We must run the full gamut to improve the procurement process – Nandlall
Jul 25, 2017 , http://www.kaieteurnewsonline....nt-process-nandlall/
By Abena Rockcliffe- Campbell
“If we are speaking about improving the procurement process in our country, we must run the full gamut,” said former Attorney General, Anil Nandlall. According to him, a key measure to be implemented is the setting up of an Appellate Tribunal. Why does Nandlall see the establishment of an Appellate Tribunal as so important? Because “the supreme law of the land (the Constitution) so prescribes.”
During an interview with Kaieteur News yesterday, Nandlall said that Article 212 EE of the Constitution stipulates that Parliament may, by law, provide for the establishment of a Public Procurement Commission Tribunal. He noted too that Article 212 BB of the Constitution provides that a decision of the Public Procurement Commission is appealable to the Tribunal and a decision of the Procurement Commission tribunal is appealable to the Guyana Court of Appeal.
“What we now have in existence, therefore, is merely one rung of the hierarchical ladder of the procurement process,” said Nandlall. The former Attorney General said that the Appellate Tribunal is another layer of protection for the procurement process.
He said that a law has to be enacted to bring the other Constitutional layers into force. “Naturally, this law will have to make rules and regulations in terms of how the different appeals are to be filed and all matters in relation thereto.”
Last week, Nandlall had spoken extensively to this newspaper about the weaknesses in the Procurement Act of 2003. He said that the Act needs to be strengthened, because, like any other law, it has loopholes that have become apparent over the years.
He did admit that the Act can benefit from improvement in the areas of securing the interest of the government, specifically as it relates to quality assurance. Nandlall said that penalties should be added to the Act for engineers who collude with contractors to shortchange the country.
However, Nandlall begged to differ in his opinion from Trinidadian Professor Afra Raymond who said that there seems to be “engineered loopholes” in the Act.
Professor Raymond is a Trinidadian expert who was a panelist on the recently concluded oil and gas symposium hosted by the Guyana Oil and Gas Association (GOGA) in collaboration with the Caribbean Institute of Forensic Accounting (CIFA).
Professor Raymond was critical of Guyana’s Procurement Act of 2003, which he said seemingly contains “engineered loopholes” in addition to antiquated provisions that allow for a situation to be taken advantage of by corrupt persons.”
According to Professor Raymond, the Procurement Act of 2003 allows Government to enter into government-to-government arrangements outside of the ambit of the procurement laws for international agreements. He said that this is a major loophole.
Speaking to the statement made about “engineered loopholes,” Nandlall responded, “As far as I can recall, the Procurement Act which was enacted in Guyana was, at the time, one of the most modern of the international models. It was the most modern in the Caribbean, and in many respects it still remains one of the more advanced legislation of its type in the Caribbean.”
He continued, “But that does not mean that (the Act) does not have loopholes, which with the passage of time, and experience are now apparent.”
Nandlall pointed out that no legislation is ever perfect. He said that one has to use experience and look at how the legislation has worked over a given period in order to identify shortcomings if any and take corrective measures. “But I do not subscribe to the view that there were engineered loopholes.”
“But certainly there are some loopholes that can be plugged.”
Pointing to one such hole, Nandlall said that consultants or engineers who are supposed to represent the government’s interest in projects, are sometimes found “wanting” in their assessment of work done.
Nandlall said that such eventualities lend to the view that there may be collusion between the engineer and the contractor.
“So you have substandard work being passed as meeting standard requirement or you have the engineer or consultant agreeing to grant variations to the contract. The variations may subsequently discover not to be in the best interest of the state whose interest the engineer should have been representing. That is one aspect of our procurement law that needs strengthening.”
The former Attorney General said that this can be addressed by imposing serious penalties on the contractors, consultants and persons functioning in those capacities.
Nandlall also spoke about aspects of the Procurement Act that speak to evaluators, and said that they need to be reviewed. This is so that more technically sound persons “and persons of sound integrity and independence can serve as evaluators. What we have are ordinary public servants, some of whom are not suitably qualified, functioning in those capacities.”
Nandlall pointed to the ambiguity in the Act with regard to Cabinet’s role in the procurement process when there is a functioning Public Procurement Commission (PPC).
He said that the provisions in the Act relating to this issue are currently left to interpretation. “That should be put to rest once and for all, because the intention obviously was to end Cabinet’s involvement upon the establishment of a procurement commission.”
