By Donald Rodney
Part 5 – Embracing stakeholders
It should have been emphasized in Part 4 that embracing disclosure is the primary responsibility of government through the various procurement entities and NPTAB – this is an unfortunate omission. (Also “Disclosure” is omitted as sub-heading in printing Part 4, second section, fourth paragraph down, after words “… of the procurement process).” However ‘embracing stakeholders’ is squarely within the responsibility of the PPC, the phrase simply meaning here, seeking to extend “fairness and equitable treatment” to all stakeholders, including government and the public. (Fairness and equitable treatment to bidders is already an objective in the Act). Embracing stakeholders in this way is highly desirable in the contexts below.
New conformity contracts
The first context is in recognizing the standing of bidders in the conformity contracts formed. This is already operationalized in the Act but is not recognized amidst the muddle of language and phases: Part 3A. (Hence sub-heading above is repeated from Part 1, for emphasis). In the 1990 Blackpool case mentioned in Part 1 Lord Bingham outlined a process where (1) an employer of construction work is in a heavily-weighted favoured position if only because he need not give reasons for acceptance or rejection of tenders. Bingham gave a list of five other telling reasons why the employer is so favoured, to which could be safely added for the public employer in Guyana, the unchallenged introduction of pseudo-criteria into evaluation of tenders; (2) bidders are exposed to a downside heavily-weighted risk that their tenders would not be accepted.
It must be intervened here to state that this latter risk is the genesis of why small, medium, national and international contractors and suppliers face constant temptations to make facilitation payments – some small some dazzlingly huge – to influential persons, inside or outside of tender evaluation teams, to steer contract awards in a particular direction. It is to stave off existential threats to their quoted construction company, family business containing intergenerational wealth, or just to maintain lifestyle – amongst other reasons.
In authoritatively establishing the conformity contract, whereby all conforming bidders will have their tenders considered as a matter of contractual right, Bingham exhibited a ‘fairness and equitable treatment’ approach, comprising a re-balancing of the procurement playfield to keep it level, seeking to account for the relative strengths and weaknesses of employers and bidders. (See also Part 1). This is why it is essential for PPC to adhere to the conformity contract principle. It is a prerequisite to seeking to extend similar social equity principles to other stakeholders.
Other contexts
Fortuitously former Speaker of the National Assembly, Mr Ralph Ramkarran, made commentary recently on public procurement (SN of Sept. 22, 2024). He usefully summarises that PPC was established as a Constitutional Commission in 2001 amidst calls from party political contestants to curb alleged fraud and discrimination. It took an extended period until 2015 before the Commission was appointed, still with calls of discrimination. However Ramkarran also projects that formal “supplier diversity” is needed or is overdue, in public procurement in Guyana to allow for equal opportunity to all sectors of the population, differentiated by gender, history and capacity, amongst other attributes. This aligns well with a requirement that PPC embraces all stakeholders by seeking to extend fair and equitable treatment to potential bidders from various parts of the population, as well.
The final context for embracing stakeholders is the context of ‘trust’. In its policy brief ‘Trust in Public Institutions’ of August 2021, UNDP Governance Centre states that trust in public institutions is important for the implementation of policies requiring citizens’ cooperation and compliance. (Who better to refer to here than UNDP which is an authority on governance?) On this basis if bidders are to comply. resisting the temptation of offering ‘friendly incentives’, evaluators are to refrain from accepting incentives and extraneous directions from influential persons, and if unsuccessful bidders are to be undeterred in lodging their genuine complaints, then PPC must demonstrate that trust is warranted in that Constitutional Commission. A trust that PPC would uphold the law and be consistent in recognising the Objectives of the Act at all times. This trust of course must be earned from a Guyanese population a sizeable part of which are die-hard sceptics at any particular time, depending on which way the political wind is blowing. However it is suggested here that PPC can proceed by being as transparent as possible, ready and open to questions – even from sceptics; and so embrace all stakeholders.
The potential
As regards the potential for overcoming the debated procurement malpractices referred to at the outset of this narrative, all participants in the process must uphold the law, then it is suggested that government should embrace disclosure (see Part 4 – Disclosure) and PPC embrace stakeholders, as above – and proceed from there. In the meantime, investigate all red flags, adjust the system or sanction all found personally responsible.
On the other hand there has been no event by PPC or any other authority, springing to action since the uncovering of blemishes arising from our present mindset, namely: missing evaluation criteria “quantified in monetary terms”; open breaches of the Act in the GDF procurement; PPC suppression and denial of reasons; unmasking of pseudo-criteria, and so on. (See various parts of this narrative). It remains to be seen if and how we can arouse ourselves from the current paradigm.
(This is the final Part)