Three important appointments were recently announced, namely the Commissioner-General of the Guyana Revenue Authority (GRA), the Director of the Financial Intelligence Unit (FIU) and members of the three-person Bid Protest Committee. In a previous article, I had raised concerns about the former Commissioner-General having received his retiring benefits and being allowed to 
remain on the job, in addition to divulging of confidential information about taxpayers’ affairs. The then Commissioner, in his customary fashion, reacted in a “letter to the editor” personally attacking me. GRA reportedly pulled up my tax file and sent its cameramen to video-tape my residence and to look for my car. The contention was that I had returned overseas and was therefore in breach of my remigrant’s status, whereas I was on an assignment with CARICOM that required my visit to Grenada, Barbados and Trinidad & Tobago. I personally met with the Commissioner over the article, and in the course of discussion I pleaded with him to demit office but to no avail. What happened thereafter is now history.
I had written several articles on the Anti-Money Laundering and Countering the Financing of Terrorism (AML/CFT) Act 2009 and the lack of effective functioning of the FIU. I also wrote extensively on the need to not only establish the Public Procurement Commission mandated by the constitutional amendment of 2001 but also to activate the relevant section of the Procurement Act 2003 to address complaints from suppliers and contractors in relation to the award of Government contracts.
Appointment of Commissioner-General
Mr. Godfrey Statia, a former Deputy Commissioner of the then Inland Revenue Department, has been appointed to the position of Commissioner-General of the GRA. He applied for the position following a vacancy notice, and attended an interview. A few days later, the Board announced that no suitable candidate was found and accordingly proceeded to re-advertise for the position.
Other persons had applied for the position and were shortlisted, including a Guyanese chartered accountant of good repute who was flown in at the expense of GRA to attend the interview. Apart from holding professional accounting qualifications from the UK and Canada (FCCA, CPA and CGA) as well as an MBA, this individual owns an accounting and tax practice in Canada, and had several years’ experience working with international accounting/firms Deloitte & Touche and KPMG. He is also a Certified Fraud Examiner and is pursuing a law degree from the University of London. The Board’s announcement that it did not find a suitable candidate for the position therefore came as a surprise. Despite this, the Board entered into negotiations with one of the interviewed candidates in relation to the compensation package on the basis of which the re-advertisement was withdrawn and the appointment made.
Upon closer examination of the original vacancy notice, it was evident that the job requirement had placed external candidates in a position of disadvantage. This was because of the stipulation of at least 15 years’ experience in customs administration and taxation, eight of which must be at an executive level. There was no provision for equivalent external experience, as is the normal practice. This requirement would have obviously dissuaded other potentially good candidates from applying for the position. In some ways this could be considered as bid rigging.
Many persons enquired whether I had applied for the position to which I responded in the negative because of the above requirement, and of course because I am no longer of youthful age. When I returned from Afghanistan in May 2015, I did offer my services to assist in the reforming of the GRA but my offer was not taken up.
Congratulations to Mr. Statia. He is reportedly a partner in the firm Hinds & Statia Financial Services in Georgetown, and a tax consultant for the GT&T and a number of other prominent businesses. One hopes that he will relinquish these positions since the failure to do so will pose a serious conflict of interest.
Appointment of Director of FIU
Last Monday, the National Assembly approved the appointments of Mr. Mathew Langevine and Abiose Thomas as the Director and Deputy Director respectively of the FIU. Referring to the disagreement over the appointment of the Deputy Director, Member of Parliament Juan Edghill expressed the view that “[T]he country is being robbed of one of the finest persons who is well placed to serve as the Deputy Director …”. He further stated that some eminently qualified applicants were disqualified even before the shortlisting of the candidates who had applied because they were considered politically exposed persons (PEPs). On what basis this was done is not clear, as the Act does not preclude a PEP from being appointed Director. Section 8, as amended, sets out only the following eligibility requirements: (a) at least ten years’ experience in law, finance, economics, or accounting at the highest managerial level; and (b) formal training in, and knowledge of, statistics, financial investigations or banking.
The Act defines a politically exposed person (PEP) as “an individual who is or has been entrusted with prominent functions on behalf of the State, including a Head of State or of government, senior politician, senior government, judicial or military officials, senior executives of State-owned corporations, important political party officials, including family members or close associates of the PEP whether that person is resident in Guyana or not”. According to the Financial Action Task Force (FATF), many PEPs hold positions that can be abused for the purpose of laundering illicit funds or other predicate offences such as corruption or bribery. Because of the risks associated with PEPs, the FATF Recommendations require the application of additional AML/CFT measures to business relationships with PEPs. These requirements are preventive (not criminal) in nature, and should not be interpreted as meaning that all PEPs are involved in criminal activity.
FATF acknowledges that the language of the definition suggests that “once a PEP, always a PEP”. However, its guidance notes clearly suggest that financial institutions ought not to refuse a legitimate business relationship with a PEP who is no longer entrusted with a prominent public function. Rather, they need to adopt a risk-based approach and take effective action to mitigate any associated risk, in the context of “knowing your customer”, and may require additional due diligence procedures to be carried out.
In last week’s article, we raised the question about whether a person who no longer holds a prominent function can be ruled ineligible for appointment to a senior position in an agency (whether government or otherwise) that is required to identify PEPs and monitor their financial activities in accordance with the requirements of the AML/CFT Act? The answer clearly is in the negative, unless enhanced due diligence suggests otherwise. Indeed, it will be a violation of the individual’s constitutional right to seek gainful employment commensurate with his/her qualifications, skills and experience. We now have a situation where a committee of the highest decision-making body of the land, with the full endorsement of that body, is arbitrarily discriminating against PEPs who no longer hold prominent positions.
For example, as a former Auditor General who demitted office 12 years ago, some 10 years before my statutory date of retirement, I am still considered a PEP. Assuming that I had applied for the position of the Head of FIU, would I have been debarred for any consideration for the position? Should an aggrieved person not seek a judicial review of the matter? And to borrow the words of Mr. Edghill, is the country not being robbed of the finest persons who are well-placed to serve? Lest we forget, Members of Parliament, including their children other family relations and close associates, are also PEPs. Many of them, especially the younger ones, have a long career ahead of them. The decision by the Assembly to exclude PEPs, especially those who no longer hold prominent positions, therefore sets in train a dangerous precedent for other employers to follow!
Mr. Edghill raised the valid concern that the appointments were made in an environment where no Anti-Money Laundering Authority is in place, as provided for by the first amendment to the AML/CFT Act that the President had assented to a little over a year ago. The Member of Parliament quite correctly asserted that “[I]t is like putting the cart before the horse because we don’t have an Authority and the FIU is to function in the construct of an Authority”. But, was he not part of the Committee that proceeded with the appointment of the two top officials of the FIU without first ensuring that the Authority is in place? The Authority is to provide oversight of the functioning of FIU and is to comprise ten members appointed by the Assembly by simple majority on the recommendation of the Parliamentary Committee on Appointments. With Parliament going into its two-month recess on 10 August, and considering the time it will take for the Appointments Committee to get its act together, we may very well not be able to have the Authority in place before the end of the year. During this period, there will be a lacuna in oversight responsibilities.
Activation of the Bid Protest Committee
In accordance with sections 52-53 of the Procurement Act, a bidder whose tender or proposal has been rejected may submit a written protest to the procuring entity within five business days following publication of the contract award decision. If the protest is not reviewed within this period, the bidder may submit a request for review to an independent three-person Bid Protest Committee. An aggrieved bidder may also request a review by the Committee within three working days, if he/she is not satisfied with the procuring entity’s response.
The Committee must issue a written decision within 15 business days of the conclusion of a review, stating the reasons for the decision and the remedies granted, if any. Damages may include only compensation to recover the cost of the bid preparation. Pending the completion of the Committee’s review, final contract award is suspended. However, this is not applicable if a procuring entity certifies that the procurement should proceed in the public interest. In this case, the certification must state the grounds therefor. The decision of the Committee shall be final and immediately binding upon the procuring entity.
The Bid Protest Committee is to comprise one member appointed by the Minister of Finance, one by the Association appearing to the Minister to represent contractors, and one by the Attorney General. The members shall be appointed from among professionals who are particularly competent in the field of procurement. For 13 years following the passing of the Procurement Act, no Bid Protest Committee has been in place to address concerns from aggrieved suppliers and contractors. It is therefore a welcome development that the Government has seen it fit, albeit somewhat late, to activate this Committee with the appointment of the following persons: a nominee from the Attorney General’s office as the chairperson; Mr. Archibald Clifton, former manager of GT&T; Ewart Adams, insurance official; and Colin Sawh, a security company official. The first test will be the protest in relation to the award of the contract for the operation and maintenance of the Haags Bosch Landfill. The Committee’s decision will have to be made public.
Meanwhile, we anxiously await the establishment of Public Procurement Commission.
