Public Procurement Delays – the tangled web

This series ends by examining the last five years in relation to the implementation of the Public Procurement and Disposal of Public Property Act, No 1 of 2015 (The Act). This is my final article before I pause for a shift in focus and again, I am drawing on the public record for these positions.

My previous article traced the accountability arc of attempts by PNM governments to dilute our country’s accountability framework. That arc is rooted in the record, serving to dismantle the fanciful tales about ‘morality in public affairs’ and so on. According to Dr. Rowley – “Facts are stubborn things.”

MinFin-Colm-Imbert
Min of Finance, Colm Imbert, MP

Colm Imbert has served as Finance Minister since PNM’s general election win in September 2015. The provisions of S.7 of The Act, which apply to Government to Government Agreements (G2G) and Public Private Partnerships (PPP) have remained the same over that entire period.

The OPR Board was appointed in January 2018 by then President Anthony Carmona, as his final official act, so it was impossible to implement the new system before that.

Consider the budget statements over the five-year period 2016 to 2020.

  1. 2016

    “…We are already in the process of conducting a review of the existing legislation, and we will table the appropriate amendments and operationalise the new procurement agency in the shortest possible time…”

    —2016 Budget Statement (pg. 24. Click to read full transcript) – 5 October 2015

    No particular problems were identified and there was clear commitment to proceed promptly.

  2. 2017

    “…Dealing with accountability, I wish to announce that it is the government’s intention to fully operationalise the new public procurement system in 2017…”

    —2017 Budget Statement (pg. 7. Click to read full transcript) – 30 September 2016

    Again, no particular problems were identified and there was clear commitment to proceed promptly.

  3. 2018

    “…Madam Speaker, immediately upon our assumption of office and consistent with the commitment in our Manifesto, we moved rapidly to improve the procurement framework as established in the Public Procurement and Disposal of Public Property Act No. 15 (sic) of 2015. Through two major amendments – Act No. 5 of 2016 and Act No. 3 of 2016 (sic) – we are now assured that procurement transactions will meet the best practice and highest standards of governance…Accordingly, we envisage that by early 2018 the legislation will be operational…”

    —2018 Budget Statement (pg. 25. Click to read full transcript) – 2 October 2017

    The Amendment is actually No. 3 of 2017, which reduced the term of office for the OPR Board from seven to five years. Act No. 3 of 2016 dealt with Bond issues and has no bearing on procurement, so that was included in error. Act No. 5 of 2016 amended The Act in three significant ways – S.12 was extended to outlaw self-trading; S.51 created a Review Board, to be chaired by a retired judge, for decisions of the OPR; S.57 created arrangements for regulations on sales of State Lands.

  4. 2019

    “…Madam Speaker, the Procurement Regulator has been actively building capacity within the Office of Procurement Regulation. I am advised that staffing and training is in progress, and barring unforeseen circumstances, the new procurement regime utilizing best practice could be in place in the first quarter of calendar 2019…”

    —2019 Budget Statement (pg. 10. Click to read full transcript) – 1 October 2018

    Again, no particular problems were identified and there was clear commitment to proceed promptly.

    “…The OPR undertook a comprehensive review of the comments submitted by the Ministry of Finance and external Senior Counsel and reverted to the Ministry of Finance at the end of March 2019, having treated with most of the issues raised. Detailed comments on the redrafted regulations will be submitted by the Ministry of Finance to the Procurement Regulator in the next few days…”

    —2019 Mid-year Budget Review (pgs. 23-24. Click to read full transcript) – 13 May 2019

  5. 2020

    …Further, we have received recommendations from the Regulator regarding the appropriate treatment of public-private-partnerships and Government-to-Government arrangements, which we intend to adopt. Accordingly, with the soon-to-be proclaimed sections of the Procurement Act and the issuance of the associated Regulations, with an appropriate six (6) months transition period, as requested by the Regulator, we expect to be in a position to fully implement the new procurement arrangements in 2020…”  (emphasis is mine)

    —2020 Budget Statement (pg. 8. Click to read full transcript) – 7 October 2019

    So the government accepted the OPR’s position on the PPP and G2G arrangements on 7 October 2019.   What is more, the OPR position on these two important procurement approaches has been the same since 2 September 2019. Yet an alarm is now being raised, with the controls on G2G and PPP now being said to be too strong, those have to be loosened and amendments are to be taken to Parliament in February 2020. This shift is literally unbelievable, but we have to deal with it.

So what are the proposed amendments? For how long has the Finance Ministry and indeed the Cabinet had these doubts/misgivings/counter-proposals/proposed amendments? If for some period of time, why has the Finance Ministry not circulated those widely so as to have proper stakeholder input? If these concerns arose recently, I am certainly curious as to what could have sparked those.

The danger is in us accepting the Minister’s continuing vagueness on these proposed amendments, with the upcoming carnival season masking some dirty deed. It wouldn’t be the first time, so these proposed amendments need to be published now for stakeholder input.

We also need to be aware of the dangers of allowing political loyalty to eclipse good sense. I am referring to the danger that some significant number of people, supportive of PNM and its leadership, could relax their vigilance on this point without considering that once this becomes law, it will be untenable to protest if another party is in power and takes advantage of the reduced controls over these huge G2G and PPP deals.

This is the kind of needless confusion, arising from Minister Imbert’s published (and broadcasted) statements, which is ambiguous to say the least and needs to be clarified. Hence my title and epigraph.

One thought on “Public Procurement Delays – the tangled web

  1. I am truly amazed at the persistent recurrence of our misplaced faith and trust in our leaders over the past four decades. Ambivalence, condemnatory iteration and rabidly conscious omissions have been the recorded characteristics that are identified in the press, the media and now on social websites with varying degrees of fact and myth. Rumours pan out and are sometimes authentic, but with the constant repetition of blatant lies by our leaders at all levels, where can truth be found? Broke and broken underpin the names, adjectives and actions of today at every level. We live negatively and we are taught through canvassing, advertisements and education that wrong is right. Continuing vagueness, untenable confusion, masking some dirty deed and allowing political loyalty to eclipse good sense are Afra’s descriptions of policy creation by avoidance, and he ends ends with the ultimate, “it will be untenable to protest” that prophesies our demise.

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