Public Procurement Collapse, Part Two

The previous article explained that our Parliament reduced independent oversight of the biggest contracts in our country. But all the power is not in Parliament, so it is important to note that civil society has substantial power and influence in these public policy matters.

For example, take the June 2019 attempt by the government to effectively erode citizens’ right to information held by Public Authorities, by amending the Freedom of Information Act (FoIA). On 7 June 2019, Attorney General Faris Al-Rawi, laid proposals in Parliament to extend the existing 30-day time limit for Public Authorities to respond to FoIA requests to 180 days. The 30-day time limit is regularly exceeded by Public Authorities, so the proposed extension would have made nonsense of citizens’ right to information.

Ramesh Lawrence Maharaj, SC. Photo Abraham Diaz

Those of us committed to those rights to information took up the challenge by alerting the public to the perils, led by the Media Association of T&T (MATT) under Dr. Sheila Rampersad’s direction. Our brief, intense campaign culminated in MATT’s overflowing seminar on Saturday 15th June 2019 at Hotel Normandie, with Ramesh Lawrence Maharaj. SC being the powerful and persuasive lead speaker.

The AG withdrew the proposals ‘for further consultation’ and no more was heard on that count. This demonstrates that it is possible, by concerted, focused and informed agitation, to stop detrimental public policies.

Our history is replete with these important lessons. It is important to understand how these changes arise.

  • 1961

    The 1961 Central Tenders Board Act surfaced from the political directorate1, so there was an appetite for good standards of governance which accorded with the then-popular slogan ‘Morality in Public Affairs’.

  • 2010

    In complete contrast, the current Act was conceived and drafted by Civil Society and Private Sector groups2, which participated in the working party on Public Procurement appointed by former PM, the late Patrick Manning, in the wake of the Piarco Airport scandal and the shocking revelations of the Bernard Commission of Enquiry. On 22 December 2010, JCC submitted a complete draft Public Procurement & Disposal of Public Property Bill to the Joint Select Committee of Parliament established by the PP government to examine this issue.

  • 2015

    After four years of intense lobbying, both by JCC and the wider Private Sector Civil Society Group3 on Public Procurement, that draft bill became The Act, passed in January 2015 as Act No 1 of that year.

  • 2018 – present

    The OPR Board was appointed in January 2018, with The Act then being partially proclaimed thereby allowing its operation. That Board has spent three busy years to prepare the OPR to take proper oversight of the multitude of public procurement and disposal contracts in the public sector. The OPR has been ready to conduct all its functions since December 2019.

The Act is what is termed framework legislation. The OPR prepares the required Regulations, which must be approved by Parliament before The Act can be fully proclaimed.

This intervening stage was one of maximum peril because the Minister of Finance has to lay the Regulations in Parliament and, of course, there could be further amendments4. In light of the PNM’s well-established hostility to this kind of independent oversight, there was every case for the PSCSG to have maintained a strong, constant and diverse campaign to make the public aware of just how high were the stakes.

Public Sector/Civil Society Group (PSCSG)

Given my resignation as JCC President in November 2015, it is impossible to know what were the causes of the PSCSG failure, but that campaign never materialised. There were only few and sporadic public engagements from the PSCSG in the five-year period 2016 to 2020. My erstwhile PSCSG colleagues were fully capable of effectively campaigning, but, in the end, made only sporadic, last-ditch, and ultimately futile, attempts to shape the public perception of this critical issue.

Educated and conscious people are able to identify, defend and advance their interests, which our groups failed to do. That failure raises pointed and painful questions as to our real priorities and intentions.

The Constitutional issues

The Act was passed by special three-fifths majority, which was required since certain fundamental rights were to be infringed. I am advised that these subsequent amendments via simple majority are lawful if the outcome is reduction in the scope of, or powers derived from, the original special majority Act.

While these amendments do reduce OPR oversight, in so doing they are also giving rise to an imminent breach of citizens’ constitutional rights. Local contractors or suppliers, not engaging in PPP, will be required to follow The Act under OPR oversight. Finance Minister Imbert and his colleagues stated that they do not want G2G to be under OPR oversight.

According to S. 4 (d) of our Constitution, one of the ‘Rights Enshrined’ is –

…the right of the individual to equality of treatment from any public authority in the exercise of any functions…

Parliament has now amended The Act to establish this non-OPR Public Procurement channel, through which huge contracts could be expected to arise. Apart from that amendment doing violence to the intention of The Act, it also gives rise to an arguable case for ‘inequality of treatment from a public authority in the exercise of its functions’, which is of course, unconstitutional.

Clearly, these amendments to The Act require a special majority as they infringe upon the Rights Enshrined at S.4 of our Constitution.


Sources:
  1. Eric Williams, Inward Hunger (London: Andre Deutsch, 1969), 250.
  2. Principally, the Joint Consultative Council for the Construction Industry (JCC) and the T&T Transparency Institute (TTTI).
  3. The PSCSG comprised JCC; the T&T Chamber of Industry and Commerce; the T&T Manufacturers’ Association; the TTTI; the Federation of Independent Trade Unions and NGOs (FITUN); the American Chamber of Commerce and The Local Content Chamber.
  4. The Act was amended twice previously, by Acts #5 of 2016 and #3 of 2017 – I do not consider those amendments to have been harmful.

6 thoughts on “Public Procurement Collapse, Part Two

  1. I disagree with one comment from Afra that the amendments of 2016 and 2017 were not harmful to the parent legislation. The substantive effect of the previous amendments sought to reduce the salary recommended by the Salaries Review Committee by almost half and as argued convincingly by independent senator Small would effectively reduce the availability of the best candidates for the job; and the effect of the other amendment to put in a non functional Procurement Review Board was to put in place a costly duplication of a function available under the Judicial Review Act and to stymie the full proclamation of the parent legislation.
    The Current amendments to Section 7 is in keeping with this trend even before the full operationalisation of the Act and in keeping with the lack of transparent governance of public money.

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