Procurement (Amendment) Bill 2013 – Bill no. 17/20133766 19 Dec, 2013
Mr. Nadir: Mr. Speaker, following the last speaker’s exhortion to you to listen carefully, I thought that I would also listen very carefully. Clearly, the last speaker is in a different world. The emphasis he has placed was that this Government has been living in the past, in particular been living in the 2002 Act. He mentioned, and he quoted, and he referred to recommendations made by World Bank and other international financial institutions. He quoted the former President as speaking about improving the procurement process, and in particular this Act that is currently before us and is about to be amended. That is the Act of 2003. Here is where he is right. Since the Government changed in 1992, this PPP/C Government took it as its first responsibility to clean up the corrupt practices of the past. That is what it did. I sat in the Opposition and I supported legislation over and over again to so do.
Yes, we had an engagement very earlier on with the international financial institutions to ensure that Guyana could put procurement policies, procedures and legislation that meet international best practices. That is what we did. In 2002, the first Act was passed and assented to and we went back to that Act in less than one year with the interventions of a number of agencies. Law, as he said, has dynamic changes. It is as the anti-money laundering policies that are currently being forced upon some countries. The Financial Action Task Force (FATF) of the world is saying that from next year those laws will have to change again to include the financing of weapons of mass destruction and so we will have to come back again next year. Yes, this law is dynamic.
There was another process, and I speak for the very top of my head on it because I was very involved. In that process we had again people with the best international experiences coming to assist us. While we had the 2003 amendment basically repealing the 2002 Act and enacting this current Act, there were accompanying comprehensive regulations that were tabled in 2004. In that regard, he is very right. It has been the goal, the first mission, of this PPP/C Government to ensure that we can have transparent, accountable procurement procedures in our country. [Ms. Ally: In what year you became a grasshopper?] I will tell you, Mr. Speaker, the only similarity between grasshopper and me is the colour of my tie.
The last speaker mentioned that as we transition from section 63, subsection (1) of 2002 to section 54 of 2003 that the issue of “no objection” was lost and that we have been living in the past granting no objection. Maybe, it is the wording. A “no objection” is not the same thing as the Cabinet may object to the award of the procurement contract. I see it as the same thing. It might not be letter for letter and word for word but the intent here is that Cabinet has the powers to object to an award, not a proposed award, of the National Procurement and Tender Administration Board. What section 54 (1) states? It states that Cabinet shall have the right to review all the procurements which Cabinet exercises. When the Head of the Presidential Secretariat (HPS) on Friday said that the Cabinet has… [An Hon. Member: Approved.] He never said the word “approved”… granted its no objection - maybe he should have said of the 15 or 20 contracts above $15 million - it did not have an objection to any. Well, I do not know how different it is to a no objection but the powers are clearly outlined in section 54 (1) and (2) of the Cabinet.
This process is decentralised at the level of the ministries, at the level of the regions, at the level of a district tender board and at the level of the Ministry of Finance tender board. It is only contracts that exceed $15 million will come to the Cabinet for no objection. Clearly, we have many persons in this National Assembly who still have not done their homework. When we debated this Bill in 2003, I had to mention, again, that people were seeing a different Bill than what was before us. Clearly people around us do not want to understand the different levels of checks and balances that are in the system today. In the system, today, we heard much being made of the appointment by the Hon. Minister of Finances of the 15 members of the National Procurement and Tender Administration Board.
The system has many different arms. The Public Procurement Commission is a different arm from the tender board, the 15 members which the Hon. Minister of Finance has to appoint. The laws clearly set out how he must go about appointing these members. From the presentations of the Opposition Members tonight one would expect that all 15 of those members are puppets of the Minister of Finance. It is that those honourable men and women, who have their integrity, their honesty to protect, as we heard from the Opposition, are all puppets of the Minister. The issue also was with the ultimate power, which is vested in the Minister, in terms of the appointment of the board, and the executive functions of Government which resides in the Ministry of Finance, where the procurement is concern. The Opposition said, and the Hon. Member Carl Greenidge mentioned this, that further there could be manipulations. I remembered when we debated this, and I have the Hansard here, the Hon. Member Mr. Khemraj Ramjattan, referring to him, when he said that… Sorry.
When the Hon. Member Mr. Ramjattan spoke on the Bill of 2003, he made mention of the fact of whom the authority should be vested in, but the minister. It is there on page 14/104 of the...
In Guyana, we do not have the American system where the executive is totally isolated from the legislature. We do not have that! What we have is still lots of remnants of the Westminster system, which draws the executive from the national assembly and, ultimately, ministers are accountable and responsible. What we have tried over the many years, especially in the last decade, was to ensure that there were enough checks and balances in place where subjectivity could creep in to ensure that there are enough checks and balances in place to ensure accountability and transparency.
The Public Procurement Commission (PPC) will have a totally separate function than that of the executive. Its members will set policies and it will sit with the executive and review limits and so forth. There are enough checks and balances.
I want to commend the Hon. Minister of Finance because that night when we were looking to get political consensus... The issue of public procurement should not be one of a tug-o-war among Members of Parliament (MPs). It should be done that has consensus, political consensus in particular. I know that that evening we all were looking to see a way forward.
From my information, the then Minister of Finance had a very keen eye. You yourself said that he would have done very well as an attorney at law. The current Minister of Finance and the current Cabinet sees the collision that while the Procurement Act looks at doing away eventually with any involvement of the Cabinet, Section 54 (6) talks about the moment the Public Procurement Commission is appointed, the role of Cabinet is terminated. Clearly, that could not have been the intention because we are still in the process of putting all of the protocols in place to ensure that we can have this public procurement provision so implemented that it will stand whatever scrutiny. That is where we stand, Mr. Speaker, because we have to look and see where there has been incidence of interference by the Executive in the award of these contracts which have to get the so-called no objection from the Cabinet.
I remember being at a regional conference about two or three weeks ago and an international delegate asked about the same issue. Since Cabinet has this no objection role, how many times has the Cabinet objected to the award? At that time, I said that it was less than five.
In preparing for this, I looked at the period 2009 to 2013, and what I have before me is what the National Procurement and Tender Administration Board (NPTAB) has reported to the Inter-American Convention Against Corruption as the number of times Cabinet withheld an award. In 2009, it was twice – 0.7%; in 2010, no contracts were withheld; in 2011, 368 contracts were awarded and 0 were withheld; in 2012, 411 contracts and 0 were withheld; in 2013, 380 contracts were awarded and five awards were withheld – 1.3%. If one sums it up, over the five years, Cabinet withheld 13 contracts.
Clearly, this is systematic that the current system is working and working very, very well, but we could still make it better. [Mr. Greenidge: You are talking nonsense.] I thought, Mr. Speaker, that words such as “nonsense” were unparliamentary, but there is a new dispensation today.
Mr. Speaker: I am hearing terms going left to right and right to left during the heckling. They are not part of the record but I am hearing terms. I agree that Members ought to show a level of respect.
Mr. Nadir: Thank you very much, Sir. It is the hallowed Chamber we are in and it deserves the respect. If this particular speaker on the floor does not deserve the respect, at least the walls of this Chamber do.
We have before us over 1,300 contracts in five years that went to the Cabinet and seven of them had the Cabinet’s objection. As I said, we can make the system even better. None of us are going to work to make it worse.
I mentioned the issue that night in 2003 when we were speaking about the passage of the new amendments to the Act. Subsequently, the late Hon. Member, Mrs. Sheila Holder, had put forward a question to the Hon. Prime Minister – I think it was in 2010. In response, in 2010, to the question about when the Government is going to put the Public Procurement Commission in place, the Hon. Prime Minister again stayed very firm to the commitment that the Government wants to see political consensus on the issue of the Public Procurement Commission.
We have worked to be faithful to the Constitution. Enshrined in the Constitution is the issue of the Public Procurement Commission having a two-thirds majority for passage. This issue of political consensus is not a figment of the Government’s imagination. It is the Government being faithful to the supreme law of the land – the Constitution. It is building political consensus on the issue of public procurement. No matter how much we blow hot and blow cold, as the Hon. Minister Mr. Irfaan Ali said, we cannot have one-sided arguments on the issue of public procurement.
Persons can tie whatever they want to it. They can tie the Harbour Bridge; they can tie the Berbice River Bridge. They can tie anything to it but we must have political consensus.
The Members opposite me do not have a monopoly on knowledge. With their one-seat majority, they operate as if their way must be the only way. Checks and balances, as I mentioned in the issue of public procurement, have been provided for in our Constitution. When people stand up and talk about Parliament...the National Assembly passing something and the President not signing it does not constitute the Parliament. Consensus.
If there is one thing about the current dispensation of the political electorate, it is that all of us in here should work for the betterment of all, but in consensus, and, as the Prime Minister mentioned in 2010, it should be political consensus.
We have a simple amendment that corrects a contradiction and a collision in one clause. What the Minister of Finance is asking us to do today is to remove subsection (6) and let us continue to work towards removing Cabinet from the process altogether. That process will include us working together to ensure that there is the establishment of the Public Procurement Commission. I know this matter has been put on the table in the relevant committee and I do not want to breach any protocol but I am sure, Mr. Speaker, you will see the reports coming out that will show the same consensus that we are trying to seek here is nearing the goal there.
Whether we put the Public Procurement Commission in place now or not, we will still have the problem of this collision.
Mr. Speaker: What about the argument that subsection (6) is just superfluous – that is Mr. Sharma’s argument – and that in or out, hot or cold, it does not interfere with Government’s recognised authority?
Mr. Nadir: Mr. Speaker, I can see immediately that when the Public Procurement Commission is set up, somebody will go to the court and say that Cabinet’s involvement must cease immediately because of Section 54 (6). I can see that and I do not claim to have any clairvoyance powers. Mr. Speaker, there is that issue.
We still have to go a little way on the learning curve and that learning curve is to ensure that we can separate some of these issues that have become contentious.
Minister Ali said it correctly: Cabinet has fiduciary responsibility. Someone else said it. If the Government has to act and if the Government has to govern, it must also have some amount of authority. The People’s Progressive Party/Civic (PPP/C) is committed to the removal, eventually, of the role of the Cabinet in the procurement process. Right now the Cabinet cannot propose. If the National Procurement & Tender Administration Board does not send an award to Cabinet, Cabinet cannot initiate a thing. It is almost similar to how we select a person to be the chairman of the Elections Commission. If the Opposition does not send up a list of names that is acceptable to the President, there can be no chairperson. The initiating of the contract awards starts and ends with the Tender Board.
I agree with the Hon. Minister of Finance that Section 54 (6) does offer a lot of collision. I also subscribe to the view that we cannot immediately remove totally the role of the Cabinet. The Public Procurement Commission will also need some time to get going in order to perform its role of reviewing and looking at policies. The NPTAB looks at a pool of evaluators. There are so many checks and balances in the system today that if the manipulative arm of anyone comes into play, you will see it all over the press. Added to that, today we have a very vocal press, be it electronic or print.
What we ask today is that we remove the contradiction and we allow the process to continue so that we can get on with ensuring that in Guyana, the Procurement Act can withstand any scrutiny, any test and any international best practice.
Thank you very much. [Applause]
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