PROCUREMENT (AMENDMENT) BILL 2013 – BILL NO. 17/2013 – Dec 19, 20133522 19 Dec, 2013
PROCUREMENT (AMENDMENT) BILL 2013 – BILL NO. 17/2013 – Dec 19, 2013
Minister of Finance [Dr. Singh]: Thank you very much, Mr. Speaker. I rise, Sir, to move that the Procurement (Amendment) Bill 2013 – Bill No. 17/2013 be read a second time.
In doing so, Sir, permit me to provide some prefatory remarks by way of background. This honourable House will recall and will indeed reflect in its record of proceedings that in 2003 a Procurement Bill, Bill No. 7/2003 came before this very House for consideration. The Bill sought to put in place a modern and robust legislative framework to govern public procurement activities.
Included amongst its various provisions was a clause 54 that had five sub-clauses and which together addressed the matter of review by Cabinet. Indeed, the said clause, clause 54, carried the marginal note, ‘Review by Cabinet’. In essence, Sir, that clause 54 provided for Cabinet to have the right to review procurement transactions, the value of which exceeds a certain threshold. The threshold stipulated in sub-clause 1 of clause 54 was that it be $15 million, but be subject to subsequent review, with a view to revision.
The clause went on to articulate the circumstances under which Cabinet may object to a procurement transaction and what happens once such an objection might have been raised. The clause stipulated explicitly that it shall not in any way be construed as authorising the Cabinet to award a tender to any other supplier or contractor.
It is apposite to note that in sub-clause 1 of the said clause 54, as I just mentioned, provision for review of the threshold, annual review indeed, defining which procurement transactions would be subject to Cabinet review was stipulated. In fact, clause 54(1) in the Bill read as follows:
“The Cabinet shall have the right to review all procurements the value of which exceeds fifteen million Guyana dollars. The Cabinet shall conduct its review on the basis of a streamlined tendered evaluation report to be adopted by the authority mentioned in section 17(2). The Cabinet and, upon its establishment, the Public Procurement Commission, shall review annually the Cabinet’s threshold for review of procurements, with the objective of increasing that threshold over time so as to promote the goal of progressively phasing out Cabinet involvement and decentralising the procurement process.”
That is what clause 54(1) stated. During the course of consideration of the said Bill, and at some point of time before its passage, it appears, Sir, and there have been various accounts on events that led to this development, that sub-clause 6 was proposed as an amendment to the Bill for insertion. This newly inserted sub-clause 6 provided as follows:
“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 (1) which are pending.”
I do not wish, Sir, to speculate on what may have transpired on that evening when the discussions would have taken place, involving Members on both sides of this House, or the House at that time, and which led to the insertion of this clause 54(6). I believe there are still Members of the Tenth Parliament who were Members of that Parliament and who might be better placed to recall the events of that evening.
Suffice it to say, there emerged from this House, a Procurement Act that was to become Act No. 8/2003 which included the now amended Section 54 with its six sub-clauses, one to five as originally proposed in the Bill and six as amended on the floor of the House that evening.
One can immediately focus one’s attention on the evident contradiction between Section 54(6) and 54(1). Section 54(1) clearly recognised a role for Cabinet even if that role would progressively diminish with the raising of the threshold, whereas Section 54(6) prescribed an immediate proscription of Cabinet’s involvement. That would appear to my layperson’s eyes to be an evident collision or contradiction between the two subsections. It would appear that this House legislated in Section 54(1) that Cabinet will review contracts above a certain threshold and grant its no-objection before the award of the said contracts and that even after the Public Procurement Commission would have been appointed, that Cabinet’s involvement will continue and that that threshold would be subject to annual review.
Section 54(1) is quite clear in describing a state of the world that was anticipated to exist subsequent to the appointment of the Public Procurement Commission. Section 54(6) then came and described a diametrically different state of the world to obtain after the appointment of the Public Procurement Commission. That would seem to me to be an evident, a clear and an obvious collision.
Like I said, it is not for me to speculate on what might have been the intentions of those who proposed and drafted the amendment at the time, but the result was legislation. The result was a principal Act that we now have before us that has written into it an inherent contradiction, placing us in a conundrum. By which subsection of Section 54 are we to be guided in the world that will prevail subsequent to the appointment of the Public Procurement Commission?
Are we to be guided by Section 54(1), which contemplates continued involvement of the Cabinet, or are we to be guided by Section 54(6), which prohibits Cabinet involvement? By which are we to be guided? Which is superior? Both are subsections of a single statute, that is to say the Procurement Act.
This is the circumstance in which we find ourselves today. Recall, Sir, that the Cabinet’s right of no-objection is one that is exercised right now, appropriately and lawfully so under the Procurement Act. Indeed, prior to the enactment of the Procurement Act and its coming into operation, the Cabinet, in fact, had a prior involvement that at that time was not no-objection, but at that time was approval of contracts above a certain threshold. The Procurement Act reduced Cabinet’s involvement to mere no-objection and to contracts only above a certain threshold.
In contemplating a world where the Public Procurement Commission is imminently to be appointed, and I hasten to add that the constitutional article that establishes the Public Procurement Commission, that is to say Article 212W, exists in the Constitution and enjoys constitutional status, because both sides of this House voted in its favour. It would not have been able to secure inclusion in the supreme written law of our land had it not enjoyed support from both sides of this House.
Contemplating a world where this Commission is imminently to be appointed, we have before us a conundrum. We have a contradiction to be resolved. It is that conundrum that the Bill currently before us, that is to say the Procurement (Amendment) Bill 2013, seeks to resolve. Put simply, Bill No 17/2013 seeks to repeal subsection (6) of Section 54, that is to say to remove the amendment that was inserted on the floor on that fateful evening and to restore Section 54 to its original formulation, that is to say the formulation in which it came before this House in Bill No. 7/2003. Hence, Bill No. 17/2013 has really just one substantive clause, that is to say clause 2, which states very simply:
”Section 54 of the Principle Act is amended by the deletion of sub-section 6.”
That is all that this Bill seeks to do. There is an array of much more fundamental issues relevant to consideration of this Bill. One could say simply that the Bill seeks to correct the contradiction in Section 54, remove the anomaly that was created by the amendment moved on the floor on that night, and resume one’s seat. That temptation is before me. I will resist it though on this occasion because I believe firmly that there are fundamental issues at the core of this matter. What are these fundamental issues? This is an issue that has generated much public debate and discussion, much commentary. It is important that certain key issues be acknowledged, put on the table and ventilated in their fullness.
First of all, is the Cabinet’s involvement in procurement a novelty? Are we seeking by Bill 17 of 2013 to introduce something that does not exist right now? The answer to that is, of course, a resounding no. Prior to 2003, Cabinet approved contracts above a certain threshold. In fact, dating back to the earliest days of our financial regulations - and here I speak of decades of financial regulations - principle acts passed by our distinguished predecessors and Parliaments that have preceded us- and regulations made there under for decades now, provided for a hierarchy of authority as it relates to contractual approval- procurement approval. Contracts below a certain level or the authority, as it relates to contracts below a certain monetary level, that is to say, small or petty contracts, was delegated to individual technical officers within Ministries, Departments and Regions. So an Administrative Officer or a Permanent Secretary enjoyed full and unfettered authority to award and to execute procurement transactions for contracts below a certain threshold for smaller contracts.
A hierarchy within that was established. Contracts below threshold required no competition, that is to say, for very small transactions like if you were going to buy a single item of nominal value; if you were going to buy a staple machine or a box of paper clip, I gave perhaps an exaggerated example, but most of us in this House would be familiar with this hierarchy - very small procurement transactions, goods and services of nominal value could be procured without public advertisement. Once a certain threshold was hit, that is to say once the size of the transaction achieved a certain threshold, competition was required; so three quotations. Once a certain other threshold was achieved, public open tendering was required - advertisements, receipt of tenders in a sealed box, public opening, et cetera. Once a certain higher threshold was achieved, then the involvement of the Cabinet was invoked. This system has been in existence in one shape or another for a considerable length of time.
In fact, in 2003 the new procurement act enacted sought to change the Cabinet’s role from one of approval to merely one of no objection, and specified the circumstances under which Cabinet could express its no objection. Cabinet having expressed its no objection for larger contracts then, the contracts get referred back to the decision making board which is the National Procurement Tender Board. That is the system that obtains today. Many of us, all of us in this House, should be well aware of the considerable progress that has been made in making our procurement system an open and transparent one. All of us would be aware of the gains that have been made and progress that has been achieved in establishing an open and transparent procurement system.
There is no need for one to speculate about this matter. Let us simply peruse the archival records, let us examine the newspapers and advertisements carried in them for procurement transactions. One knows at times when the national newspapers carried virtually no advertisements for procurement transactions. Today, if we pick up the newspapers, we witness a plethora of advertisements for public procurement transactions. This is a matter of public record. I invite those who are inclined to examine this matter with any degree of rigour to simply peruse the newspapers. Is it that prior to 1992 nothing was being procured? There were no advertisements in the newspapers to suggest that anything was being procured. Is it that under Mr. Greenidge’s tenure no goods and services were being procured? One merely has to pick up any newspapers dating from those days to see the striking absence of advertisement of public procurement transactions. [Interruption] Mr. Greenidge asks about Guyana’s rank. I hear a heckle, but I know you frequently admonish us to remain unaffected by the heckle.
However, it is difficult for one to resist the temptation. I should say it is difficult for me to resist the temptation when I hear Mr. Greenidge ask. I see the Leader of the Opposition smiling in acquiescence. I believe that he understands the temptation that I feel. It is difficult to resist the temptation when Mr. Greenidge invites us to speak of Guyana ranking prior to 1992. That would take us down a journey that I daresay will embarrass the Hon. Member and sully and tarnish his reputation. I do not wish to do that, so I will resist the temptation. [Interruption] You asked about the ranking, Sir. Unless I am mistaken, I thought you were presiding over the economic affairs of the country, but, perhaps, I am mistaken in that regard.
Nevertheless, I note your silent admonition. Suffice it to say that I invite anyone interested in a dispassionate examination of this matter to compare the column inches of national newspapers devoted to public advertisement. This is a simple invitation that I am issuing – take a newspaper of the late 1980s or early 1990s and examine the number of instances in which a public procurement transaction was advertised and take a contemporary national newspaper and the conclusion is an unavoidable, inescapable and inevitable one. Today, we have a system that is open and transparent. Not only are the transactions advertised publicly, but today, those advertisements indicate at the bottom that tenders will be opened on “x” date, at “x” venue. In most instances, it is the National Procurement Tender Board.
Mr. Speaker, I will go further. We enjoy the circumstance in Guyana today where the mass media is free to attend the opening of tenders and they do so. They report publicly and we welcome this interest and scrutiny. They report publicly who the tenders are and what are the prices tendered. That information is carried in the national newspapers. What is more, when an award is made, that award is publicly announced, made publicly available and published on a website. It is placed in the public domain and becomes part of the public record. So there are public advertisements, public openings, public announcements of the successful tender, a documented and well established mechanism for protests if one feels one was treated unfairly. There have been instances where persons have complained or have enquired why they were unsuccessful and they were advised that their bid was compliant or non-compliant in whichever respect it was or was not. So let us be clear that as far as the relevant standards of rigour are concerned, Guyana’s public procurement system can withstand any degree of scrutiny.
Mr. Speaker, firstly we have the fact that this Bill does not seek an increase, an embellishment, or an enlargement of the authority that is currently enjoyed by Cabinet. That must be made clear. This Bill does not seek to clothe the Cabinet with any additional authority that the Cabinet does not currently enjoy. That point needs to be made.
Secondly, the argument has somehow crept into the public consciousness that the Public Procurement Commission can somehow discharge or will somehow discharge this function and that this Bill seeks somehow to diminish or reduce the mandate or authority of the Public Procurement Commission. That is the second issue that I wish to address. The Public Procurement Commission is a constitutional commission. It is established by virtue of Article 212W, inserted into the supreme written law of our land by a constitutional amendment act passed by this honourable House – again passed by our distinguished predecessors with a vote in favour from both sides of the House in 2001. I believe it was act No. 5 of 2001that inserted the said Article 212W. That Article stipulated:
“There shall be a Public Procurement Commission, the purpose of which is to monitor public procurement and the procedure therefore 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 according to law and such policy guidelines as may be determined by the National Assembly.”
That Article having established the Commission, the next article spoke of the Commission’s composition, Article 212X. Article 212Y spoke of the procedure for its appointment. Importantly, Article 212X says that the Commission shall be appointed by His Excellency the President after its members shall have been nominated by the Public Accounts Committee - which we know is chaired by a front bench Member of the Opposition by Standing Orders – and after such members shall have been approved by not less than two-thirds of elected Members of this National Assembly. Article 212Y speaks of appointments and vacancies. The next article about the secretariat and the next Article 212AA speaks of functions of the Public Procurement Commission; monitor, review, promote awareness, safeguard national interest, monitor again, monitor and review, investigate complaints, initiate investigations, etcetera. Article 212AA is instructive.
There is nothing that can be done by simple majority that can limit, reduce or otherwise alter these constitutionally enshrined functions of the Public Procurement Commission. So that is the second key issue that I would like to address. Does the Procurement Amendment Bill currently before us seek somehow, put simply, does the preservation of the Cabinet, no objection in any way limit, restrict, proscribe, or hinder the functions or discharge thereof of or by the Public Procurement Commission. The answer to that would have to be equally a resounding no. We cannot by simple majority reduce constitutionally enshrined functions that were vested in this Commission by a two thirds majority, unless of course we apply the interpretation that some of my friends on that side of the House would like to apply to the entrenchment clause of the new Constitution.
If we apply that interpretation, I see my friend the distinguished Hon. Member Dr. Rupert Roopnarine, who served on that constitutional commission, and who I believe must be shuddering to think that these wonderful 2001 constitutional articles can now all be swept aside by way of simple majority. Somehow I doubt that the Hon. Member Dr. Rupert Roopnarine, distinguished Member as he was... [Interruption] I hear Mr. Greenidge saying he cannot speak. It sounds like you would like to speak for him. I would not dare to do that. I should not paint all Members of that side of the House with the same brush as I paint Mr. Greenidge. I really should not do them that disservice. Unless one applies Mr. Greenidge’s unique interpretation of the 2001,... [Interruption] I hear some Members on this side of the House urging me to paint them all with the same brush.
Mr. Speaker: To paint what, sorry?
Dr. Singh: I hear some Members on this side of the House suggesting that the brush with which I paint Mr. Greenidge should be applied more widely. I was saying that unless one applies Mr. Greenidge’s interpretation... [Mr. Williams: My own too.] ...and Mr. Basil Williams’ now confessed interpretation of the constitutional entrenchment clause which suggests that the overwhelming majority of these 2001 constitutional amendments can now be swept aside by a simple majority, then we cannot vary the functions of the Public Procurement Commission by simple majority. I wish to make the point emphatically, that the preservation of Cabinet’s right of no objection for contracts above a stipulated threshold, that is to say the legislative amendment sought, the status quo to be accomplished by the legislative amendment sought by Bill No. 17 of 2013, could not and does not and will not in any way reduce, diminish or restrict the functions of the Public Procurement Commission.
Those functions remain constitutionally protected unless Mr. Greenidge does injury to them; they remain enshrined in the comfort of the supreme law; they remain intact. Once the Commission shall have been appointed one can only assume they will be discharged in their fullness. This Bill currently before us does no injury, does no harm to these functions. The Public Procurement Commission (PPC) will function and will discharge it constitutionally vested functions; let us be clear about that. Let us not run around creating the impression that somehow Cabinet’s no objection will mean that the PPC will not be able to do its work. Nothing could be further from the truth. The PPC will of course do its work; its functions are protected in the constitution. So that is second major issue I would like to put on the table.
Thirdly, I would like to address the issue of whether and why Cabinet should have the right of no objection. This in fact goes to the very core of the constitutionally enshrined role and responsibility of the Executive. It goes to the very core of the concepts of accountability and responsibility. [Mr. Williams: What about transparency?] And indeed transparency, but more particularly accountability and responsibility; it goes to the very core. I will return and elaborate on this matter before I conclude.
Let us examine whether Guyana displays any uniqueness or any novelty in Cabinet’s right of no objection or Cabinet’s involvement more generally in a function such as this. Let us examine, before I get to the comparative jurisdictional example, our development partners, the donor agencies. They have mature procurement regulations and guidelines that are in existence, approved by their respective boards and that are in operation. One merely has to examine any one of them to see that in all of their activities, whether it is the Inter-American Development Bank (IDB) or the World Bank or the European Union, they all have the right of no objection before a procurement transaction can be executed using funds sourced from their treasuries. Let us examine the European Union’s... [Interruption] We are getting to that. I can understand your eagerness to hear what I have to say. Let us examine the European Union’s procurement guideline. There are lengthy guidelines; I only extracted the relevant paragraphs. I should have gone back and said in the case of the European Union copies of the tenders are submitted to the relevant European delegation in the applicable jurisdiction whether Guyana or wherever. They would have had to receive and given their no objection to the tender document in the first instance.
I will go straight to where it says:
“Before signing contracts ...”
And they are very lengthy guidelines, in fact, I have only extracted the relevant paragraph.
“... the contracting authority submits ...”
In fact, I should have gone back and said in the case of the European Union, copies of the tenders are submitted to the relevant European delegation in the applicable jurisdiction whether it is Guyana or wherever. They receive copies of the tenders; in fact, they would have received and given their no objection to the tender document in the first instance.
“But before signing contracts, the contracting authority submits the results of the evaluations for approval to the European Commission that verifies conformity with applicable procedures. It also sends the contracts to the European Commission for endorsement before signing them.”
This is replicated everywhere if you look at the World Bank Procurement Guidelines. I will read from Procurement of Goods, Works and Non-consulting services under IBRD Loans and either Credits and Grants, January, 2011; procedures were applicable not only to Guyana but to any borrower from the World Bank. I will read from page 39. Again, I have lengthy sections highlighted, but I will go straight to the point.
“The borrower shall award the contract only after receiving the no objection from the bank.”
That is the World Bank Procurement Guideline. If you are procuring something funded by the World Bank, you are required to obtain, prior to the award of the contract, World Bank no objection. It is very standard practice.
If one were to look at the IDB policies for the procurement of goods and works funded by the IDB – this is a document dated March, 2011 – one will see, the document says at page 28, “After bids are received...” and again this is applicable not only to Guyana, but to every borrower from the IDB, for every transaction that is funded by IDB resources. At page 28, the procurement guidelines read as follows:
“After bids have been received and evaluated, the borrower shall, before a final decision on the award is made, furnish to the bank, in sufficient time for its review, a detailed report on the evaluation and comparison of the bids received, together with the recommendations for award and such other information as the bank shall reasonably request.
The bank shall, if it determines that the intended award would be inconsistent with the loan contract and or the procurement plan, promptly inform the borrower and state the reasons for such determination. Otherwise, the bank shall provide its no objection to the recommendation for contract award.”
This is the IDB procurement guidelines. I will read again...
Mr. Speaker: One second please Hon. Minister, your time is up. You need to request an extension.
Mr. Hinds: I move that the Hon. Minister of Finance be given fifteen minutes to continue his presentation.
Mr. Speaker: Hon. Members, there is a motion on the floor for the Hon. Minister to continue. Please note that in our neighbouring Trinidad and Tobago, Members time has been abridged to 20 minutes per presentation as of Monday.
Question put and agreed to.
Mr. Speaker: Hon. Minister there is no objection it would appear. You may proceed.
Dr. Singh: Thank you, Sir. The IDB guideline said very clearly,
“The bank shall provide its no objection to the recommendation for contract award.”
It goes on to say,
“The borrower shall award the contract only after receiving the no objection from the bank.”
There you have it. This responsibility is discharged, not by some nebulous entity called the bank. It is discharged by staff of the bank. It is not staff’s money. This is a function that is discharged by agents of the bank – management and staff, not by some nebulous concept out there; some ethereal concept out there called the bank. [Interruption]
I can understand the agitation over there. I am told by more experienced Colleagues, that when my friends on that side of the House become agitated, you must be doing something right. I can understand their agitation, it is a measure of the gravity by which they are struck at the arguments I am making. Were they to be sitting silently, I would be worried; I would be thinking of myself as ineffectual.
Let us turn to the Caribbean – comparable jurisdictions. Let us turn to Jamaica – the Contractor General Act. Let us examine the functions of the National Contracts Commission. My friends on that side of the House, I can see their excitement at the Jamaican example because they clearly have not studied it. They see the odd newspaper report about the Contractor General in Jamaica and they become excited. They clearly have not studied the Jamaican example. [Mr. Nandlall: Why are you surprised?] I am told I should not be surprised by the fact they have not studied it. I still give them the benefit of some doubt.
Let us examine...
Mr. Speaker: Okay, Hon. Members, let us settle down so that we can have this debate continue please. Proceed please, Mr. Minister.
Dr. Singh: Thank you, Sir. I am told that when one meanders into irrelevances it is a sign of a man clutching at straws.
Mr. Speaker: You should know when the Speaker says let us settle down, it is on both sides. I advise that you proceed with your presentation.
Dr. Singh: Thank you Sir. Let us examine the Jamaican example. Within the Jamaican regime, is provided as follows: the establishment of a National Contracts Commission. Amongst the functions of that National Contracts Commission are as follows – I read here now from section 23 (d) (c):
“In the case of Government contracts above the specified limits making recommendations to the Cabinet regarding the award of such contracts.”
That is the Jamaican law. If Members want to have that further elaborated, I invite for your consideration, the Government of Jamaican Handbook of Public Sector Procurement Procedures, Volume One of Four. General provisions, Ministry of Finance and Planning updated, not so long ago, the 14th May, 2012.
At page 6, under section 2.2, titled: “Functional Responsibilities” are the responsibilities set out at 2(2) (1) of the Cabinet. I quote Sir, from this Jamaican Handbook of Public Sector Procurement Procedures, as follows, at section 2(2) (1) it says:
“The Cabinet is responsible for setting the national policy for public procurement and directives that governs the procurement process. Cabinet approves the award of contracts with value above the prescribed threshold.”
Permit me Sir to repeat that for emphasis.
“The Cabinet is responsible for setting the national policy for Public procurement and directives that governs the procurement process. Cabinet approves...” Not grant a no objection. “Cabinet approves the award of contracts with values above the prescribed threshold.”
This example replicates itself across jurisdictions throughout our Region. [Mr. Ramjattan: The Jamaican Constitution does not have Article 12 (W).] What we have in fact is something superior, with an additional layer of oversight. Not something inferior, but some superior.
This example replicates itself across many jurisdictions. In much the same manner one can example legislation across our Region. In fact, one can go outside of our Region and examine provisions of more developed countries. One can in fact go outside of our Region and go to jurisdictions outside of our Regions – much larger jurisdictions Sir, where in fact the functions of procurement transactions still resides within the Executive authority, subject of course, to controls and systems for disclosure, accountability and transparency. We have no problem with that. In fact, we were the ones who have put this legislative framework on the law books of our country. Make no mistake about that.
The question is, why is it that all of these jurisdictions... if one looked at Canada there is the Treasury Board, which in fact is a Board comprising five Cabinet Ministers that is the ultimate authority for procurement transactions. That is Canada, a mature jurisdiction with a large and complex bureaucracy. The responsibility for procurement transactions rests with the Treasury Board with comprises five Cabinet Ministers.
The question is, why involvement of the Cabinet in any manner shape or form? Like I said earlier, the answer to this question, I would not accuse the Canadians or the Jamaicans of crookedness the way that Mr. Greenidge would like to. The question is why should the Executive be involved, whether it is the Treasury Board in Canada or the Cabinet in Jamaica or the Cabinet of Guyana – why?
There can be no responsibility without involvement/participation – absolutely none. One cannot hold the Cabinet responsible for the outcome of a process, in which the Cabinet plays no role. That is a very fundamental principle. That is a very fundamental and cardinal principle. How can one hold the Cabinet responsible for the outcome of a process were the Cabinet to be excluded for any involvement in that process? How can one possibly do that? If one plays no role in a process then one must necessarily be absolved of any responsibility of the outcome of that process. It goes without saying. If a person is the Chief Executive Officer (CEO) of a company and they are going to be held accountable, responsible and answerable to the shareholders of their company for a process or an activity of the company, then they must, by definition, be given some authority over that process. If one is excluded from that process entirely and told they have no authority, role to play or responsibility in the function, then surely the shareholders must also say that they are absolving you of any responsibility.
Surely, if any entity or individual is excluded from a process then they must be absolved of responsibility for the outcome of that process. That goes without saying.
It is the Executive/Cabinet, under our Constitution, which has collective responsibility for the execution of the National Budget, the incurrence of expenditure, the completion of projects, ensuring the projects are executed within budgetary allocations and in those instances where projects require additional funding to consider whether we can accommodate the additional funding required fiscally. It is the Cabinet that is responsible collectively for the fiscal outcomes of the country. It is the Cabinet that is answerable to the people of the country for timely execution of civil works, funded by moneys approved by this National Assembly. It is the Cabinet and the Government that is accountable to the people of Guyana for the outcome of those processes. That is why indeed we are subject to the scrutiny of this National Assembly and a most welcome scrutiny it is – a most welcomed scrutiny it is. We have nothing to hide.
This goes to the core of the issue of accountability. If I will hold a person accountable for a process, I cannot exclude them from involvement in that process. If I exclude them from involvement in that process, I must absolved them of any responsibility for the outcome of that process.
That is the core of this matter. For as long as we will hold the Cabinet and the Executive responsible for public administration in accordance with the laws of our country; for as long as we will hold the Executive and the Cabinet responsible for implementation and execution of the Budget; for as long as we will hold the Executive and the Cabinet responsible for the fiscal outcomes of our country, we cannot exclude the Executive and the Cabinet from involvement in a process such as this. That Sir is my simple submission to you.
Mr. Speaker: Hon. Minister you have two minutes remaining.
Dr. Singh: Sir, I will not be requiring an extension. So Mr. Speaker, I submit to you, respectfully, that this Bill on the surface appears simple, just restoring the status of the 2003 Bill in the condition in which it came to this House, that is to say by the repeal of clause 54(6). But it goes much beyond that. This Bill addresses very fundamental issues about the role of Government under our Constitutional architecture. I submit to you Sir, that we all acted in error by inserting that section, subsection (6) in clause 54 and I urge this House to correct the dilemma and contradiction that was created by the insertion of clause 54(6), by timely passage; that is to say, passage today of the Procurement (Amendment) Bill, currently before us. With those, perhaps not so few, words, I commend the said Bill to this Honourable House. Thank you very much. [Applause]
Dr. Singh (replying): Thank you very much Mr. Speaker. Permit me to thank my colleagues on both sides of this House who have contributed to the debate on this Bill thus far, and in particular my colleagues on this side of the House for the customary competent manner in which the merits of this bill were laid abundantly clear before the people of our country.
I will confess my disappointment that my colleagues on that side of the House were unable to be swayed by our arguments. In fact, in some rather striking instances they departed even from positions they had previously taken. Nowhere was this better illustrated than in the presentation made by the Hon. Member Mr. Ramjattan who had on a previous occasion spoken very clearly in rebutting no less a person than the then distinguished Leader of the Opposition, Mr. Robert Corbin, who at the time had alluded to what he perceived to be some desecration of the 2001 Constitution amendments.
In direct response to Mr. Corbin’s arguments Mr. Ramjattan made the arguments quoted by the Hon. Attorney General which I will not repeat, except to say that the thrust of his argument was that responsibility must rest with whom we shall hold accountable. For as long as we shall hold the Minister accountable, authority must be vested in the Minister. [Interruption] The Procurement Commission was already in place in the constitutional provisions. Mr. Ramjattan was speaking at a time when the status of the constitutional commission was no different from its status today. It was already provided for in our Constitution but yet to be appointed. So in that respect 2003 was no different from today. Yet Mr. Ramjattan saw it fit, and I feel I must repeat for emphasis what he said.
“I am certain Mr. Corbin would know (lecturing the distinguished Leader of the Opposition) that because to be accountable it means you have to have the responsibility, and who else in a National Assembly should have the responsibility but the Minister.”
I must confess that it is a rather unfortunate argument when political leaders of this country will tender arguments of convenience; arguments not grounded in conviction or in principle or in what is right against what is wrong, but arguments of political convenience. In 2003, Mr. Ramjattan had no difficulty whatsoever advocating ministerial authority and now, conveniently, Mr. Ramjattan casts those arguments aside. Were we even to give him the benefit of the doubt and say, perhaps, he has forgotten we know that he is in possession of the Hansard, because he rather conveniently quoted from other sections of the Hansard of the very sitting of this National Assembly.
So I believe that much has been disclosed tonight not only as it relates to procurement, and matters of procurement and accountability, and the structure of our procurement legislation, but much has been disclosed too about the manner in which some Members of this Hon. House choose and craft their arguments. I would say it is most unfortunate, this display of abandonment of principle in favour of political opportunity. The fact of the matter is that the Cabinet is clothed with authority and responsibility to this National Assembly.
The Hon. Attorney General alluded to the constitutional article that speaks of Cabinet’s collective responsibility and cabinet’s responsibility to this House. How will we hold Cabinet accountable if we say to Cabinet you have no role? This is the core of the issue as I said earlier. There must be a reason why jurisdictions around the world have vested their cabinets with authority and responsibility and a role to play in functions such as this. I hear our colleagues on that side of the House saying that arguing that Cabinet must be clothed with such authority somehow insinuates that the Cabinet is wrong. We are not saying that. [Interruption] Absolutely not; no one has said that. If you cannot be faithful to your own word, Sir, please do not put words in other people’s mouths. Nobody has said that. Let me say that there must be a reason and the reason is simple. In Jamaica, Barbados and so many other jurisdictions – we heard about Singapore, Canada, and Australia – it has to do with the essence of accountability.
Let us examine the main arguments that have been made. This amendment we seek today does not in any way increase Cabinet’s involvement in the process. That has not been disputed, it has not even been disagreed with; it has certainly not been disproven. The preservation of the Cabinet no objection role does not in any way diminishes the functions or limits the discharge of the functions of the Public Procurement Commission. Those functions remain intact and pristine. That has not been disputed, disagreed with, debunked or disproven. That jurisdictions around the world have vested their cabinets with similar authority has not been disproven or even seriously disputed. The argument that there is a principle that attaches accountability to responsibility has not been addressed by our colleagues on that side of the House. None of these arguments have been addressed in any direct or substantial way. Instead there has been the customary resort to anecdote and hyperbole, speculation and political titillation. This has been the approach of the Opposition on this matter.
Mr. Speaker, I have had a number of discussions on this proposed amendment with various stakeholders across the country. I recall being asked a question by a senior member of a large representative stakeholder group in Guyana. I am speaking of the Private Sector Commission. [Interruption] Mr. Nagamootoo is trying to distract me from my arguments. Do you know what I told them today?
Mr. Speaker: Has he succeeded?
Dr. Singh: I must resist the temptation. Mr. Speaker, I do not know what Mr. Nagamootoo is insinuating, but I had several conversations with several stakeholder groups. I was asked in a very direct way were the positions to be reversed, say your colleague on that side of the House, Mr. Greenidge, to be sitting where I sit today... [Interruption] This is the question I was asked: What would my position be on the Cabinet no objection were my position to be reversed with that of Mr. Greenidge, were Mr. Greenidge to be sitting where I am an I to be sitting where Mr. Greenidge is? My response was as follows: were the people of Guyana ever to be visited by this most calamitous of eventualities – I see the Leader of the Opposition struggling to restrain the inevitable smile he will break into shortly – I would most certainly insist that the Cabinet’s no objection be preserved. Why? I would want to be able to hold Mr. Greenidge accountable. I would not want Mr. Greenidge to be able to say, “I am not involved; I did not play any role, so you cannot speak to me, go and speak to the Public Procurement Commission.” I would want to be able to hold Mr. Greenidge accountable, were he sitting here and I sitting there, Sir. So, I would insist.
Were the Cabinet not to be involved Mr. Greenidge would be able to be like Mr. Pontius Pilate. He would be able to wash his hands and say, “It is not me, it is the People’s Progressive Party Civic (PPP/C).” I would not want to afford Mr. Greenidge such immunity, Sir. I would want to be able to hold him accountable and that was my answer to it. [Interruption]
There is a popular character – I think they are called sitcoms, situational comedies – there is a very popular character in a very popular sitcom, I believe his name is Mr. Urkel. He too wrings his hands and say, “Did I do that?” Mr. Speaker, that was my response to the said question.
Let us examine the alternative. Let us say that the Cabinet did not have the right of “no objection”. Imagine the state of the world; imagine the alternative. The Cabinet has no right of “no objection”; the PPP/C has been appointed and the Cabinet’s “no objection” is extinguished. The Cabinet has “no objection”. Let us imagine the evolution of this state of the world. Recall that the PPP/C is an entity of finite life; recall that the PPP/C is a body of finite life - everyone’s term of office is finite... [Mr. Ramjattan: No it is permanent in the Constitution.] They are finite Sir. [Mr. Ramjattan: The Minister is also finite too.] Let me finish my point, Sir. Recall that the PPP/C is an entity with finite life. I believe a person serves a term of three years and then they are renewed for further three years, but they cannot be renewed beyond the second term, if I am not mistaken. In fact, I believe that some members are appointed for four years in the first instance so that there is a staggering.
If is inevitable that at some point in time members of the PPP/C will find their terms of office expired and find themselves ineligible for reappointment. Imagine the following situation where one has the PPP/C that with the passage of time has had terms of office of its individual members extinguished and this House finds itself in a situation where it is incapable of arriving at point where a 75% majority is achievable. That is not an inconceivable position. In fact, we speak now about the President appointing the PPP/C, there is a hurdle still to be crossed and that is the attainment of the two thirds majority in this House.
Imagine a situation where we have achieved the two thirds majority and we appoint the PPP/C and the Cabinet’s role is extinguished. The first sets of members have had their terms of office expired and so the PPP/C is no longer completely constituted. This House finds itself in a situation where it is incapable of mustering the required two-thirds majority to renew or to make new appointments, so there is an incomplete constituted Public Procurement Commission. Where does this nation find itself? This nation finds itself then without a fully constituted Public Procurement Commission and in the limit, without a Public Procurement Commission because everyone’s office would have been expired. It finds itself where the Cabinet has no involvement in the procurement process and so it finds itself in a situation far worse than where we are today. We will not be in a position to even say the Cabinet is to be held responsible. That is not an inconceivable eventually, Sir. That is the reality.
Our argument is that the role of constitutional Public Procurement Commission remains intact. We are not arguing for a diminution of that role. The role of that Commission remains intact. We are arguing that that body is, like the Attorney General said it best when he said that that body is at the apex of the system. It is an oversight entity. It cannot review itself. It cannot monitor what it did itself. One cannot close, as Mr. Ramjattan seems to be suggesting, I trust that he will forgive me if I misinterpreted him, but at one point in time I thought he was suggesting that the PPP/C should somehow play the role that the Cabinet is playing and that the PPP/C should be approving and granting “no objections” for contracts. I do not know if I understood him correctly. [Interruption]
How can you say to the PPP/C, “You are the entity that will be making or granting approvals for awards and by the way, the Constitution also says that you will be monitoring.” Who will you be reviewing, is it yourself? Who will you be monitoring, is it yourself? The PPP/C cannot substitute for the Cabinet. Like I said, the Attorney General said it well; the PPP/C is, at the apex of the system, an oversight and monitoring body.
None of the substantive arguments made has been responded to. The fact of the matter is that the attempt to exclude Cabinet runs counter to the principle of accountability. It runs cardinally and diametrically countered to the principle of accountability. One cannot hold accountable someone who plays no role – simple. [Mr. Nagamootoo: Is in awarding contracts?] In anything. If someone is running a company, they cannot hold someone accountable for a department that they have no responsibility for. They cannot be held accountable for the outcome of a transaction or process which they played no part in. This is simple – extremely simple. The world over clearly has learnt this lesson, except for our friends on that side of the House.
I do not believe that additional arguments need to be tendered. I have no doubt that there are other arguments available out there. I believe the case has been made compellingly in favour of the preservation of the Cabinet’s “no objection” in the Procurement Act. I believe that this is, like I said, a compelling case. I believe the merits of the Procurement (Amendment) Bill are evident when the substance of the Bill is examined.
I hope, notwithstanding the arguments made by my Colleagues on that side of the House, that this nation will not be subject to yet another instance of the might of numbers; the power of the majority of one. Defying reason; defying logic; and simply saying, “Even if it is right; even if it makes eminent sense, we will vote against it because we have the power to do so.” Mr. Speaker, with those words I commend this Bill to the House and I appeal, once again, for its unanimous passage. I move that the Procurement (Amendment) Bill 2013 be read the second time.
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