The AFC’s proposals are no compromise

February 23, 2014, By KNews, Filed Under Features/Columnists, Peeping Tom, Source

The so-called compromise that is being proposed by the Alliance For Change (AFC) in relation to the National Procurement Commission represents a political cul-de-sac.

The proposal by the AFC does not represent any meaningful progress over what presently exists and will set a dangerous precedent by entrusting to a Commission powers to review awards, powers which are not contemplated either by the principal Act or by the Constitution of Guyana.

The gist of what the AFC is proposing is as follows. The AFC will yield to the government’s demand for a right to object to awards by the National Tender Board and Procurement Commission, but this objection will have to be time-bound, and any review of the objection will have to be undertaken by the National Procurement Commission.

Before the AFC gives its consent to the Anti-Money Laundering and Countering the Financing of Terrorism Bill which the government desperately wants to pass, the AFC desires the government to first establish the Public Procurement Commission.

The government, in turn, insists that there is a contradiction in the existing law concerning the right of Cabinet to offer a no-objection. The government is insisting that this right be retained.

The AFC had previously held firm to the position that the government should have no right to object to an award by the National Procurement and Tender Administration Board. It is now considering a compromise whereby it will allow this right, but is insisting that the Public Procurement Commission be allowed to review any no-objection made by Cabinet.

In effect, what the AFC is proposing to do is to grant the powers of review, presently vested by law in the National Procurement and Tender Administration Board, to the Commission.

This creates two sets of problems. Firstly, it removes and obviates the administrative review by the National Tender Board. This is highly irregular. Any administrative entity should first have the opportunity to correct any mistake that it may have made, including mistakes that may have been induced by corruption. Only when the National Procurement and Tender Administration Board has had the opportunity to correct any award, should any higher authority be allowed to review the matter.

Secondly, this higher authority, it is respectfully submitted, cannot be the Commission. The Constitution of Guyana itself vests in the Commission monitoring, educational and oversight functions. The Commission can investigate complaints, but the Constitution is specific that the Commission can only make recommendations and propose remedial action.

The Constitution speaks at article 212 BB about establishing a tribunal to review decisions of the Commission. But just what decisions the Commission is empowered to make is not that clear, since the very Constitution details its functions, and these include investigating complaints and investigating cases of irregularity.

In both of these instances, the Constitution prescribes that the Commission makes or proposes recommendations. These functions render silent Article 212 BB, which speaks to the need for a review of decisions of the tribunal.

There is obviously some tidying up that needs to be done here.

By proposing to vest by legislation, not by a Constitutional amendment, the power to review objections to awards, and by removing such awards from the purview of the National Procurement and Tender Administration Board, the AFC is in effect creating a legislative anomaly. It will in effect be moving the power of review of awards from the National Tender Board to the Commission and this is not something contemplated by our Constitution.

But more fundamentally, it sets a dangerous precedent by vesting in a Commission – which is empowered by the Constitution to monitor and review procurement policies, procedures and processes – powers to review objections to awards. If the Commission can now adjudicate on objections, this conflicts with its role as an oversight and monitoring body, because it surely cannot monitor its own decisions.

It is difficult to fathom why there is so much difficulty in appreciating a basic concept, to wit, that commissions cannot perform certain functions. But then again, if a fundamental precept of constitutional rule such as the separation of powers is posing so much difficulty for the opposition parties, it may not be that hard to appreciate why the AFC sees nothing wrong with vesting in the Public Procurement Commission, the power to review awards and to make these binding.

The AFC wants the Public Procurement Commission established before its gives its consent to the Anti-Money Laundering and Countering the Financing of Terrorism Bill. However, that is easier said than done. It requires a two-thirds majority of parliament to be approved.

Reaching such consensus will be extremely difficult, if not impossible. Yet the AFC insists on the appointment of the Commission as a condition of the Bill. And it calls this near impossibility compromise.