Public Procurement collapse, Part Four

So, the campaign to save the Public Procurement and Disposal of Public Property Act (The Act) failed. The government achieved its objective of greatly reducing the oversight of the Office of Procurement Regulation (OPR). This is the final article in this series — I, II and III — so I pose two important questions arising from that failed campaign.

  1. Firstly, why did all this happen now?
  2. 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?

Continue reading “Public Procurement collapse, Part Four”

AUDIO: Interview on Power Breakfast Show on Procurement Act amendments – 4 Dec 2020

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

AUDIO: Interview on 104.7 MORE FM on Public Procurement reform

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

VIDEO: Preliminary views on the proposed amendments to the Public Procurement and Disposal of Public Property Act

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.

  1. This Act applies to public bodies and public-private partnership arrangements.
  2. 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.
  3. 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.
  4. 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
  5. 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.
  6. 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!

Public Procurement Delays – the tangled web

This series ends by examining the last five years in relation to the implementation of the Public Procurement and Disposal of Public Property Act, No 1 of 2015 (The Act). This is my final article before I pause for a shift in focus and again, I am drawing on the public record for these positions.

My previous article traced the accountability arc of attempts by PNM governments to dilute our country’s accountability framework. That arc is rooted in the record, serving to dismantle the fanciful tales about ‘morality in public affairs’ and so on. According to Dr. Rowley – “Facts are stubborn things.”

MinFin-Colm-Imbert
Min of Finance, Colm Imbert, MP

Colm Imbert has served as Finance Minister since PNM’s general election win in September 2015. The provisions of S.7 of The Act, which apply to Government to Government Agreements (G2G) and Public Private Partnerships (PPP) have remained the same over that entire period.

The OPR Board was appointed in January 2018 by then President Anthony Carmona, as his final official act, so it was impossible to implement the new system before that.

Consider the budget statements over the five-year period 2016 to 2020.
Continue reading “Public Procurement Delays – the tangled web”

The Accountability Arc

inward hunger“…As Minister of Finance I was very much concerned with the decision to introduce a Central Tenders Board and take away the power to award tenders from elected representatives of local government bodies who enjoyed the privilege under existing legislation.  That unsound arrangement, bad in principle, was further vitiated by the tendency of local government councillors not to award tenders to the lowest bidder….”

— Dr. Eric Williams, Inward Hunger: The Education of a Prime Minister. (London: André Deutsch, 1969), pg 250.

This week I juxtapose the delays in implementing the Public Procurement system and the intended amendments declared by Finance Minister Imbert, against the history, so that the wider issue can be understood.  Minister Imbert is no outlier, he can be  located as the current manifestation of the PNM’s deep and historic unease with modern arrangements for Accountability.

ctb-ordThe establishment of the Central Tenders Board in 1961 was a high-water mark set by the first PNM administration in the ongoing struggle to ensure ‘morality in Public Affairs’.  Since that 1961 Act, which took five years to implement, there has been a push against those legal provisions by successive PNM administrations, uneven and not always successful, but always in the same dismantling direction.

One needs to excavate actual episodes, so that the accountability arc can be seen, beyond the smoke and mirrors. Continue reading “The Accountability Arc”

Public Procurement Delays: the PPP aspect

This continues my series — Part 1 and Part 2 — on the unexplained and unacceptable delays in implementing the new Public Procurement system.  Those delays arise from the failure or refusal of the Finance Minister to settle the Regulations which are essential for the Office of Procurement Regulation (OPR) to be fully operationalised.

Despite his firm commitment on 22 February 2019 –

“…I remain committed to attaining full implementation of the Act in the shortest possible time and the Ministry of Finance will continue to work assiduously towards that goal…”

Continue reading “Public Procurement Delays: the PPP aspect”

Public Procurement Delays

This article will appear on New Year’s Day – 1 January 2020 – and it is a direct criticism of the Trinidad & Tobago government’s unexplained delays in the full implementation of the new Public Procurement and Disposal of Public Property Act (the Act).  In my view those delays are unacceptable and a serious cause for public concern.

On 23 November 2018, the Finance and Legal Affairs Joint Select Committee of Parliament, took evidence on the matter of The Implementation of the New Public Procurement System.

That JSC, under the Chairmanship of Independent Senator, Sophia Chote SC, heard from the Office of Procurement Regulation (OPR) and the Ministries of Finance and Public Administration. That JSC Report of 6 May 2019 gives a detailed and encouraging account of the steps being taken to bring this law into full effect.  Sad to say, but at page 23 of that Report we are told that – Continue reading “Public Procurement Delays”

Property Matters – The Curepe Interchange

 

“…There is a temptation to let the lying dogs sleep…”
Sikka, Premm. “HMRC is in thrall to big business. It can no longer do its job.” The Guardian. 8 September 2016

“The Upholder is worse than the Thief”
—from the defunct Trinidad & Tobago value system, decades ago…

The reported statements of the PM and Minister Sinanan on this cost reduction of about $300M achieved for the Curepe Interchange project and the alleged role of corrupt engineers in that process are ones I welcome. Any savings of scarce Public Money are to be welcomed, whatever the political administration. That said, those recent statements are necessary but not sufficient.

These points are here to set the table –
Continue reading “Property Matters – The Curepe Interchange”