Procurement (Amendment) bill 2013 – Bill no. 17/20133271 19 Dec, 2013
Mr. Nandlall: Thank you very much, Sir. A lot has been said in this debate on the question of our procurement process and our procurement procedures. A volume of misinformation has been disseminated in this debate and I specifically would like to refer to the misinformation that came from the Hon. Members, Mr. Carl Greenidge and Mr. Khemraj Ramjattan.
Sir, I want to begin by saying that the public procurement process, both in terms of legislation and administrative procedure, in Guyana, stands as one of the most transparent, accountable and fair, with the least executive government involvement in the entire English speaking Caribbean.
When one listens to the Hon. Member, Mr. Carl Greenidge, one believes we have a system here where the Minister picks up the phone and directs a contract to be awarded to Mary Jane. That is the distinct impression we get. [Mr. Greenidge: That is how it works.] I am told that that is how it works. That is the level of misinformation.
The entire system of public procurement that employs several dozens Guyanese public servants have been rendered non-existent and have been insulted by the Members of this Parliament. They do not exist. They are puppets taking corrupt instructions from the Government of the day. That is what the Members of Parliament are saying.
We have, Your Honour, a Procurement Act that spans some 46 pages. It establishes an entire system of procurement, starting from the 65 Neighbourhood Democratic Councils (NDCs) level right up to Central Government. Each tier of the system is manned by public servants and persons involved in the area of activity. These persons are appointed by a board, not a Minister. They are situated right across the length and breadth of this country. That entire superstructure which administers procurement in this country has been reduced to a corrupt outfit of the Executive Government by the Hon. Member, Mr. Carl Greenidge. That is what they are speaking about in this National Assembly. Mr. DeClu and all the other people who work at the central Tender Board are all corrupt officers of Dr. Ashni Singh.
This legislation - and it is obvious that it has not been read - when compared to other legislations of the Caribbean stands out as one of the most elaborate structures for public procurement. It speaks of the public tendering of bids, the public opening of those bids, where the press is invited and there is public award of contracts. All of that has been ignored and all we keep hearing is that it is some poppy show going on with procurement in Guyana. It is really sad when the National Assembly can indict so many public servants in the manner that this National Assembly has done today.
I repeat that the legislation has not been read by those who have spoken about it. When one goes through a part from the elaborate legislation itself, there are regulations attached which regulate the rules by which tenders are done, by which they are received and by which they are assessed. There is a process built in the legislation that allows for a protest to be lodged if there is a person aggrieved by the bidding procedure. One does not hear anything about that. In addition to that, the National Procurement and Tender Administration Board has prepared manuals which are available to the public and available on the website. [An Hon. Member: That is irrelevant.] It is irrelevant because you do not care to understand the system. You are a relic of the past. This is a procurement manual prepared by the National Tender Board.
Mr. Greenidge: Mr. Speaker, apart from not knowing about relics of the future, I wish to draw your attention to the fact that the Minister is using unparliamentary language.
Mr. Nandlall: I was not speaking about him. I was speaking about the procurement process which we are changing; it is a relic.
Mr. Speaker: Hon. Member, though the word ‘relic’ is not listed in our glossary of unparliamentary terms, the context in which it was used… You said, “you are”. The Hon. Member, Mr. Sharma, today, made references to the party or the Government being in the past, but in this case there was a particular reference to Mr. Greenidge saying “You are a relic of the past”. That, as we know…
Mr. Nandlall: I was not referring to Mr. Greenidge.
Mr. Speaker: Because you were not, I need you to clarify and to withdraw it. It was a direct response to Mr. Greenidge. In fact, you also pointed to him.
Mr. Nandlall: I was not referring to Mr. Greenidge.
Mr. Speaker: But, you did point to him.
Mr. Nandlall: Pardon me.
Mr. Speaker: You did point to Mr. Greenidge when you said so.
Mr. Nandlall: I may have, but I was not referring to him.
Sir, the point I was making…
Mr. Speaker: No, the point I am making is that insofar as you pointed to Mr. Greenidge, as you said so, I am taking it to mean that you meant him and I am asking you to withdraw it.
Mr. Nandlall: Sir, I was looking to see whether Mr. Ramjattan came back.
Mr. Speaker: No.
Mr. Nandlall: Sir, if it is felt that I said that Mr. Greenidge is a relic, I withdraw that.
Mr. Speaker: Proceed Attorney General.
Mr. Nandlall: Sir, the point I am making is that we have, prepared by the National Procurement and Tender Administration Board a preponderance of documents. This one is called the Procurement Manual, prepared since 2006. It explains the Act in a most detailed way. It explains how every aspect of the Act is to function and how the responsibilities which are devolved by the Act upon various officers are to be discharged. So, anyone who is unaware of how procurement is done can consult anyone of these manuals.
There is another one called Standard Evaluation Criteria Handbook for Prequalification and Bidding. This is another document that seeks to deal with the issue of prequalification as it is done under our procurement system. There is another one called Procedure Manual, which explains how tenders are processed under our public procurement system. There is another one called Guide to Public Procurement Procedures. All of these manuals are intended to inform those who care to be informed of how public procurement is done in Guyana. So, the impression that is being conveyed that public procurement is clouded in secrecy is one that is a figment of people’s imagination and one that is a fabrication.
We have accorded the highest treatment of our public procurement procedures by putting it as part of our constitutional structure. That is the first thing that Guyana, as a country, should take compliment for. We have put public procurement in our supreme law. [Mr. B. Williams: Then ignored it.] I will deal with that just now. We have created for the establishment of the Public Procurement Commission that we have heard so much about this evening.
What we have heard from our learned Friend, Hon. Mr. Ramjattan, is a complete misreading of the Constitution. The Constitution, the Public Procurement Commission, Article 212W that creates it, states this:
“There shall be a Public Procurement Commission the purpose of which is to monitor public procurement and the procedure therefor in order to ensure that the procurement of goods, services and execution of works are conducted in a fair, equitable, transparent competitive and cost effective manner…”
It is to monitor. [Mr. Ramjattan: Go to the function.] The function cannot depart from the instrument of creation. That is the first thing. The function will expand from this; it cannot deviate from this. So, Sir, it is a monitoring body. [Dr. Singh: It is an oversight body.] It is an oversight body. That is the first thing that we must understand. It is not part of the procurement process; it is at the apex of it. It is to oversee that which is beneath it. That is what you have to understand.
I am going to go to the functions. Procurement involves from the beginning of the tender to the end of the tender. The Procurement Commission becomes involved at the end of the process, if there is a complaint lodged. Only then its process is activated. Only then is jurisdiction invoked. This is simple English language.
All the functions which have been ascribed to this Commission in the Constitution lend to the argument and to the fact that it is an oversight monitoring body - every one of the function. This Commission cannot...and it also has advisory functions. If I am to go through the function one by one, I will do that because of the amount of misinformation which has been peddled. Article 212 AA(1):
“(a) Monitor and review the functioning of all public procurement systems…”
It is to monitor and review, not to get involved in the functioning. It is not to usurp the functions of the procurement entities, but to monitor and review the functions. That is the first role.
“(b) promote awareness of the rules, procedures and special requirements of the procurement process among suppliers, contractors and public bodies;”
So, there is a public awareness component to its function. That is not getting involved in the procurement process.
“(c) safeguard the national interest in public procurement matters, having due regard to any international obligations;”
That is not putting it in the procurement process.
“(d) monitor the performance of procurement bodes with respect to adherence to regulations and efficiency…”
Again, this is a monitoring function.
“(e) approve of procedures for public procurement, disseminate rules and procedures…”
Again, this is a monitoring oversight function, issuing rules and making procedures for the procurement body to operate under. It is not for them to get involved. I am moving on.
“(f) monitor and review all legislation, policies and measures for compliance with the objects and matters under its purview and report the need for any legislation to the National Assembly;”
Again I say, to monitor, to review and to advise. There is nothing to get involved in the actual procurement activities. I am going on.
“(g) monitor and review the procurement procedures of the ministerial, regional, and national procurement entities as well as those of project execution units;”
Again, it is to monitor and review.
“(h) investigate complaints from suppliers, contractors and public entities and propose remedial action;”
That is what I am saying. [Interruption] I will wait because the English language is quite formidable tonight for us to understand. “Investigate”, but I said it is an oversight body. It is a monitoring body. It has an investigative function. It is to investigate complaints from suppliers, contractors and public entities, and propose remedial actions. To propose remedial action is that if… [Interruption]
Mr. Speaker: Allow the Minister to speak please. Continue Minister.
Mr. Nandlall: Sir, what this section means is that if a complaint is lodged to the Procurement Commission, it has a mandate to investigate. [Mr. B. Williams: Only if a complaint is lodged.] Yes! [Mr. B. Williams: No.] It is to investigate complaints from suppliers. I do not understand. Your Honour, can you read with me? English language seems to be becoming progressively more difficult tonight. It is to investigate cases of irregularities, complaints from suppliers, contractors and public entities, and to propose remedial actions.
Somebody has to activate the process by a complaint. An investigation is then launched. A finding is then made that a wrong may or may not have been committed. When that finding is made, a remedial action is recommended. That remedial action can never be to take the contract from A and give it to B. It can never mean that. [Mr. B. Williams: Why not? What is the matter with you?] It will obviously mean sending it back to the procurement process – obviously! If it has the power to take away a contract from A and give it to B, it means that it is usurping the statutory functions of the Tender Board.
Mr. Speaker: Hon. Attorney General, how do you equate this Commission, for example, with the Public Utilities Commission, which has investigatory powers and also is a creature of statute?
Mr. Nandlall: I do not know the language. I have to look at the language of that. I am saying that when there is a statutory body created and there is an oversight body to oversight the functioning of that statutory body, that oversight body can never usurp the statutory functions of that statutory body. It cannot be. [Mr. B. Williams: Read (j) now.]
“(j) initiate investigations to facilitate the effective functioning of public procurement systems;”
Again, on their own, they can move into areas to improve the system. I am not disputing that. It can enlist the aids of persons et cetera to do so. It goes on in that same vein. So, the argument, Sir, that this is a body that can usurp the functions of the Tender Board is completely wrong. I will draw an analogy since somebody is shouting across the aisle about the Court.
Mr. Speaker: Okay, one second. Mr. Ramjattan, I think when you spoke there was rapt attention paid. Allow the Minister to speak please.
Mr. Nandlall: Sir, I have in my hand a judgement of the Chief Justice. This case was filed on the 13th September, 2013 by BK International Inc. There is a written judgement already handed down on the 5th December 2013. It challenges the procurement process conducted by the Guyana Geology and Mines Commission (GGMC) in respect of a road somewhere in Region 7. I pause here to say that those who feel that there is no remedy available against the procurement system, I have in my hand evidence to show that in two months the High Court delivered a judgement and quashed an award done by the GGMC.
The point I want to make is that the Chief Justice in this case did not take the contract from the awardee and give it to the applicant. The Chief Justice found here that the process used by the GGMC was wrong and he quashed the decision.
Mr. Speaker: Did the applicant pray to have the contract passed to him or it?
Mr. Nandlall: Yes one of the orders, prerogative writ, was compelling them…
Mr. Speaker: …to be quashed from (a) and given to (b)?
Mr. Nandlall: Yes, and the Chief Justice said that he does not have that. He sent it back to be done. That is what the Constitution contemplates. The Constitution will never give an oversight body the function to perform the functions assigned by a statute. That is heresy. Remedial action can never be usurping the functions of the statutory body. [Interruption] Sir, I will have to accept that we read and understand the English language differently. I will have to accept that and move on.
Reference has been made to the Caribbean, where Guyana’s system has been compared with several jurisdictions in the Caribbean. In 2012, there was a procurement conference held at the Hyatt Regency Hotel in Trinidad and Tobago. It was organised by the Caribbean Procurement Institute. At this forum, there was a review of all procurement systems in the English speaking Caribbean. In fact, it was CARICOM countries. The countries examined were Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Trinidad and Tobago, St. Vincent and the Grenadines, St. Lucia - the entire Caribbean,.
This is what they said about Guyana: Guyana is one of three CARICOM member States which undertook significant public sector procurement reform. Jamaica and Belize are the other two member states. Sir, as I said, we stand out. It speaks about the Public Procurement Commission. It states this:
“In 2000, the Guyana Constitution was amended to provide for a public sector procurement regime for the first time and to provide for the creation of a Public Procurement Commission as an oversight body. The Constitution empowers the commission to monitor and review all public procurement systems to ensure that they are in accordance with the law.”
It is not to perform the functions of procurement; it is to monitor and review. It continues to explain all the things that we have done.
Sir, Section 54, as we heard was inserting on the floor, the reasons, et cetera...I would not want to revisit it. All that this amendment seeks to do is to delete Section 54(6). Section 54(6) states that Cabinet’s involvement under this section shall cease upon the constitution of the Public Procurement Commission, except in relation to those matters referred to in subsection one, which are pending. If this is taken out…
The impression that I got from Mr. Ramjattan is that this amendment somehow does two things: one, it increases the role of Government in the procurement process or it increases the role of Cabinet in the procurement process. That is the first point he has made about ten times. That is wrong. Nowhere in this does that.
The second point he made is that somehow or the other Cabinet remaining in the process somehow diminishes the role and functions of the Public Procurement Commission. Again, this is another fallacy. The Public Procurement Commission remains intact. It has nothing to do with this amendment. Cabinet’s role, if the amendment is passed and continues, and Cabinet role continues in the no-objection phase, will also be monitored and reviewed by the Public Procurement Commission. Cabinet would be, in a limited way, part of the procurement process and procedure that the Public Procurement Commission would oversight and monitor. All the recommendations which emanate from that Commission and all the investigations which are conducted by that Commission will involve the investigation of Cabinet. I do not understand what the big thing is if Cabinet’s no-objection role is included.
Sir, let me say that the Government’s position is that if Cabinet’s role is excluded, then we will not have a Public Procurement Commission in the near future. The constitutional requirements are that there must be a two-third for the composition of the Commission. So, if we are speaking of compromise politics and we want to build national consensus, this is the most innocuous role that Cabinet has in the procurement process in the entire English speaking Caribbean, which exists in Guyana.
My Friend, Dr. Singh, spoke of the position in Jamaica, where Cabinet awards the contract. It not only awards the contract. The award comes as a result of a recommendation from a Cabinet sub-committee. So, it is not Cabinet awarding alone. The recommendation upon which Cabinet acts emanates out of a Cabinet sub-committee. So, executive involvement is deep and entrenched in Jamaica. The recommendation comes from a sub-committee. [Mr. B. Williams: Sir, I do not understand what [Inaudible] It is not my fault that you do not understand it. I am telling you what the procedure is. [Mr. B. Williams: A cabinet sub-committee is part of the Cabinet.] Sir, as I said, English language is becoming extraordinarily difficult.
I am reading, Sir, from the Handbook of Public Sector Procurement Procedures. This is what it states at 2.22:
“The infrastructure sub-committee of Cabinet is a sub-committee of Cabinet established to recommend contracts for the approval of Cabinet.”
That is Jamaica. So deep and embedded is the procedure in Jamaica. I want to go to Barbados. Barbados is another country where… Your Honour, you made reference to a case when you were speaking to Mr. Ramjattan…
The case is C.O. Williams Construction Limited Vs. Donald George Blackman, Minister of Transport and Work and the Attorney General of Barbados. This is a case that went to the Privy Council. Cabinet had awarded the contract of a highway in Barbados. In this case, a particular contractor felt aggrieved by Cabinet’s award and went by way of certiorari for a judicial review of Cabinet’s decision. The first issue that arose was whether Cabinet’s decision can be reviewed. The Privy Council held that where Cabinet is performing its Executive function and because of secrecy etcetera that decision is not reviewable by the courts. But whenever Cabinet embarks upon the performance of functions like the awarding of contracts, which involves millions of dollars, their decision is reviewable, and the decision was reviewed. However, what is important is the Privy Council’s examination of the Bajan system. This is what is says...
Mr. Speaker: Before you venture there you would need an extension. I would not want to interrupt you while you are quoting.
Mr. Hinds: Mr. Speaker, I move that the Hon. Attorney General be granted fifteen minutes to continue his presentation.
Motion put and carried.
Mr. Nandlall: They first established the statutes under which Cabinet is created.
“There shall be a Cabinet for Barbados which shall consist of the Prime Minister and not less than five ministers appointed...”
“The Cabinet shall be the principle instrument of policy and shall be charged with general directions and control of the Government of Barbados and shall collectively be responsible therefore for Parliament.
Unlike any United Kingdom legislation of which their lordships are aware, some legislation in Barbados confers specific statutory functions on Cabinet as such, thus specifically Section 39 of the Financial Administration and Audit Act delegates to Cabinet power to legislate over an extensive field in relation to the control of public finance and it is upon this delegated legislation made in the exercise of this power which in turn assigns specific functions to Cabinet.”
So there is a system where Parliament by a delegated legislation has assigned to Cabinet the power to make rules over a whole set of matters dealing with public expenditure. That is the length and breadth of the Executive power in Barbados.
Part 12 of the 1971 rules is headed Governments Contract. The code is to enact in an elaborate way by which tenders are done. I do not have to read all except one of the rules. Rule 148 provides:
“The committee shall send the tenders and its recommendations thereon to the head of department who shall submit the recommendation to the Minister for acceptance. If the Minister does not accept the recommendation of the committee the matter shall be submitted to Cabinet for final decision.”
That is how tenders are awarded in Barbados. It goes first to the subject Minister and the appellate procedure of the Minister is to the Cabinet. That is the depth of Executive involvement in the Caribbean. I chose Jamaica and I chose Barbados.
Mr. Speaker: That is correct, but I think there is an excellent series, Attorney General, by a Dr. Ghanie in Trinidad in which he started to argue about how we are drifting from the traditional Westminster White Hall model. Certainly the process we embarked on in 1997 to 2001 with our reforms took us further away from that tradition. I still hold the view that the Executive should have the right to implement and have power over moneys. However, certainly, we are not sitting squarely as other jurisdictions are when it comes to the Westminster model.
Mr. Nandlall: I am juxtaposing Guyana to the rest of the Caribbean to show the minimum role that exists now for Cabinet to make my case for that role to continue. That is the point that I am making. If we are going to jeopardise all the glories that this Commission will bring, based upon what we have heard, by rejecting this amendment then all that we have engaged in is a waste of time. That is the point I am making.
My friend Mr. Ramjattan was quoting from the Hansard. I also have a copy of the Hansard, and I have his speech as well. When Mr. Ramjattan spoke here he was speaking about a bill which did not have Section 54(6). That section came at the end of the debate. [Mr. Ramjattan: The amendment was before the Parliament.] No. When one reads Mr. Ramjattan speech this is what he said about the Minister’s appointment. He stood up there and criticised the Minister’s power to appoint members to the tender board. Thursday 19th, 2003 page 14/103:
“I wish to make the point that this Bill is in accordance with the Constitution Reform Committee (the Bill then was in accordance with the Constitution) and the Commission that we set up thereafter and even with the provisions that were placed with the amendment of 2001.”
At that time that Bill did not have the Section 54(6), but at that time it complied with all the constitutional requirements according to Mr. Ramjattan. He goes on:
“We have to bear in mind what indeed the framers of the constitution created and what they wanted in this very important area of procurement. It is not simply that the amendment of 2001 has been desecrated. When we are going to make allegations that too much power is in the hands of the Minister we must create alternatives but where else... I use to, as a little boy, listen to Mr. Forbes Burnham in the National Assembly and he used to ask the question, “Where must that residual power reside if not in the Minister?”
So why are you criticising the Minister now? You stood there and spoke about ten minutes about the Minister’s power to advise the board. You were asking “Where do you want us to reside the power if not in the Minister? That is what you were asking the People’s National Congress (PNC) in 2003.
Mr. Speaker: Address the Chair.
Mr. Nandlall: He says this:
“Where must we reside that residual power if not in the Minister? He used to ask emphatically (still quoting Forbes Burnham) if we should have it over in the Opposition. I am certain Mr. Robert Corbin would know that because to be accountable it means you have to be responsible.”
That is the point that this Minister is making; to be accountable you have to be responsible. He is lecturing Mr. Robert Corbin. He said to Mr. Corbin:
“I am certain Mr. Corbin would know because to be accountable means you have to have the responsibility, and who else in the National Assembly should have the responsible but the Minister.”
And as I said, the amendment was not before them at that time. He was speaking in relation to a bill without the inclusion. He goes on:
“Mr. Speaker, whatever it is the accountability question in the National Assembly must be in the hands of the Minister.”
But more than that, the Bill creates a platform of transparency and accountability, full-stop applause.
The Minister must be accountable.
Recall, I had the occasion to produce a copy of the Hansard to reveal how the neighbour of Mr. Ramjattan voted once in relation to a certain presidential matter. I have to produce Mr. Ramjattan’s speech again to show that he himself said the Minister must have the power to make appointments. The Minister remains responsible because he is accountable to the National Assembly. So when you take out Cabinet’s role how are you going to make the Minister accountable for what he has no role for.
We cannot depart from the doctrine of separation of powers because it is the foundation upon which our Constitution is built. Our Constitution has three major edifices: one the legislature, two the judiciary and three the executive. In terms of distribution of functions the Executive is resided with the functions in respect of public finances. The Executive is responsible for public finances. It is accountable to Parliament and it is accountable to taxpayers of this country, how their moneys are spent. Over 90% of public expenditure is done by way of procurement. When you take Cabinet’s role out of the procurement process you are leaving Cabinet exposed to a responsibility without any role. That is a transgression of the doctrine of separation of powers.
Sir, of one looks at Article 103 of the Constitution. The Executive authority resides with the President; then the established offices of the various Ministers. Then I go straight to Article 106.
“There shall be a Cabinet for Guyana which shall consist of the President, the Prime Minister, Vice President...” et cetera.
“The Cabinet shall aid and advise the President in the general direction and control of the government and shall be collectively responsible therefore to Parliament.”
So Cabinet, not even the Ministers individually, is responsible to the National Assembly for moneys expended. So when Cabinet’s role is taken out of the procurement process, as limited as it is, Article 102 says Cabinet is accountable to Parliament in relation to public expenditure, but Cabinet has played no role in the expenditure of the money.
The Government’s position is not based upon any whimsical position. The Government position is deeply rooted in a constitutional principle. It is that you cannot hold, as the Constitution currently does, Cabinet accountable and then take away with the other hand Cabinet’s role and function. You cannot do that. Cabinet’s role in the manner in which it is contemplated by this Bill is extremely limited. In fact it is the most minimal role that Cabinet plays in the entire English speaking Caribbean in relation to procurement. That is why if we are interested in the establishment of this panacea called the Public Procurement Commission, because all powers seem to be ascribed to this body: this body is supposed to bring all solutions to the ills afflicting procurement in this country. Well, I am here to say if this Bill is rejected then the Procurement Commission will not come into force.
Thank you very much. [Applause]
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