The JCC hereby addresses Attorney General Faris Al-Rawi’s statement via a press conference yesterday, 21st December. He has pointedly requested fact and fact-checking concerning this matter, so we shall address it accordingly. First, we agree that only Clause 5 of the Amendment Bill makes a tangible difference to the original Act in seeking to amend Clause 7. To clarify, the AG is correct that the OPR still has oversight on the disposal of public property, and it is unfortunate that some commentators have misinterpreted the removal of Clause (o) from Section 13 (1) of the Act via Amendment Bill Clause 6.

The AG states repeatedly in his discourse, however, that the government has aggressively pursued the implementation of the procurement legislation and he laid the blame squarely at the feet of the former President for not appointing The Regulator until 2018. We need to inform the public that the fact is that it was the civil society groups, including the JCC that pursued the former President on this matter. If this government was so eager why was there no Government liaison with President Carmona as early as 2016 to get the OPR appointed by the President? Two years were wasted because of this lack of interest on the part of the Government.

In dealing with the guest columnist, Afra Raymond, the AG avoided responding to the case made by the latter for ‘equality of treatment’. We implore The AG to respond to the issue raised that ‘these amendments to the Act require a special majority as they infringe upon the rights enshrined at S.4 of our Constitution.’ We humbly submit that this is a case of the spirit of the constitutional law as opposed to the letter of said law.

The AG then brought up the issue regarding ‘regulations on the conduct of challenged proceedings under Part V and the addition to or removal from ineligibility lists under Section 58.’. The AG is well aware that Part 10 of the Draft Regulations (Ref OPR Website https://img1.wsimg.com), articulates the Challenge Proceedings under its Sections 67- Procedure to Review to Section 78- Conclusion of Proceedings, inclusive. The Regulations clearly allow for the decision of the Office to be subject to review by the Public Procurement Review Board (PPRB) under Section 51A of the Act and this process is spelt out clearly in the Draft Regulations. The Regulations note under 77(5) that the standard of proof to be applied in challenge proceedings shall be that required in a Court in civil cases.

The AG boasts that the PPRB has no office. Isn’t there collective responsibility by the government and independent bodies to realize this necessary component? Again are we to believe that the government is aggressively pursuing the implementation of procurement legislation if appointed board members have no office? Or does Civil Society Groups have to take up this slack on behalf of the citizens of this country?

The AG should clarify for the public why the well-informed and well-intentioned honourable Prime Minister, Dr. Keith Rowley stated to the media on Sept 29th, 2020 that ‘In a few weeks after the Budget debate, procurement legislation will be implemented’. Was the PM also, to quote the AG, ‘oversimplifying the process’? The Prime Minister created an expectation in the public space that there would be the implementation of this legislation which, from many clamoring quarters appears to be eagerly anticipated and extremely long overdue. Three months since the PM’s Procurement Promise, we have the AG disabusing ‘the concept that simple passage of the regulations can achieve the full functionality of the Public Procurement law’.

Civil Society Groups do not have a cadre of lawyers at our disposal, like the AG or the Ministry of Finance. We would therefore welcome full disclosure at this time from the offices and officers that are responsible for all activities required for implementation and full proclamation. The JCC would therefore greatly appreciate it if the learned AG can utilize his team of lawyers to advise the public on specifically what is missing from the Draft Regulations so that the public can get a sense that the government is actually aggressively pursuing operationalisation of the OPR.

Sincerely
Fazir Khan
President – JOINT CONSULTATIVE COUNCIL FOR THE CONSTRUCTION INDUSTRY