These are my preliminary views on these proposed amendments due to be debated by the Government on Friday 4th December 2020, with the principal question being how can the Act be lawfully amended. The Act was passed in January 2015 with a Special (three-fifths) majority in both Houses of Parliament, so is a Special majority required to make these amendments? My Hansard reading of both prior amendments – #5 of 2016 and #3 of 2017 – is that those required Opposition support.
There are conflicting views on the legality of amending this Act via a simple majority…according to “…House Leader Camille Robinson-Regis…the five bills will be introduced and be taken through all their stages.
“We’re assuming they will all pass. They are not anything difficult and they are all simple-majority bills.” (see Newsday ‘Procurement Bill for House‘ Wednesday 2nd December 2020).
It was also very concerning to read the Opposition Leader’s statement issued later that day, which was silent as to the proposed exclusion of Government to Government Agreements and Public Private Partnerships. This is a moment in national development which will require our utmost vigilance if the Public Interest is to prevail.
The proposed amendments are –
- S.4 – to redefine ‘bid-rigging’ as collusive acts designed to unfairly influence the outcome of a competitive tender process – this is an improvement over the current wording which refers only to proceedings;
- S.7 (2) to be amended by inserting a full-stop after the word ‘prevail’ and deleting all subsequent words – the impact of that would be to entirely remove Government to Government Agreements from the oversight of the OPR which would be extremely detrimental, given our poor track record in these G2Gs.
- S.7 to be further amended by inserting two new subsections – Ss (5) which will remove from OPR oversight any legal services; financial services; accounting or audit services; medical services; or any other services as determined by the Minister…Ss (6) to make those Ministerial determinations operative by a Negative Resolution. These proposed amendments are detrimental in two ways – firstly, it appears entirely likely that PPPs would be re-labelled as a form of ‘financial services’ and therefore beyond the scope of OPR oversight – secondly, there is an irreconcilable conflict in having an Act dedicated to proper oversight of ‘Transactions in Public Money’, which explicitly prevents oversight of financial services, the accounting and auditing of those or the legality of them…the legal, financial services and accounting/audit functions are central to sound principles of good governance, so how can we agree to place those issues ‘out of bounds’?
The revised S7 is embedded here with deletions in strikethrough and insertions highlighted for ease of reference –
- This Act applies to public bodies and public-private partnership arrangements.
- To the extent that this Act conflicts with an obligation of the State under or arising out of the following:
(a) a treaty or other form of agreement to which Trinidad and Tobago is a party with one or more States or entity within a State;
(b) an agreement entered into by the Government of Trinidad and Tobago with an international financing institution; or
(c) an agreement for technical or other cooperation between the Government of Trinidad and Tobago and the Government of a foreign State, the requirements of the treaty or agreement shall prevail.
except that the procurement of goods, works or services shall be governed by this Act and shall promote the socio-economic policies of Trinidad and Tobago and shall adhere to the objects of this Act.
- A procuring entity engaged in procurement proceedings relating to a treaty or agreement referred to in subsection (2)(a) shall comply with section 29 and submit a report on such compliance to the Office.
- The Office shall, within twenty-one days of receiving a report under subsection (3), forward a copy of the report to the Speaker of the House of Representatives who shall cause the report to be laid in Parliament at the earliest opportunity
- This Act shall not apply to the following services provided to public bodies or State-controlled enterprises
(a) legal services;
(b) financial services;
(c) accounting and auditing services;
(d) medical services; or
(e) such other services as the Minister may, by Order, determine.
- An Order under subsection (5) shall be subject to negative resolution of Parliament…“
I don’t have comments on the other proposed amendments.
Correction – Please note that the new HQ bldg I mention at the end of this video is for the Ministry of Health, not the Ministry of Education – sorry, but I mis-spoke!