The AG’s Press Conference of Monday 21st December 2020 was an attempt to control the government’s critics, while also promoting the notion that the issues arising from the amendment of the Public Procurement and Disposal of Public Property Act (The Act) are poorly understood by everyone outside the Cabinet. The AG strongly criticised both me and Opposition spokesman, Senator Wade Mark. This had me wondering at both my company and the AG’s opening declaration that what was needed was ‘a studied analysis which is factual and truthful’. Well I tell you.

This article will place in context the recent, damaging changes and rebut those extremely misleading claims.

My essential point is that full implementation of The Act, unduly delayed, is now seriously compromised by the latest amendments. These changes comprise serious exclusions which now place our patrimony in far greater risk.

I will outline the main points so that readers can decide on the validity of the AG’s criticisms. After all, a studied analysis which is factual and truthful is sometimes the only way to make-out fabricators and the existential threat such people pose to our development.

Government to Government Agreements (G2G) and Public Private Partnerships (PPP)

The recent amendments to The Act exclude both G2G and PPP from OPR oversight. The purpose of The Act is to provide oversight to all State contracts. Those exclusions are inimical to the public interest since those are the two largest types of contracts for construction or supplies funded by Public Money.

In the case of PPPs, the AG cited S.7 (1) of The Act which specifically states that those are included in the Act. Apart from my own assertion that the ‘financial services’ exclusion in the newly-inserted S.7 (5) would likely be used to exclude PPPs, the Law Association’s formal statement identified a clear rationale for another ground on which PPPs could be excluded. The AG was noticeably silent as to the formal analysis of his own professional association.

The AG at his press conference, and the Finance Minister, speaking in the Parliamentary debate of 4 December 2020, both cited other countries which excluded G2G in support of the proposed changes. But just when and where did the motive for these changes arise? Here is the Finance Minister speaking on this point, in the 2020 budget statement, delivered on 7 October 2019 –

“…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…” (pg 8)

Colm Imbert, Budget Statement 2020. 7 October 2019.

The truthful and factual position is that on 7 October 2019, the government accepted the OPR’s position that both PPP and G2G arrangements must be fully overseen by The Act. So what changed in the last 14 months?

Exclusion of Services

The insertion of S.7 (5) creates exemptions for these services provided to ‘public bodies or state-owned enterprises’ –

• (a) legal services;
• (b) debt financing services for the national budget;
• (c) accounting and auditing services;
• (d) medical emergency or other scheduled medical services; or
• (e) such other services as the Minister may, by Order, determine.

Legal and accounting/auditing services are essential to govern transactions in Public Money as required by The Act, so how does one justify excluding those from OPR oversight?

What is more, the legal services arena is alive with controversy from the allegations of Billion-dollar fraud, now before the Courts, in which former AG Anand Ramlogan SC and Gerald Ramdeen are charged. During my 2018 litigation, to obtain the Tobago Sandals MoU under the Freedom of Information Act, the State spent six times more legal fees, only for Deborah Peake SC to concede access to the MOU in the very first hearing. She spent less than 30 seconds on her feet. So, $545,000 of Public Money was spent in futile attempts to conceal a document which was supposedly ‘no secret’.

Finally, we are all in the grip of the COVID-19 pandemic for which vaccines must be acquired, at the very moment that medical emergency supplies are now lawfully declared to be exempt from independent oversight. Well Yes.

The State of the OPR’s readiness

The AG also made strong criticisms of those who claimed that the new OPR arrangements were ready and being unduly delayed.

I can do no better than cite this passage from the JCC’s welcome and clear statement on 22nd December 2020 –

“…The AG should clarify for the public why the well-informed and well-intentioned honourable Prime Minister, Dr. Keith Rowley stated to the media on Sept 29th, 2020 that ‘In a few weeks after the Budget debate, procurement legislation will be implemented’. Was the PM also, to quote the AG, ‘oversimplifying the process’? The Prime Minister created an expectation in the public space that there would be the implementation of this legislation which, from many clamoring quarters appears to be eagerly anticipated and extremely long overdue. Three months since the PM’s Procurement Promise, we have the AG disabusing ‘the concept that simple passage of the regulations can achieve the full functionality of the Public Procurement law’…”

From JCC statement on Public Procurement Amendments of 22 December 2020

Constitutional concerns

In part two of this series, I argued that these amendments created an unconstitutional infringement on our right to equality of treatment, but the AG was also silent on that.

Conclusion

Intellectual Bankruptcy is the utter inability to defend ones position, in this case made all the more pronounced by the fact that all the resources of the State and its allies are at the disposal of the government.

It is striking how the procedures of Parliament, which require a debate on proposed laws, force a juxtaposition of form and content, such that the form of the debate can disclose the lack of content supporting the proposals.