge on the Consolidated Fund.
Responsibilities of the Contractor-General
With reporting relations to the Legislature, the Contractor-General is responsible for monitoring the award and implementation of all government contracts to ensure that: (a) such contracts are awarded impartially and on merit; (b) the circumstances in which each contract is awarded (or as the case may be, terminated) do not involve impropriety or irregularity; and (c) the implementation of each contract conforms to the terms thereof. That responsibility also extends to the grant, issue, suspension or revocation of any prescribed licence.
A government contract includes any licence, permit or other concession or authority issued by a public body, or agreement entered into by a public body for carrying out of building or other works or for the supply of any goods or services. A public body in this context refers to a Ministry, Department or agency of the Government; a statutory body or authority; or a State-owned/controlled company.
The Contractor-General is entitled to be advised of the award and, where applicable, the variation of any government contract by a public body responsible for such a contract. In addition, he/she must have access to not only all books, records, documents, stores or other property belonging to the government but also premises where work on a contract is being carried out. In addition, the Contractor-General may require a public body to furnish such information he may require to enable him/her to discharge his/her duties. In the discharge of his/her duties, the Contractor-General is not subject to the direction or control of any person or authority.
To enable him/her to discharge his/her responsibilities, the Contractor-General is authorized to employ persons at such remuneration and conditions of service as approved by a Parliamentary Commission comprising the Speaker as the chairperson; the President of the Senate; the leaders of the government and Opposition business; and the Minister of Public Service. During 2012, the Office of the Contractor-General had a staff complement of 56.
The scope of the Contractor-General’s investigations includes the registration of contractors; tender procedures adopted; the basis of the tender awards; and the implementation of the contracts. However, any investigation of a contract relating to defence, or the supply of equipment to the Security Forces, requires the approval of Cabinet, and the related report is to be made to that body only.
National Contracts Commission
The Contractor-General’s Act provides for a National Contracts Commission (NCC) comprising eight members drawn from the following:
* Six ex-officio members: one nominated by the Contractor-General to serve as the Chair, and five designated by Cabinet from public bodies of which at least three must be public officers;
* One official from the Building Industry; and
* One from the Professional Services Association of Jamaica.
The members of the NCC are appointed by the Governor-General and serve for seven years. Appointments are, however, renewable. The NCC carries out its work through a number of sector committees. The Contractor-General’s office provides technical and administrative support for the NCC. At the time of writing, consideration is being given to the separation of the NCC from the Contractor-General’s office. According to the latter, this move, which is in an advanced stage, will enhance the independence of both bodies.
The principal objective of the NCC is to promote efficiency in the award and implementation of government contracts and to ensure transparency and equity. The NCC’s main functions are to:
* Examine applications for the award of government contracts;
* Approve or oversee the award of contracts within specified limits;
* Make recommendations to Cabinet for contracts above a certain limit;
* Register prospective contractors;
* Maintain a list of registered contractors based on the categories of work performed;
* Assess continually the financial and human resources, technical and managerial capacity and performance of contractors;
* Make recommendations to Cabinet for improving efficiency of the procedures relating to the award of contracts;
* Oversee the activities of its sector committees; and
* Make regulations prescribing the qualifications of contractors, procedures for the submission of tenders, the requirement for performance bonds, and competitive bidding procedures.
Reports of the Contractor-General
The Contractor-General is required to submit an annual report to the Legislature relating generally to the execution of his/her functions. He/she may also submit reports that, in his/her opinion, require the attention of Parliament. The reports are to be addressed to the Speaker and the President of the Senate. Reports may also be published in the public interest but not before they are laid in the Legislature.
Comparison with Guyana’s public procurement systems
The Guyana public procurement model is somewhat different from that of Jamaica. The Constitution was amended in 2001 to provide for the establishment of the Public Procurement Commission comprising five members nominated by the Public Accounts Committee and ratified by two-thirds of the Members of the National Assembly. In addition, there is the Procurement Act of 2003 which provides specific details relating to the procedures leading to the award of government contracts.
There is a hierarchy of authority limits and levels, with the National Procurement and Tender Administration Board (NPTAB) being responsible for the award of contracts within a certain limit. Beyond that limit, the NPTAB makes recommendations to Cabinet which is required to offer its “no objection”. Cabinet can only object to a proposed award on procedural grounds.
The Act, however, provides for the involvement of Cabinet to cease or to be progressively phased out upon the establishment of the Commission
In the case of Jamaica, the NCC is responsible for the award of government contracts up to a certain limit. Beyond that limit, the NCC makes recommendations to Cabinet. The NCC is therefore the equivalent of our National Procurement and Tender Administration Board. The difference, however, is that the appointment of the members of the NCC is made by the Governor-General and comprises officials nominated by the Contractor-General, Cabinet, the Building Industry and the Professional Services Association of Jamaica, and there is no reporting relationship to the Executive. In the case of Guyana, it is the Minister of Finance who makes the appointment (five from the Public Service and two from the private sector) and there is a reporting relationship to him. Therein lies the weakness in our system: the Minister is a key member of Cabinet, and it is not publicly known whether Cabinet rejected the proposed award of a contract since the Procurement Act came into being.
In Guyana also, we do not have the equivalent of a Contractor-General, and all contract investigations are integrated into the work of the Auditor General. To this extent, the Jamaican model is superior to that of Guyana, especially given the limitations of the Audit Office. Indeed, it would be too much of an asking for the Audit Office to carry out contract investigations on a scale carried out in Jamaica by the Contractor-General.
Conclusion
Given the numerous cases of allegations of corrupt behaviour in relation to the award of government contracts, Guyana’s public procurement systems can benefit tremendously if Jamaica’s Contractor-General model is adopted. However, the model needs to be modified to provide the Contractor-General with powers to prosecute, and there should be a special court to try cases arising from contract investigations.
As regards the continued involvement of Cabinet in the procurement process and the undue delay in the establishment of the Procurement Commission, in the spirit of compromise, Cabinet should be allowed to continue its “no objection” role on condition that: (a) any objection must be on procedural grounds as provided for under the existing legislation; and (b) the responsibility for the appointment of the members of the various tender boards, especially the NPTAB, be transferred to the Commission.
