The Government is insisting that it sought the approval of the National Procurement and Tender Administration Board (NPTAB) regarding its sole-sourcing of the US$34 million e-governance contract while asserting that it was a project under national security, sources say.
However, former Auditor General, Anand Goolsarran says that while sole-sourcing is catered for under national emergencies and national security, the awarding of the contract facilitated by United Arab Emirates’ (UAE) Sheikh Ahmed bin Saeed al Maktoum and for electronic cards and therefore does not qualify. He still believes that the contract violates the Procurement Act.
“This is a bilateral agreement… and it was a project under Section 28(E) of the Act because it of national security. National Security projects are different…,” a source at NPTAB told Stabroek News yesterday as they explained that the government had written to the agency informing of the contract.
“They reached out to two companies and they submitted their [prototypes] to the National Data Management Authority [NDMA]. The NDMA wrote to NPTAB that a company was selected and when that came, NPTAB sent it to Cabinet… everything was done in accordance with the Act,” the source added.
But Goolsarran rebutted that explanation, pointing out that while the sole-sourcing section of the Act was used, the justification is flawed because the project cannot be classified as being one of national security.
“Section 3(2) of the Procurement Act states that the Act does not apply to procurement involving national defence or national security. Additionally, by Section 28 (e), where the procuring entity determines that Section 3(2) is applicable as a result of national security concerns, then it may consider the single-source method as the most appropriate method of procurement. Single-source procurement occurs mainly in relation to the following: a) where the goods or construction are available only from a particular supplier or contractor, or a particular supplier or contractor has exclusive rights with respect to the goods or construction, and no reasonable alternative or substitute exists; b) the services, by reason of their highly complex or specialized nature, are available from only one source; and c) owing to a catastrophic event, there is an urgent need for the goods,
services or construction, making it impractical to use other methods of procurement because of the time involved in using those methods.”
“The Act does not define “national security” and therefore we have to apply the ordinary meaning of the words. National security is defined as “the safety of a nation against threats such as terrorism, war, or espionage”. It is concerned about foreign relations and protection from internal subversion, foreign aggression to terrorism. It can hardly be argued that the production of electronic ID cards is a matter of national security,” he added.
Guyana’s Procurement laws deals with single-sourcing contracts under Section 28.
“The procuring entity may engage in single-source procurement when – (a) the goods or construction are available only from a particular supplier or contractor, or a particular supplier or contractor has exclusive rights with respect to the goods or construction, and no reasonable alternative or substitute exists; (b) the services, by reason of their highly complex or specialized nature, are available from only one source; (c) owing to a catastrophic event, there is an urgent need for the goods, services or construction, making it impractical to use other methods of procurement because of the time involved in using those methods,” the definition states.
It continues, “ (d) the procuring entity, having procured goods, services, equipment or technology from a supplier or contractor, determines that additional supplies must be procured from that supplier or contractor for reasons of standardization or because of the need for compatibility with existing goods, services, equipment or technology, taking into account the effectiveness of the original procurement in meeting the needs of the procuring entity, the limited size of the proposed procurement in relation to the original procurement, the reasonableness of the price and the unsuitability of alternatives to the goods in question; or (e) the procuring entity applies section 3 (2), to procurement involving national defence or national security and determines, as a result of national security concerns, that single-source procurement is the most appropriate method of procurement.”
Hurriedly
On March 10, the government hurriedly announced the virtual signing of the deal with the German- headquartered Veridos with the UAE acting as an intermediary. To date the Emirates’ financial role in the deal has not been defined.
Critics have pointed out that the deal is a flagrant violation of the country’s procurement laws and has been concluded without the requisite privacy and data security laws in place. A key feature of the deal would be an electronic ID card that consolidates the data of the holder, providing for easier access to public and private sector services.
On Monday, the Guyana Human Rights Association (GHRA) called on the government to pause the project and submit it to Parliament.
In a statement, the GHRA remarked that the signing of a pact for e-governance “without the framework legislation covering Data Protection being in place, is reckless in the extreme. Given the haste, absence of public consultation and threats to the integrity of personal information, not to mention the seeming illegality of sole-sourcing the project, the Guyana Human Rights Association… is calling for the project to be paused and submitted to Parliament.”
The GHRA noted that Guyana is unique in the Caribbean at present in having no Electronic Transactions Act to take the place of the time-consuming and stressful paper-based procedures, for example, in registering births and deaths, opening a bank account, or registering a company.
For a number of years, the GHRA explained, CARICOM countries have been holding serious consultations on Data and Privacy Protection legislation on vital matters such as terms of consent, data-sharing by government agencies, and the ‘right to be forgotten’. The human rights body opined that all of this is sidelined by a government dazzled by the prospect of “e-health, e-education, e-security, e-agriculture, electronic permits, and licence processing, etcetera.”
According to the Tech Transactions & Data Privacy 2022 report, published in the recent edition of The National Law Review, the GHRA said that “businesses are increasingly pivoting to digital service models that leverage the internet in place of in-person transactions.”
GHRA also highlighted that the key democratic and ethical issues associated with the adoption of such legislation is the misuse of data transferred internationally by countries and multinational companies. It informed that the European Union, for example, recognises only thirteen (13) countries to which data may be transferred safely, the United States not being one of them. Apart, therefore, from the practical challenges entailed by digitalisation, the Association underlined that there are also human-rights concerns in relation to the protection of personal and nationally sensitive data.
“Contrary to the caution required in this area, Guyana’s transition from a state of electronic illiteracy to a digital world is being placed (and if sole-sourced – illegally) in the hands of foreign private companies, apparently orchestrated by the United Arab Emirates, tarnished by its illegal gold transactions”, the GHRA said.
It added: “The most prudent course of action would be for Guyana to engage with CARICOM in an effort to ensure that this new project harmonizes with and benefits from the Parliamentary experience of CARICOM States such as Barbados, Trinidad, and Jamaica. Indeed, as a gesture of regionalizing Guyana’s new-found wealth, Guyana’s Parliament should offer to fund a digitization process in CARICOM”.
