Call For Procurement Reform!
The failure of Public Procurement Reform should spring to mind following the recent public outcry related to the circa 2002 Piarco Airport Scandal. Victor Hart, a commissioner in that enquiry, in his open letter to the Prime Minister dated March 30th, 2023 was direct in his request for the Prime Minister, to publish the ($10M) Commission of Enquiry 2003 Report on the Piarco Airport Development Project. Public Procurement reform was one of the commissioners’ recommendations according to Mr. Hart. Martin Daly, writing in the Express on April 1st, 2023, laments T&T’s dependency on US Courts. Daly asks, “Why are we not keeping our legislation up to date, and why are we not able to bring claims like these (referring to the Piarco Airport Scandal) ) in our own court”. Mariano Browne in his article in the Guardian on April 2nd, 2023, in summary, observed that public procurement challenges by the state have never been adequately addressed and remain contentious to the present time. It is clear that as a sovereign country, T&T has failed to update our legislation to facilitate success in our local courts on matters related to corruption in mega projects and thus we have to rely on the US, for example, in the Piarco Airport scandal for persons to be actually charged and for monies to be recovered. On a point of detail, as it relates to the latter, it is instructive to note that one of the main charges successfully prosecuted by the Miami Court was that of bid-rigging. At present bid-rigging is still not a punishable offense under the current laws of Trinidad and Tobago. It is however clearly defined in Section 41 of the Public Procurement and Disposal of Public Property Act of 2015. It is unfortunate that we cannot advise Mr. Browne and Mr. Daly of this incremental improvement in our laws as The Procurement Act remains non-operationalized. The Act as amended along with the attendant Regulations were proclaimed by due, albeit, protracted processes in both Houses of Parliament in 2020 and 2021, respectively, however until it is operationalized it is useless to the citizens of T&T. So is the utility of having an Office of the Procurement Regulation which costs taxpayers approximately $18M/year. Contrary to the narrative being peddled by some government officials, that operationalization of this legislation will result in clogging of the courts, this has not been the experience of Jamaica since 2019. It is the JCC’s considered opinion that the said Procurement Legislation with its Review Board as amended in 2016 under Section 51 of the Act, will actually assist in resolving contentious procurement matters before they reach the courts, and more importantly, will eventually create the necessary deterrent effect to those in society minded to dip into the public purse for private gain.
This country’s long struggle via civil society groups and individuals to reform public procurement practices is well documented. In 2012 the JCC wrote to the then Prime Minister, Mrs. Kamla Persad Bissessar pointing out inter alia that “91 recommendations of the 2010 Uff Enquiry into the Construction Sector in general and UDECOTT in particular, remain unimplemented”. In November 2014 cabinet engaged the UNDP to augment the internal audit control mechanisms and improve capacity in the procuring agency irrespective of the content and enactment of new procurement legislation. In January 2015 Cabinet approved the setting up of a Steering Committee which included a communication sub-committee, an HR sub-committee, and a legal sub-committee to support the implementation of the Procurement Act. On February 9th of 2015, the Public Sector Civil Society Group (PSCSG) headed by Eng. Winston Riley prepared a paper in preparation for the meeting with the Ministry of Finance and the Economy. The paper dealt specifically with the setting up of the OPR and the preparation of regulations. Act No 1 of 2015 was finally assented to on Jan 14th, 2015 by the previous administration. The present administration subsequently made three amendments to the Public Procurement and Disposal of Public Property Act between 2016 and 2020.Our second-term sitting government appears to remain deaf to all these clarion calls for the urgent implementation of this key legislation that has the potential to embrace transparency and value for the expenditure of public money on behalf of its citizens. Our current Prime Minister was on record again, in Jan 2023, making another promise to the nation for operationalization of the Act ‘before Easter”. Having experienced the failure to deliver on these promises by the government since 2017 and every year thereafter, the JCC sought clarification from the Office of the Procurement Regulation (OPR) on Feb 13th, 2023 by asking the following questions:
- Has the Office of the Attorney General & Legal Affairs (AGLA) reverted to the OPR with any information concerning his office addressing the state of readiness of the public bodies?
- Has the Finance Minister reverted with any information concerning his office addressing the state of readiness of the public bodies, in terms of funding?
- Has the Office of the Prime Minister given any indication of the action that the PM has taken since stating in his address to the nation in Jan 2023 that, “The Procurement Legislation will be proclaimed (sic) before Easter.”
The response from the OPR, whose website homepage says, “We stand upon the principles of good governance namely, Accountability, Integrity, Transparency & Value for Money”, was immediate, as they confirmed via return email, that the answer to all of the above was, “No”. The JCC then sought the following clarification from The Office of the AGLA via the following email on Feb 26th, 2023. ” Dear Sir, As you are aware, the Hon. Prime Minister has indicated to the public in his address to the nation in Jan 2023 that, “The Procurement Legislation will be proclaimed (sic) before Easter.” Please advise if steps have been taken by the Office of the AGLA to meet this deadline for the operationalization of the Public Procurement and Disposal of Public Property Act.” The Office of the AGLA has not responded to date. In a connected matter, the outgoing President, Paula Mae Weekes emitted office without discharging her duty under Section 10 of the Act to reappoint the sitting Regulator for a 2nd term or to appoint a new Regulator. We hope that this matter will be addressed by the incoming President.It is, however, nothing less than a travesty that, in the face of ongoing inefficiency, wastage, and corruption surrounding government procurement, key players in the government remain unwilling to respond or inform the public regarding their actions to achieve stated outcomes. This question of accountability only arises because of the ineffectiveness of this government to realize the much-needed, much-requested reformation of public procurement after eight years in office. The JCC again implores the Hon. Prime Minister Dr. Keith Rowley to kindly provide a date for the operationalization of the Procurement Act.Fazir KhanPresident – Joint Council for the Construction Industry