On Friday 4 December 2020 our Parliament passed the third set of amendments to the Public Procurement and Disposal of Public Property Act (The Act). These changes are a serious blow to the long-term campaign for proper control over transactions in Public Money and are extremely detrimental to the public interest. Government to Government Arrangements (G2G), Public Private Partnerships and a range of professional/financial services have been excluded from the oversight of the Office of Procurement Regulation (OPR).
Our elected representatives proposed to our Parliament that the biggest contracts executed with Public Money were better administered without independent oversight as intended in The Act, passed as Act No 1 of 2015.
An interviewer asked me if these loopholes were likely to be detrimental and I had to clarify that “loopholes” is the wrong word, since those arise only by error or inattention. On the contrary, these changes to The Act were intentional. These changes were designed and built so that they would be fit for purpose – i.e. removing the biggest contracts and transactions in Public Money from proper oversight.
The G2G removal was plainly stated as the government’s intention, but that amendment to S.7 (2) of The Act also, arguably, allows PPPs to escape OPR oversight. The Law Association’s statement of 8th December 2020, at para 17, makes the important point that an ‘entity within a State’ could be construed as a T&T company, given that The Act does not specify that the ‘State’ referred to is a foreign State. Despite the varied views, I am maintaining my initial view that these amendments also removed PPPs from OPR oversight.
It is ironic that PM Rowley rose to prominence due to his strident complaints, as a sitting Minister in the Manning government, against the terms of the huge G2G projects and other improper conduct within UDeCOTT. This requires that we must consider the arguments used to propose these damaging changes and of course, the responses of the Opposition.
Finance Minister Imbert cited the EU/OECD rules on G2G exemptions as justification for omitting those from OPR oversight. That is a misleading, damaging comparison as the EU comprises advanced economies, functioning at a similar scale and jointly bound by EU law. It is understandable that those countries could agree that ‘public-public agreements’ could exist outside of national procurement laws. In our case, we were being asked to accept that a similar approach was advisable in our dealings with countries many times our size who sit in the same framework economic of regulations. The comparison is simply untenable, yet that challenge was never made by the Opposition.
Dr. Rowley spoke to the acquisition of the Australian boats under a G2G as being a sound deal which properly served the public interest. The PM went further to make sharp criticisms of the Opposition, based on various allegations arising from their conduct when previously in government. Even if one accepts both those assertions as entirely factual, there are severe weaknesses in the PM’s argument. If the PNM Administration is committed to making good G2G deals in the public interest, there can be no serious objection from that party to a proper system of independent oversight. Further, if the Opposition is indeed untrustworthy in these matters, why not put a proper system of independent oversight into place, so that they could be controlled whenever they return to office? Given the sheer weakness of the PM’s arguments, it was striking that not one Opposition speaker even mentioned those points.
The removal of legal, accounting/auditing, medical fees and financial services from OPR oversight was risible when one considers the strong and repeated statements as to concerns over the alleged legal fees scandals. I smiled at recent reports of the DPP taking the case based on charges of legal fees fraud amounting to a reported $1.0 Billion against former AG Anand Ramlogan SC and Gerald Ramdeen directly to the High Court, with our government having voted the week before that such fees do not need independent oversight. The over-stated concerns as to speed and efficiency could have been address by approval limits for ‘Procuring Entities’, with an obligation to make quarterly reports to the OPR. Once again, it was remarkable that the Opposition was unable (or was it merely unwilling?) to make these points or advance any counter-proposals. Well I tell you.
The current debacle, in which a PNM government has effectively crippled our independent oversight agency, is merely the latest chapter in that party’s long-term and deep hostility to any such oversight. No one who has been paying attention can pretend to be surprised – that 1961 to 2020 history is detailed in The Accountability Arc, which I published in January 2020.
The Act was developed and lobbied for by patriotic and vibrant groups and individuals from the Private Sector Civil Society Group (PSCSG), under the continuing Chairmanship of the veteran campaigner, Winston Riley. The decisive actions of that collective, and later, their tragic failure to act, are the subject of my next article, together with what I consider to be a fundamental constitutional consideration.