The Public Procurement Commission has put government agencies on notice of their legal obligations in making public their agreement or disagreement with the report of evaluators of respective contracts
Under the subject heading ‘Requirement for an opportunity for the Procuring Entity to agree or disagree with the Report of the Evaluation Committee prior to contract award’ and quoting Section 39(3) of the Procurement Act, the PPC yesterday published a circular in the state owned Guyana Chronicle newspaper reminding them of the law.
“The procuring entity shall, if it agrees with the Report of the Evaluation Committee, publicly disclose the name of the renderer identified by the Evaluation Committee as the lowest evaluated tenderer. If the procuring entity does not agree with the Evaluation Committee’s determination, the procuring entity shall issue an advisory recommendation to the Evaluation Committee regarding which bidder should be the lowest evaluated bidder, which recommendation the Evaluation Committee shall observe,” the PPC reminded.
“The Public Procurement Commission hereby reminds that the aforesaid provision is mandatory and must be complied with accordingly,” the notice stated.
The Public Procurement Commission said that it issued the “circular to inform and remind Procuring Entities and NPTAB of the aforesaid legislative requirements and the mandatory requirement for adherence thereto, particularly, the role of the Procuring Entity in the contract award decision.”
While no case was cited, the PPC pointed out that the Report of the Evaluation Committee must be sent by the National Procurement and Tender Administration Board (NPTAB) to the Procuring Entity, “before the contract award decision is made and or published.”
In turn, the Procuring Entity must, within such reasonable time of receiving the report, consider it and inform NPTAB, in writing, of its agreement or disagreement with the report of the Evaluation Committee. It did not state or give a guideline for “reasonable time”.
Also, on the Procuring Entity’s agreement, the PPC said, “the contract award decision in accordance with the Report of the Evaluation Committee shall be made and published on NPTAB’s website.
“If the Procuring Entity is not in agreement with the Report of the Evaluation Committee, it shall so indicate in writing to NPTAB and issue an advisory recommendation…. The contract award decision shall be made in accordance therewith and published on NPTAB’s website.”
Facing criticisms that it was not discharging its functions, the PPC had in April of this year said that several complaints before it were “under active consideration”. The statement had come on the heels of a blistering from the Alliance for Change that the procurement body was not doing its work.
AFC Parliamentarian David Patterson had blasted the PPC for spending taxpayers’ money but not executing its constitutionally enshrined functions and addressing complaints. He also expressed bewilderment that the PPC was seeking legal advice on its functioning despite the fact that a previous commission operated under the current provisions.
Patterson had said that he had been unofficially informed that the commission, after being dissatisfied with internal legal advice, was in the process of seeking the following legal advice from external sources:
– To determine if the commission can execute any of its functions listed in the Constitution, which is the supreme law of this country.
– To determine if the commission can carry out any investigation into any breaches which occurred before being sworn in, in July 2022.
– To determine, if only suppliers or contractors directly associated with a specific contract can request investigation not members of the public.
“This is a bizarre and unorthodox position since a Member of Parliament previously brought a complaint regarding the Demerara Harbour Bridge feasibility study, which the PPC investigated,” Patterson said.
In his follow-up letter last month, Patterson again roasted the PPC over the soliciting of legal advice and other matters.
“In my previous statement to the press, I referred to the fact that the PPC is seeking external legal advice to find out if it can carry out its function and is engaging the services of a strategically chosen lawyer to the tune of US$4,000 – a blatant disregard for the internal legal team, a waste of taxpayers’ money and a `go-slow’ tactic,” he wrote. “Further, is the Chairperson saying to taxpayers that Parliament and the President erred in law when they approved, appointed, and swore in the five members of the commission, under the same constitutional provisions which the Chairperson is now inferring does not allow the Commission to carry out its function?!
“Even further, is the supreme law of this land, the Constitution Article 212 W and 212 AA which established and mandated the function of the Commission, now null and void? Does this also mean that the Minister of Finance, the Finance Secretary, and the entire Parliament are breaking the law by continuing to provide funds from the treasury to a commission that legally should not be in existence? It seems so, since the commission, through the actions of the Chairperson and the Deputy Chairperson, is withholding its core function to investigate and monitor pending the outcome of the legal advice sought – an illogical, go- slow tactic and blatant disregard to transparency and good governance – one which was aptly carried out by the previous commission under the coalition government!”
Patterson opined, “The PPC lacks leadership and independence, and the well qualified technical staff must be fiddling their fingers, demotivated, and stifled to execute this function, since there is not one single investigation that was carried out by the current PPC – the Annual Report of the PPC will be of much interest to read! I have highlighted before that the commission, instead of being occupied with its core constitutional mandate to monitor and investigate, is preoccupied with the hiring and firing of staff. The revelations from previously fired staff were damning – fired for taking conflicting instructions from the Chairperson versus the CEO – no fault of that employee.”
“Duties assigned to technical staff have been delegated to other staff and also outsourced: the case of the Legal Department cited earlier; the Public Relations Department’s work is also being outsourced. Is the Public Procurement Commission flouting the procurement laws to outsource services to friends? Previous employees hold the strong view that black employees have been the target of dismissal and non-confirmation of employment. Is this the One Guyana we speak about? Is this the constitutional agency that Parliament and President envisioned to uphold the principles of transparency and accountability to the people of this country? The leadership deficit must be corrected and the PPC technical staff must be empowered to execute its function.”
In its response, the PPC said that the commission, as is any citizen of the Cooperative Republic of Guyana, is entitled to seek legal advice as it has so done and is perplexed by the apparent contention made that it is not entitled to do so and is derelict by so doing.
The PPC’s Chief Executive Officer Michael Singh also addressed Patterson’s claims about staffing at the PPC.
“For the protection of the privacy of members of staff including former members of staff, the commission declines at this time to comment publicly on their conduct and or performance save and except to say that: –The allegations touching and concerning the reasons for the termination are inaccurate. All members of staff previously employed by the commission and met by this commission on its establishment have been retained, contracts renewed and continue to function in their respective roles.
“On the establishment of this commission there were only five members of staff, mostly administrative and the commission therefore has since its establishment taken steps to build capacity at the commission particularly its technical arm,” he added
The AFC-nominated commissioner heads the HR committee of the commission,” Singh stated.
He also deprecated the insinuation that the PPC was outsourcing its work to friends.
Singh added that training was not the only function it was currently engaged in.
“While training activities may be the most visible due to their nature, the commission is entrusted with other functions including but not limited to public awareness, legislative reform, monitoring, debarment and investigations as enabled by the Procurement Act. The commission has set out a work plan for the current fiscal year, predicated on its functions and on which approval was made of its budget in the National Assembly, to whom it is mandated to report,” he stated.
