This article will appear on New Year’s Day – 1 January 2020 – and it is a direct criticism of the Trinidad & Tobago government’s unexplained delays in the full implementation of the new Public Procurement and Disposal of Public Property Act (the Act). In my view those delays are unacceptable and a serious cause for public concern.
On 23 November 2018, the Finance and Legal Affairs Joint Select Committee of Parliament, took evidence on the matter of The Implementation of the New Public Procurement System.
That JSC, under the Chairmanship of Independent Senator, Sophia Chote SC, heard from the Office of Procurement Regulation (OPR) and the Ministries of Finance and Public Administration. That JSC Report of 6 May 2019 gives a detailed and encouraging account of the steps being taken to bring this law into full effect. Sad to say, but at page 23 of that Report we are told that –
“…The full operationalisation of the OPR should be completed by March 31, 2019 and all entities must be in accordance with the requirements of the Act…”
After that JSC evidence was given, the Finance Minister’s statement to Parliament on 22 February 2019 gave typically stark criticisms of those who had found fault with the government’s apparent delays in implementing the new system.
Given that the Act provides framework legislation, the actual oversight of these important transactions in Public Money is enabled via Handbooks, Regulations and Guidelines, which were drafted by the OPR. Detailed comments on those drafts were obtained from Divisions of the Finance Ministry, as well as external Senior Counsel. Those comments were submitted to the OPR by the Ministry in February 2019. But apart from commenting on the OPR’s drafts, the Minister went on to make this welcome point –
“…The Ministry of Finance therefore raised for consideration the inclusion of provisions that would mandate procuring entities to effectively maintain assets that were procured using public monies and setting minimum standards for such maintenance…”
Minister Imbert’s statements seemed adequate, concluding with –
“…I remain committed to attaining full implementation of the Act in the shortest possible time and the Ministry of Finance will continue to work assiduously towards that goal…”
Now consider the OPR’s Public Advisory #11 issued on 13 November 2019, which advises that the redrafted Regulations were submitted to the Minister since 2 September 2019. I checked before writing this article and I was told that a reply is still awaited. Well I tell you.
I am also reliably informed that one of the key areas concerning the Ministry in settling these operational rules is the extent to which the OPR can oversee Public Private Partnerships (PPPs). That has been my information for some time, hence my steady focus on that procurement approach in recent times.
Given that Public Private Partnerships (PPPs) are becoming a most important approach in terms of transactions in Public Money, this is a critical issue on which we must get clarity.
I was pleased to note that both T&T Transparency Institute and JCC have now made clear statements calling on the government to implement this new law now. I am joining those calls, as the delays are as unacceptable as the secrecy.
Silence is the Enemy of Progress.
ADDENDUM: Private Public Policy?
Apart from the delays, I am also very concerned that these important arrangements are being settled privately, in yet another trespass across the proper boundary between public and private territories. The entire new system was intended to remove the detrimental secrecy which is supporting the gross waste and theft of Public Money which has beset our country. The open databases of upcoming contracts; contract awards; complaints; investigations of those complaints and the decisions of those investigations; final project costs; disbarments and so much more, all speak to an end to the bad old days of chronic secrecy. A secrecy we know was not effective in promoting or even safeguarding the public interest.
The new law was itself developed collaboratively by Civil Society in a long-term exercise between the JCC; the T&T Chamber of Commerce; the T&T Manufacturers’ Association; the American Chamber of Commerce and the T&T Transparency Institute. At all times our drafts, positions and counter-proposals were published so that the widest possible inputs could be had on these important changes. Indeed, we had made the declaration, early in our campaign, that this law would become the most important one in our country, second only to our very Constitution.
Mind you, those open-handed negotiations were during the bad old days of the Peoples Partnership, so where are we now?
If Finance Minister Imbert has significant concerns and/or counter-proposals on these important Regulations, Handbooks and Guidelines, then he needs to make those public so that we can contribute to that debate as informed stakeholders. There is no room whatsoever for any notions of private, confidential or secret discussions on these arrangements, supposedly in the public interest. The public interest is not to be observed only at the end of the negotiations, when everything has already been agreed. Sunlight is the best disinfectant, according to outstanding US Supreme Court Justice, Louis Brandeis.