Secondly, what is the likely outcome from these fundamental reductions in the OPR’s scope?
The first question really intrigued me. After all, if the current situation is one in which Public Procurement is loosely controlled, why would any government risk serious criticism by amending a law which has been delayed for so long?
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.
Afra Raymond is interviewed by Kiel Taklalsingh and Stefan Ramkissoon on The Section One show on TV Jaagriti on Sunday, 13 December 2020 on the amendments to the Public Procurement law. Video courtesy TV Jaagriti
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.
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.
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.
Afra Raymond appears on WESN’s current affairs programme “Long Story Short” on Saturday 5th December 2020 for an interview with Kejan Haynes on to discuss the contentious amendments to the Public Procurement & Disposal of Public Property Act of Trinidad and Tobago. Video courtesy WESN
Afra Raymond’s interview on TV6 on The Morning Edition with Fazeer Mohammed on the amendments to the Public Procurement & Disposal of Public Property Act in Trinidad and Tobago. Video courtesy CCN TV6
The Amendments to the Procurement Legislation were passed in the lower House on Friday without the support of the Opposition United National Congress, and will e debated in the Upper House today. Prior to the debate, various Civil Society Groups and Business organizations have voiced concerns regarding particular elements to the amendments. We got another view in, Afra Raymond- Past President of the Joint Consultative Council for the Construction Industry.
This is my interview on the Power Breakfast Show on Power 102.1 FM with Paul Richards and Wendell Stephen on the proposed amendments to the Public Procurement & Disposal of Public Property Act. Audio courtesy Power 102 FM
Programme Length: 00:18:54
Programme Date: 4 December 2020
Interview on Power Breakfast Show on Procurement amendments
This is my interview earlier today with Gerard Small and Robert Amar on 104.7FM MORE FM on the proposed changes to the Public Procurement & Disposal of Public Property Act. I also commented on my concerns with respect to the position of the Opposition UNC. Audio courtesy 104.7 MORE FM
Programme Length: 00:21:01
Programme Date: 3 December 2020
Interview with Gerard Small and Robert Amar on 104.7 MORE FM
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 – “Section 7.
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!