Procurement (Amendment) bill 2013 – Bill no. 17/20133106 19 Dec, 2013
PROCUREMENT (AMENDMENT) BILL 2013 – BILL NO. 17/2013 – Dec 19, 2013
Mr. Greenidge: Thank you very much Mr. Speaker and Colleagues. I must say that I feel privileged to find that my name has featured in this presentation so many times, when the Minister of Finance was making his submission to this House. It takes us to the heart of the issue before us that instead of dealing with the challenges with confront this country; the difficulties which our policies are supposed to solve, we get carried away with broad sides against personalities, even when they are completely irrelevant to the issue. [Interruption]
Mr. Speaker: Okay Dr. Singh, allow Mr. Greenidge to speak.
Mr. Greenidge: Thank you, Mr. Speaker. The only argument that I heard the distinguish and Hon. Minister make with which I can find some sympathy, is the one that suggest that there is outside and perhaps amongst Members here, a mistaken perception about the role of the Public Procurement Commission itself. But it does not really matter because the Government has never shown any intention of establishing, according to the Constitution, the Public Procurement Commission.
Of course, the Commission is not going to be a guarantee against the manipulation that we currently see in the award of tenders at the level of evaluation and the award of bids. It cannot solve that problem. It is a review body and he is right. The Constitution itself is very clear, it gives it an oversight body to monitor and review the functioning of all public procurement systems to ensure that they are in accordance with the law and such policy guidelines as maybe determined by the National Assembly; not by the Cabinet by the National Assembly. That is the difference. Article 213 A (a)(i).
Mr. Speaker, we are being regaled here by People’s Progressive Party (PPP) members concerning the manner by which a consensus – unanimity - was arrived at by this House. We are being regaled about – I was not here, the person who was here that matters is the Speaker – the former Speaker, Mr. Ramkarran. Just for the information of our Colleagues, let me just remind Colleagues that when a Member of this House purported to interpret the process by which that unanimity was arrived at, the Speaker, in very unambiguous language, accused the Member of being economical with the truth, indeed, fabricating the background. The story told by the Minister of Finance here a few minutes ago was no less fanciful. It was another “Nancy Story”. [Interruption]
Mr. Speaker: Okay, let us move on. Our Standing Orders say that we must not impute an improper motive on any Member.
Mr. Greenidge: Mr. Speaker it is not a motive, I am merely citing the words of your predecessor as regard to the accuracy.
Mr. Speaker: I know, but they pertain to a comment made Member, but you have now transcribed and brought them into the House. That is the difference.
Mr. Greenidge: Mr. Speaker, I hear you and I am moving on. The point I want to make is that the explanation given as regarding the supposed contradiction between sub-clauses of the Procurement Act No. 8, that is what I am saying is a “Nancy Story” also.
We cannot accept that an entire House would have voted for amendments. A House including senior Cabinet Members, some on the Government side and that a few Members can now come and tell us that that was an error/oversight or that this Minister, who was not there, does not know by what process these clauses were inserted into the Statute. He does not have to know. The fact is, it is there and it was agreed to by this House. That is what matters.
The situation today is this, as regards the issues that we have to agree on. The Government is claiming that it must, in order to be held accountable for decisions regarding the award of contracts, be involved in the decision making. Who can disagree with that? After all, right now, no one will deny the involvement of the Government in the award of contracts and that is the problem- that is the very problem. When the Minister is so kind as to cite the donors with whom the Government or whose practice’s the Government can so warmly and fully embrace, I would want also to be assured that they will embrace the criticisms of those donors about their very procurement process.
Mr. Speaker, the question of the structure – the background – to which the Minister makes reference, is trying to suggest that the involvement of the Cabinet in the specifics so as to be able to give a no objection clause is so critical to the process.
Let me just say something else. The Procurement process in Guyana is supposed to work like this – there is a body termed the National Tender and Procurement Administration (NTPA). That body has operational responsibility for review submissions and awarding contracts. That is what is in place.
The awarding of the contracts by this body has been subject to all kinds of criticism, turning upon corruption, racial discrimination, political discrimination and all forms of corruption - that body and its processes. It is subjected, at the moment, to no oversight because the Government refuses to appoint the Commission. There is good reason why they refused, but let me say that body...
Mr. Speaker: One second please. The Hon. Minister, Mr. Ali.
Minister of Housing and Water [Mr. Ali]: Mr. Speaker, the Hon. Member has pointed to a very serious issue in which he accused the Government of racial discrimination.
Mr. Speaker: No.
Mr. Ali: I wish for him to point any document or evidence... [Interruption]
Mr. Speaker: One second please, Mr. Greenidge.
Mr. Ali: ... in his possession to verify this statement that he is making.
Mr. Speaker: Hon. Member, I listened to Mr. Greenidge quite carefully; he said there are criticisms and he listed the criticisms. He never said that this is... he said that these are the criticisms that... and those are the criticisms. “We live in this society and we cannot ignore the fact that these are the criticisms”, that is what he said – “The criticism are” and he went on to list, he did not say that the Government is racist.
Mr. Ali: Okay, we will be listing the criticisms...
Mr. Speaker: Yes, he was listing the criticisms.
Mr. Greenidge: Thank you very much Mr. Speaker for paying such close attention to my presentation.
The point I am making is the level at which the procurement system currently works is not subject to oversight or review by any particular body, simply because the Government has failed to establish and put in place either the Ombudsman or the Public Procurement Commission.
The body itself that is working – the body that is operational - has fifteen members. The fifteen members of this body are outlined in the Procurement Act No. 8, to which the Minister made reference of 2003. I ask Members to be patient to just let me cite from where the fifteen members are drawn and who appoints them.
The members of the National Board are to be appointed by the Minister. This is the Minister who establishes the agency. The body shall comprise; Part 3, section 6, sub-section 3 and it points to not more than five persons from the Public Service; not more than three persons from the Private Sector and so forth. “Two members of the National Board shall serve on a fulltime and the remainder shall serve on a part time basis. The Minister shall appoint the chairman and one of the members.”
The point of import in this is that we have a body completely and entirely appointed by the Minister. It is appointed by the Minister – all fifteen members are appointed by the Minister just for your information. Notwithstanding that, the Government seeks, having appointed all fifteen members, to a power - if one likes - to override, review or negate the decisions of that body. Notwithstanding the fact that, no other body reviews the work of that at National Tender and Procurement Administration Board (NTPA).
We are into an arrangement, a request, for the Cabinet to be given the powers, not merely to appoint the operatives, all of whom are not subject to any... The Minister does not have to have the agreement of anyone in appointing these members. He is not constrained by anything in this legislation. He can appoint those persons; has in fact appointed them and the results, as we have seen, have been a plethora of complaints about the practices and misdemeanours of the Board; the outcomes and results of the Board and its activities.
The point is this, if there is the NTPB and the NTPB has autonomy to do as it sees fit and the all the members are appointed by the Minister, why are we being led to believe that somehow a body that is so fully under the control of the Government would not be behaving in a manner that is consistent with the wishes of the Government? [Mr. Nandlall: Because they are governed by the laws and rules] They are not governed by any rules – that is the problem.
What we are seeking the whole idea of the Procurement Commission, is for the Commission to put in place a rule-based regime. That is the purpose of the Commission, not the arbitrary things that go on today that lead to the discrimination that I made reference to that is public knowledge. If you do not know that, Attorney General, then we have a problem. I want to tell you something; the failure of this body to respect rule-based approaches towards decision making as regards the awarding of contracts is what has led us to such a poor ranking in the index used not only by Transparency International, but by all the national bodies of repute, including some of those named by the Minister, a few minutes ago. That is the essence of the problem. You are seeking to have oversight and further control over a process that you already have 100 percent control over leaving no room for transparency or anything else.
One of the reasons why one has to refuse absolutely to entertain the Government’s request for this role to be now enshrined – I do not know about ‘restored’ – has to do with the fact that the Government, itself, says one thing in public and does something different in private. Before the current President was elected, he was prepared to say that this process was subject to some corruption, that it needed attention and that he would be willing to look at it.
Mr. Speaker: The Standing Orders say that the President’s name shall not be invoked in aid of any debate. It is noted but move on.
Mr. Greenidge: I am not criticising the President.
Mr. Speaker: No. It says that it shall not be invoked in aid of any debate; in other words for or against.
Mr. Greenidge: I will do that, Mr. Speaker.
Mr. Speaker: I am not asking you to remove it. I am just saying...
Mr. Greenidge: Just for balance I was going to explain to you that, having been elected, the President then went on to say that he was going to call upon the different authorities...
Mr. Speaker: I can tell you that my predecessor never allowed any comment about any President so I am saying that it is noted...
Mr. Greenidge: Mr. Speaker, I withdraw.
Mr. Speaker: No. I am not asking you to withdraw it. I am just saying that we note that the President has made pronouncements, but I am asking you not to go into depth in them that is all. I am not asking you to withdraw them.
Mr. Greenidge: Thank you very much, Mr. Speaker. Instead of the President, I would like to cite Minister Benn. A number of newspapers reported on 13th September what seemed to be a Minister who had reached the end of his tether as regards the awarding of contracts and the difficulties he was facing as a Minister under the current arrangements. I really am interested to know whether, for those who have been arguing, there have been no problems, that it is a fabrication to say that there is either discrimination or favouritism or what have you; I would invite them to look at the language of the Minister, himself, when he was faced with the problems of a stelling built at Supernamm for $60 million. It was supposed to have been fixed and shortly after that – I believe even as the Minister was speaking – it was discovered that the stelling, once again, was subject to collapse. In response to these events, serendipitous though they may be, the Minister reacted with a long tale of complaints of certain contractors enjoying unfair access to contracts. He also made reference, subsequently, to the problem of one of those very contractors who is responsible for delivering stone to public projects; making reference to the fact that the supply of stone by this contractor was being manipulated. The public was being exploited because the contractor...
Mr. Speaker: I do not know, Mr. Greenidge, do you have the specific... I remember the exchange. The contractor is not present so the statement about manipulating prices and so forth... Again, let us be cautious about naming a contractor...
Mr. Greenidge: I have not named the contractor.
Mr. Speaker: Sorry. It is not difficult to surmise who the contractor is that you are referring to, so the reference to the manipulation of prices... If it is that you are quoting, please quote and give the reference.
Mr. Greenidge: Mr. Speaker, several newspapers carried this and the one that I would like to draw to your attention right now is the Kaieteur News Editorial 13th September which has the Minister’s words in quotations.
Mr. Speaker: I would prefer that we have those rather than what comes over as your opinion.
Mr. Greenidge: At the same time the Canadians had an incident in which one of the contractors that worked for us...
Mr. Speaker: Mr. Greenidge, I thought that there would be a quote referring to the manipulating of prices by a particular contractor if it is not quoted I am going to have it removed from the record.
Mr. Greenidge: Are you suggesting that the Minister did not say that, Mr. Speaker?
Mr. Speaker: No. I am asking you to...
Mr. Greenidge: I am not prepared to quote the words. I am saying to you that Kaieteur News reported the Minister as saying these things.
Mr. Speaker: With respect, that is not the standard that we would expect. To just say that Stabroek News said that the Minister said on the 14th December, without a quotation, I do not think that I can allow that. I am asking that the reference to a contractor manipulating the prices be removed from the record because I have heard no quote or any direct quote to that effect. It is removed from the record. Thank you.
Mr. Benn: Mr. Speaker, I would also ask that the references that he made to me in respect to the quote, since he did not submit the quote...
Mr. Speaker: To just say that a newspaper said on this date is insufficient so references to the Minister and the contractor and the connotation of manipulation of prices, i.e. illegality, are removed from the record.
Mr. Greenidge: Mr. Speaker, I would like to know, since we are facilitating the Minister, whether the Minister is denying that he made any reference to this difficulty, it is a difficulty that the Minister, himself, raised.
Mr. Speaker: Mr. Benn, I have not invited you to speak. The question is fair, however, in debate, as counsel will tell you to your left... [Lt. Col. (Ret’d) Harmon: He opened the door.] No, the door has not... That is another argument. A Member is free to use whatever aids he or she wishes to use in the advancement of their argument. However, when a reference is going to be made to a Member making statements and especially if those statements cast a dark shadow over both the Member’s head and any other person, particularly if that person is not present in the House to defend himself, herself or their entity, there has to be a direct quote or a reference; if not, it is not allowed. Mr. Benn, you are not recognised to speak on this matter. It has been dealt with. If you wish, you may ask the Whip to have your name put on the list of speakers later on.
Mr. Greenidge: Mr. Speaker, I trust that when the specific quotation is found, we will be having it restored because I am not suggesting that the Minister, out of the blue, said something detrimental to himself; I am speaking of the Minister’s own concerns about the system. It is his system and it is astonishing to me that he could seek to deny that he ever said it.
Mr. Speaker: One second, Mr. Benn. Mr. Greenidge, the Minister has neither denied anything or not. I know that there were some letters. There was an exchange. Let us be careful about that. The Minister has not gotten up to deny. There were some concerns expressed. All I am saying is that what is coming out now requires us, if we are to go further, to have some specificity attached to it. If not, we cannot go further.
Mr. Greenidge: I will come back to you if I may.
Mr. Speaker: Please do.
Mr. Greenidge: As far as the point that I am trying to make is concerned, is this: The Government is in control of the system in its entirety as regards the work of the National Tender and Procurement Board. The Minister is part of a Cabinet and the Cabinet is the Executive and the Executive is part of the Government. As far as we are concerned the issue of procurement pervades every single element of the difficulties that we face on an economic front today. If it is not the question of brides or roads or stone scams, then it is helicopters, the East Bank Highway and a whole range of things, airports and others, in which contracts are awarded and the value of the contracts, the basis of which the contracts have been arrived at remain questionable, non-transparent and in almost all cases cost far more than one would have expected and far more than it costs anywhere else. The result of all this is that if one looks at the question of corruption that is why Guyana ranks as the second most corrupt country in the entire Latin American Caribbean Region. As regards the economic freedom, as regards the question of the work of the Government, itself, the United States Department of State which did an examination of the investment climate also refers to corruption as being widespread and reflecting little political will to implement legislation passed on the procurement or in relation to asset declaration. These are not just cases that exist in a vacuum. The World Economic Forum’s Global Competitiveness Report ranks Guyana as 115 out of 134 in terms of corruption. In other words, it does not have far to go to be the most corrupt in the world.
As regards the question of the relevance of corruption to procurement let me just say that the World Bank Report, which is jointly done with Transparency International, argues that “whilst the budget process is open to legislative review Government contracts and the management of foreign aid lack transparency and efficiency.” As regards Freedom House’s Report it says, “in terms of financial management, Guyana’s National Audit Reports...” It even cites the report of the Auditor General in relation to procurement. It cites the millions of dollars paid for medical supplies that hospitals could not account for. That is from the report of the World Bank and the TI. It includes several millions paid for medical supplies and hospitals that they could not account for. It also points to evidence of petty and grand forms of corruption in the management of public resources. It relates to the question because I am saying that procurement is affected and it lies at the heart of corruption and why we are ranked so poorly as country.
As regards this matter, the point is that we are in a situation in which the Government argues that it needs to have a No-objection Clause’ and the powers of no objection in order to stop the procurement process leading to progress but right now when it actually exercises those powers and when the NTPB is entirely appointed by the Government we see no effort at all to review the process in spite of complaints and instead of that the Government focuses upon blocking the establishment of the National Procurement Commission. Therefore that argument that the Minister brings that international obligations, for example, require a no-objection Clause is true. That is true that the IDB and many others require a no-objection Clause, but the experience that we have had is that the Government exercises these powers without reference to anyone or anybody. Normally, when legislation empowers Ministers to carry out a function at the policy level it normally should be done on the basis of advice from established technical offices. In Guyana, in contradistinction to that, Ministers, including many that are here, exercise these functions completely arbitrarily, capriciously, whether it is in relation to Local Government, personalities that are not qualified or any other. That is the problem, Mr. Speaker. [Interruption] I am addressing the Speaker. The problem is that as the legislation currently stand the Government deserves no more involvement and no more power than currently exists because with the power that they have already they already abuse executive office. Therefore there is no merit in this particular contention. If a no-objection Clause is needed by an international agency it is not sufficient to write in those powers for the Cabinet especially in the absence of the establishment of the Public Procurement Commission.
What I am saying is, first of all, the supposed conflict that is supposed to be captured in Clause 54.1 and 54.6, as articulated by the Minister, we reject completely. No such contradiction exists and, as regards the architecture of public procurement, the architecture already gives the Government powers which are perhaps excessive and they should be ashamed to come back to this House to ask for additional powers or the restoration of powers which, when they exercise them, they exercise almost irresponsibly. For that reason there is no merit in the case being made. The proposal before us should be struck down and I urge the House to reject it as being unworthy. Thank you very much. [Applause]
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