State Enterprises were created to enhance the pace and quality of Public Procurement, yet they are now the scene of the most bedeviling paradoxes in the entire system of public administration.
Some of the key procurement issues which arise in this arena flow directly from the split character of the governance model.
The basic rationale for the existence of State Enterprises is they can be more effective because they are not bound by the strict rules which control the conventional civil service. The absence of those rules is supposed to allow more latitude in terms of hiring, borrowing and contracting. State Enterprises can hire professional staff at market rates, enter complex commercial arrangements and borrow on commercial terms, all of which should amount to significant improvements in public services.
The typical State Enterprise is owned by the State, with the shareholding held by the Corporation Sole, an exceptional legal creature which exists within the Ministry of Finance. Apart from its owner, the State Enterprise will sometimes have a ‘line Ministry’, which would be its sole or main client. For example, the Ministry of Housing & the Environment is the sole client of the Housing Development Corporation (HDC) and the Ministry of Education is the sole client of the Education Facilities Company Limited (EFCL).
State Enterprises can operate within the existing Companies Act or be established by a separate Act of Parliament, as is the case with the HDC. That legal framework ought to ensure that a satisfactory standard of corporate governance and accountability is maintained.
The fact is that many of the Directors and Officers of State Enterprises are political appointees, which puts the entire rationale onto a doubtful footing. Because the salaries and perks are so attractive, not to mention the commercial opportunities, the State Enterprises are prize targets for political appointments and favours.
Some of the main issues which arise when one is considering this sector are –
- the number of State Enterprises – there needs to be a reduction in the number of State Enterprises.
- If the politicians can instruct the State Enterprise, via the Permanent Secretary, on specifics, what is the purpose of the Board?
- Given the preceding point, do the Board members of State Enterprises have the same duties under the Companies Act as in the case of other registered companies?
- In terms of our proposed Public Procurement legislation, what is the boundary between the fiduciary responsibility of the Directors and the contracting powers of an ‘authorised officer’ – i.e. someone identified as having the power to enter certain contracts?
Proceeding along the Procurement Cycle and using the International Waterfront Centre (IWC) as an example –
- Needs Identification – This is the first stage of the Procurement Cycle and it ought to be an objective assessment of needs. In this case, the IWC was part of a huge, disastrous boom in building new offices in POS – this is all detailed at ‘Capital Concerns – New Office Buildings’ – here. Before the boom started in 2005, there was 6.5M sq. ft. of offices in Greater POS, at the start of the boom some 3.2M sq. ft., or an additional 50% of the capital’s office supply was approved for construction. Please remember that Nicholas Tower, which took 5 years to fill, is only 100,000 sq. ft. Just under 2.8M sq. ft of new offices was actually built in POS in the last 5 years, with 2.3M sq. ft. of that space (82% of it) actually built by the State. Every State project identified at the outset was executed, but in stark contrast, virtually half the private sector projects stopped before construction began. The obvious consequence of that over-building by the State has been a collapse in the office rental levels in the capital, which is detailed in the next point.
- Reconcile Needs with Funds – This is the stage at which a developer ought to consider critical questions such as the cost of funds, the cost of the project and the returns from it. That is sometimes called a feasibility test and this is where the IWC dissolves into utter confusion. When then PM Manning addressed the Senate on 13May 2008, he emphasized that every UDeCOTT project was approved by Cabinet and had been vetted by a Finance Committee on Financial Implications. That is the most important address if we are to see the depth of the problem with these State Enterprises – see here. The break-even point on such projects is the rent at which the project can repay its costs of construction – at minimum, those costs would have to include for land, design, construction and finance. On that ‘bare-bones’ basis, which makes no allowance for maintenance or periods when spaces are vacant, the break-even rent for the IWC is in the $30 per sq. ft. range. This is the largest single office building ever built in our capital and the best rents ever achieved for space of comparable quality is about half the break-even figure. There is no way that the IWC project could ever have satisfied any proper feasibility test. Every new office project started in our capital only increased the supply of offices, which reduced the market rent, which, in turn, increased the gap with the break-even rent. Under oath at the Uff Enquiry, Calder Hart tried to rationalize the confusion when he confirmed that only one of UDeCOTT’s projects had been subject to a feasibility test and that one was the IWC. He was even so bold-faced as to estimate a break-even rent in the $20 range, but, when pressed, had to admit that he had left the cost of the land out of the calculations! That is the extent of the deformed thinking which typified the best schemes of the leading State Enterprise. Only one of the State’s many office development projects tested for feasibility and in that case, the cost of the land is omitted, yet that same land is included as a part of UDeCOTT’s Assets at $224M in that very financial year. Political imperatives were allowed to pervert a process which exists to protect the public interest from this kind of empire-building. But it is in the next part that the full confusion comes to bear.
- The rest of the procurement cycle – This is the stage at which tenders were invited for design-build and the winning bidder selected, the project built and the complex opened. According to UDeCOTT’s statements, the IWC project is its flagship and an outstanding success, having been built on time and within budget. Even if one accepts those assertions as being true, the IWC project is an example of the tragic consequences of a limited application of proper procurement processes.
As a result we have a completed project which is said to have been built on time and under budget, yet makes no economic sense and has a break-even point at some uncertain point in the future, if ever.
Some collateral damage needs to be noted, to quote one of the former PM’s notable phrases. Contrary to his statement to the Senate which is cited here, UDeCOTT did not publish its accounts since 2006, which is a breach of both the Companies Act and the Ministry of Finance guidelines. A total breach of the elementary norms of good corporate governance, which is the protection the private sector structure was supposed to give us taxpayers as a safeguard. Because of the political element in the operation, we can see clearly that UDeCOTT was carrying-out the instructions of the Cabinet and those Directors have not been punished or censured in any way, apart from their public dismissal. The consequence of those breaches being condoned at the largest State Enterprises – UDeCOTT and HDC – how does one get the smaller and less-visible State Enterprises to conform to good governance?
If the priest could play, who is we?
This is why we need a complete review of our procurement controls.