Yesterday was World Whistleblower Day, the observance of which was to raise awareness of the role of whistleblowers in fighting corruption and maintaining national security. The uncovering of some of the world’s biggest corruption scandals was largely due to genuinely concerned individuals blowing the whistle. According to whistleblowerday.org, ‘[w]whistleblowers are the true guardians of truth and justice in our society, our communities and our workplaces. They are regular citizens, regular workers, regular people who take matters into their own hands to expose secretive acts of crime and corruption’. These individuals need protection against retaliation of one kind or another. Last March, the European Union issued an EU directive on the protection of whistleblowers. All EU Member States are required to incorporate the contents of the Directive into their national laws.
Some good news for climate change advocates. The British government amended its legislation on climate change to set 2050 as the target year for the elimination of net emissions of greenhouse gases, making it the first among the G7 countries. Norway’s parliament also voted to require its sovereign wealth fund to divest from fossil-fuel companies. Over $10 billion of stocks in these companies will be sold off. However, companies such as British Petroleum and Shell that have invested heavily in clean energy technologies are unaffected. (See ‘Economist’ of 15-21 June 2019 and https://thehill.com/policy/energy-environment/448445-norway-to-sell-off-billions-in-fossil-fuel-stocks.)
Last Tuesday, the Caribbean Court of Justice (CCJ) ruled that the no confidence motion of 21 December 2018 was validly passed in the National Assembly, and that the process used to appoint the Chairman of the Guyana Elections Commission (GECOM) was flawed and unconstitutional. We had predicted these two outcomes based on our understanding of the relevant sections of the Constitution, our own reasoning, the arguments presented to the CCJ, and the related comments of the judges.
The CCJ will be hearing arguments today on how to give effect to its rulings, after which it will issue the related orders. The President has agreed to abide with the rulings but insisted that house-to-house registration of voters must be completed first. In his address to the nation, the President stated that the current list is outdated and contains as many as 200,000 incorrect entries, and that persons who have attained the age of 18 since the last elections are not included. The registration exercise is not expected to be completed until November 2019, which means that the 90-day deadline required by the Constitution will again not be complied with. On the other hand, the Leader of the Opposition is insisting that the elections be held within the next two or three months.
There are no conditions attached to the constitutional requirement for holding elections within three months following a successful vote of no confidence in the Government, and GECOM should have been in a state of readiness, especially in view of the configuration of the Assembly since 2011. It has been pointed out that the current list already includes persons who have reached the age of 18 as of 31 October 2018 based on continuous registration exercises that GECOM had carried out, the last of which was ended on 18 July 2018.
Whatever the status of the current voters’ list, we believe that a reasonable compromise at this stage is to forego the planned house-to-house registration of voters and use the current voters’ list, suitably modified by (i) the incorporation of the results of claims and objections provided for by the law; and (ii) the removal of persons who have died since 2015, which list can be easily obtained from the General Register Office. After all, the current voters’ list was successfully used late last year to run off local government elections. The date for the elections could then be set for around mid-October. The Carter Center has also suggested that a list of voters who have migrated can be generated separately and not used, to avoid any possible irregularities in voting, with the proviso that should such a person return to Guyana and wishes to exercise his/her vote, he/she could be allowed to do so, presumably upon proper identification.
We appeal to the three parties involved – the Government, the Opposition and GECOM – to have an urgent meeting of the minds in the national interest to break the impasse surrounding the holding of elections.
A key outcome of the CCJ rulings relates to ‘conscience voting’. We had advocated on numerous occasions that Members of Parliament be allowed to take positions and vote, based on a consideration of the pertinent facts and due reflection of the merits of the arguments presented to the Legislature, and not along party lines as is currently the practice, except in the case giving rise to the successful vote of no confidence. Indeed, no useful purpose is served when the Speaker calls for a vote on, for example, the Estimates of Revenue and Expenditure or for the approval of a Bill. In his ruling, Justice Wit noted that:
While the Constitution contained provisions that prevented members from ‘crossing the floor’ and gave the representative of each list – both the Government and the Opposition – the power to recall and replace a member, those provisions could not, and were not, meant to prevent members from so voting.
Conscience voting will enhance enormously the effectiveness of the work of the Assembly, with consequent improvement in governance at the national level.
Last week’s article dealt with the recent amendments to the Procurement Act to provide for, among others, preference to be given to small businesses approved by the Small Business Act 2004. Section 26 sets out two criteria for the application of the restricted tender approach to procurement: (i) where goods, services or works are of a specialized and highly complex nature and are only available from a few suppliers or contractors; and (ii) where the estimated cost is below the threshold set out in the Regulations. This section has now been amended to provide for suppliers and contractors to meet one of the above two criteria, and not both.
We had stated that Schedule 2 of the Regulations has placed a threshold of $1 million for goods and services (other than consulting services), and $5 million for the execution of works. In fact, there have been three amendments to the Schedule since 2014, the last of which was on 23 January 2019, increasing these limits to $10 million and $20 million respectively.
The only difference between open tendering and restricted tendering is that in the case of the latter, it is not necessary for the procurement of goods/services and works to be advertised every time they are required. However, all the other procedures relating to open tendering are to be followed, including invitation to all eligible suppliers and contractors to bid; bid opening and assessment; and the award of contracts based on the lowest evaluated bids. In this regard, a system should be place to identify suppliers and contractors who meet the requirements for restricted tendering, including the publication of an invitation to prequalify, preferably annually, and the maintenance of a register of such suppliers and contractors, categorized by the types of goods/services and works. It is from this register that suppliers and contractors are invited to bid for the procurement of goods/services and works using the restricted tender approach.
The Minister of Business recently tabled certain amendments to the Small Business Act which are yet to be approved by the Assembly.
Definition of ‘small business’
Section 2 (1) of the Act defines a ‘small business’ to include any person or persons, including a body corporate or unincorporate, carrying on business in Guyana for gain or profit and satisfying, among others, at least two of the following: (i) its employees are not to exceed 25 persons; (ii) gross annual revenue must not exceed $60 million; and (iii) total business assets must not exceed $20 million.
The proposed amendments require a small business to satisfy all three criteria by substituting ‘at least two’ with the word ‘all’. The qualifying requirements therefore become more stringent in an attempt to ensure only genuine businesses are involved.
Registration with the Small Business Council
By Section 2 (2), a small business desirous of becoming an approved small business is required to apply to the Small Business Council to do so and must furnish the following:
(a) A certificate of incorporation under the Companies Act 1991, or registration under the Business names (Registration) Act, or Certificate of Partnership under the Partnership Act, or its registration as a cooperative under the Cooperative Societies Act, or a declaration that the individual or group of individuals are engaged in a small business;
(b) A declaration verifying the particulars specified in Section 2;
(c) A certificate of tax clearance for the previous year; and
(d) A certificate of compliance from the National Insurance Scheme.
The proposed amendments substitute the words ‘A declaration’ with ‘Documentation’ in (b). This would ensure the availability of documented verification of the three criteria listed above for a business to be declared an approved small business.
By Section 2 (3), based on a recommendation from the Council, a declaration by the Minister that a business is an ‘approved small business’ shall be required in order to obtain any eligible benefits specific to the small business sector. The proposed amendments will provide for the Small Business Council to grant ‘approved small business’ status to businesses based on recommendations from the Small Business Bureau established under Section 6. In other words, there will be no involvement of the Minister.
Participation of small businesses in Government procurement
The Government is required to use its best endeavours to ensure that at least 20 percent of the procurement of goods and services required annually by the Government is obtained from small businesses. The proposed amendments will now include not only goods and services but also the execution of works. The omission of the latter must have been an oversight of the drafters of the original legislation.
Preparation of annual Small Business Procurement Programme
The Small Business Council must prepare annually a Small Business Procurement Programme. Procurement is to be based on competitive bidding and in accordance with the provisions of the Procurement Act and the regulations in force. This Act has since been amended to, among others, require procuring entities to acquire goods, services and works only from small businesses approved under the Small Business Act. To give effect to this requirement, the Minister, with the advice of the Public Procurement Commission or the National Board, is to make the necessary regulations.
In our article of 24 December 2018, we had suggested that a maximum threshold should be set below which small businesses can benefit from the award of government contracts. Considering that an approved small business must not have an annual income of more than $60 million, the threshold could be: $15 million for goods and services; and $7.5 million for construction/maintenance works. It would also be appropriate for the type of goods/services and works that would qualify for consideration under the Small Business Act to be clearly defined. This is necessary to avoid compromising on the quality of certain goods/services, for example, drugs and medical supplies, and works performed. The overriding consideration is that only reputable suppliers and contractors must be engaged in government procurement.
The Council is required to prepare and submit to the Minister an annual report on the progress made in implementing the Small Business Procurement Programme, forming part of the Annual Report on Small Business.
Conclusion
The requirement for small businesses to be given preference in relation to the award of government contracts is a step in the right direction to enable them to develop capacity. It is, however, unclear at this point in time how they are likely to benefit from at least 20 percent of Government procurement. We therefore await the issuing of the related Regulations to give effect to this requirement.
We reiterate our previously stated position that care must to be taken to avoid contract-splitting in order to meet the 20 percent requirement for small businesses. Contract-splitting is prohibited under the Procurement Act. It would have been more appropriate if the Small Business Act had referred to the threshold suggested above, rather than the 20 percent. The application of the latter is unlikely to be achieved without breaching the Procurement Act.
