On the climate change front, the Arctic could lose its sea ice within the next three years, according to researchers. The ice currently covers 1.65 million square miles, which is below the average of 2.65 million square miles during the period 1979 to 1992. The disappearance of the sea ice will lead to a significant impact on the world’s ecosystems and weather patterns. However, it is unlikely that there will be big changes in sea levels because the ice is already in the ocean. An ice-free Arctic would trigger extreme weather events, including cold spells of -4°F (-20°C) as far south as Italy, or forest fires in Scandinavia. See: Arctic could be ice free by 2027 in ‘ominous milestone’ for the planet.
The opposition political party in Guyana, APNU+AFC, is calling on the Government to include opposition representation on the National Procurement and Tender Board Association (NPTAB) as well as regional tender boards in order to reduce corrupt practices and to ensure transparency in the procurement process. The party gave the assurance that it would do so if elected to office. However, the Vice-President Bharrat Jagdeo rebuffed the call, contending that if this were to happen, it would frustrate the work of the Executive because of the “negative and obstruction” attitude of the Opposition. He was reported to have stated that ‘[i]t is something we will never contemplate until there is a change in the culture of the opposition’. But are the procurement entities, including the Public Procurement Commission, meant to be political bodies?
In today’s article, we explore this issue with reference to the constitutional/legislative frameworks that establish these bodies.
Public Procurement Commission
In our article of 12 February 2024, we referred to the 2001 constitutional amendment providing for the establishment of the Public Procurement Commission (PPC) whose main function is to monitor public procurement and the related procedures to ensure that the procurement of goods and services and the execution of works are conducted in a fair, equitable, transparent, competitive and cost-effective manner in accordance with law and policy guidelines as determined by the National Assembly. This amendment was the result of widespread concerns about the basis of the award of government contracts, the extent of leakages in government procurement, and the absence of a legislative framework relating to procurement matters. The previous framework – the Tender Board Regulations – did not have the force of law and was in dire need of overhaul, as assessed by Auditor General in several of his reports prior to the amendment.
The Commission is to comprise of five members appointed by the President after their nomination by the Public Accounts Committee (PAC) and the approval of at least two-thirds of the elected Members of the Assembly. The fact that this level of approval is needed clearly suggests that the appointed members must enjoy the full confidence of both sides of the House. It also indicates that they must be free of political affiliation or association, whether directly or indirectly. This is why the Constitution specifically provides for the PPC to function independently and impartially and to discharge its responsibilities fairly. To reinforce this principle, the Commissioners are to have expertise and experience in procurement, legal, financial, and administrative matters to enable them to discharge their responsibilities effectively. This requirement clearly emphasises the need to have technically and professionally qualified people to serve on the Commission, especially in the area of public procurement.
It, however, took 15 years for the Commission to be activated through the appointment of the first commissioners in October 2016. The main reason for this failure was the reluctance of the Cabinet to surrender its role in offering “no objection” to the award of contracts in excess of G$15 million, as provided for by the Section 54(1) of Procurement Act 2003. Regrettably, this practice continues to date, despite the requirement for the Cabinet and the PPC to review annually the above threshold with a view to increasing it over time and progressively phasing out the Cabinet’s involvement in favour of decentralized process. By Section 54(6), the Cabinet’s involvement is to cease upon the constitution of the Commission, except for pending matters.
At the time when the first commissioners were appointed, the Chairperson of the PAC was President Irfaan Ali. Instead of following a rigorous process involving public advertisement, shortlisting of eligible candidates, interviewing, and selecting the best candidates for consideration by the Assembly, the PAC took the least line of resistance by requesting the two major political parties to nominate their candidates based on their representation in the Assembly: three from the APNU+AFC; and two from People’s Progressive Parties/Civic (PPP/C). This practice was repeated in relation to the appointment of the current commissioners. Is it any wonder that there is widespread dissatisfaction as regards the functioning of the PPC, especially considering the numerous violations that have taken place over the years in relation to the award of contracts? Additionally, considering the remuneration packages of the Commissioners, one could legitimately ask whether they are functioning on a full-time basis.
In the said article, we expressed the hope that in the next round of appointments due to be made next year, the PAC will get its act together and follow the established practices in selecting candidates for consideration by the Assembly. The Assembly also has a role to play in ensuring that best candidates are selected, free of political considerations, and in keeping with the spirit of the constitutional amendment of 2001. At the moment, none of the commissioners met the qualification requirements set out in Article 212X (1) of the Constitution, and only one Commissioner has procurement experience, having served as the Chairperson of the NPTAB prior to 2020.
The Constitution lists 12 additional functions of the Commission, including:
a) Promoting awareness of the rules, procedures and special requirements of the procurement process among suppliers, constructors, and public bodies.
b) Monitoring the performance of procurement bodies with respect to adherence to regulations and efficiency in procuring goods and services and execution of works.
c) Approving procedures for public procurement, disseminating rules and procedures for public procurement and recommending modifications thereto to the public procurement entities.
d) Monitoring and reviewing all legislation, policies, and measures for compliance with the objects and matters under its purview and reporting the need for any legislation to the Assembly.
e) Monitoring and reviewing the procurement procedures of the ministerial, regional, and national procurement entities as well as those of project execution units.
f) Investigating complaints from suppliers, contractors and public entities and proposing remedial action.
g) Investigating cases of irregularity and mismanagement and proposing remedial action.
h) Initiate investigations to facilitate the effective functioning of public procurement system.
The latest report of the Commission dated 2 July 2024 was presented to the Speaker of the Assembly on 20 December 2023 and covers the period 8 July 2022 – 7 July 2023. In its introduction, the report stated that: (i) the PPC was first constituted on 28 October 2016 for a period of three years, pursuant to Article 212Y of the Constitution; (ii) the tenures of the then Chairperson and Deputy Chairperson were extended for a period of one year with effect from 25 October 2019; (iii) no other commissioners were appointed leaving the Commission not fully constituted and or quorate; (iv) the Commission was next fully constituted with effect from 8 July 2022.
Two points of clarification. The first is that Article 212Y of the Constitution provides for members of the Commission to be appointed for three years, and for two of the first Commissioners to serve for four years. Therefore, it does not appear to the case of an extension of appointments of the two Commissioners. The other three Commissioners could not have been appointed because there was no functioning Parliament at the time. One recalls the dissolution of Parliament on 30 December 2019 following the passing of the vote of no confidence in the Government on 21 December 2018 and the lengthy judicial review to establish the validity of the vote. The new Government assumed office in August 2020, and it took almost two years for the current Commission to be constituted.
Second, the report stated that of the 1,558 contracts approved by the NPTAB, the Commission received complaints from only ten contractors/suppliers, representing less than one percent of the contracts awarded. However, it is public knowledge that many contractors/suppliers are extremely reluctant to file complaints for fear of being discriminated against in relation to future awards. That apart, only four complaints were completed at the time of reporting while the rest were on-going.
Contrary to the Government’s explanation that the Commission can only act based on complaints received, an examination of the functions listed above suggests that the PPC has a more proactive role to play, especially in investigating cases of irregularities and mismanagement in the procurement process. Since government entities are invariably at the receiving end of the work of the Commission, an independent constitutional body free of direction or control by any person or authority, the Government would do well to refrain from commenting on its work, or to defend it.
There are many reports in the media about irregularities and mismanagement in the award and execution of government contracts. The PPC must of necessity not turn a blind eye to such reports. It must also initiate its own investigations based on these and other reports, if its work is seen to be credible in the eyes of the public. The Commission must never lose sight of the fact that its core responsibility is to protect the public interest by ensuring that all public procurements are conducted with due regard to fairness, equity, transparency, competitiveness, cost-effectiveness, and the achievement of best value for money in the use of public resources.
To be continued –