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Understanding the constitutional requirement for establishing the Public Procurement Commission

by Lincoln Lewis

The constitution forms the bedrock to guide society in the laws needed to be developed to manage the nation’s affairs. There can be no law that will be considered legal if that law runs counter to the spirit and intent of the constitution. This society continues to run the risk of being victims of its own utterances and behaviour. For while the popular tendency is to advance arguments craftily positioned as being guided by the constitution at the same time this tendency is not borne out by positions informed by this instrument but more by the myths attributed to it.

 The issue of the Public Procurement Commission (PPC) cannot be understood in the absence of knowledge and understanding of the Constitution. It is important that everyone understands in arriving at any legislation all acts must be informed by this instrument. In seeking consensus the principles of the constitution remain sacrosanct.

 Article 212W (1) expressly states, “There shall be a Public Procurement Commission the purpose of which is to monitor public procurement and the procedures therefor in order to ensure that the procurement of goods, services and execution works are conducted in a fair, equitable, transparent competitive and cost effective manner according to law and such policy guidelines as may be determined by the National Assembly.” It is clear the final arbiter of the PPC’s performance is vested in the legislature, the nation’s highest decision-making forum.

 Article 212AA addresses the Functions of the PPC. 212AA (1) (f) states “monitor and review all legislation, policies and measures for compliance with the objects and matters under its purview and report the need for any legislation to the National Assembly.” In this society many of the policies are conceptualised, developed and driven by the Executive/Cabinet. If the PPC is mandated to “monitor and review all …policies” the demands by the policymakers to be given no-objection in awarding contracts when their policies will be under scrutiny by this body is to structurally put systems in place the undermine the works of the commission. 

 And this brings us to the Attorney General’s argument for cabinet no-objection role in the PPC Act. According to him, “The nucleus of the executive is the Cabinet. This responsibility is captured by Article 106 (2) of the Constitution which states: ‘The cabinet shall aid and advise the President in the general direction and control of the Government of Guyana and shall be collectively responsible therefore to Parliament.” This is a treacherous misuse of this article to advance a position that has no basis relating to the PPC. Article 212W (2) expressly states “The commission shall be independent.” 

 Article 212AA (1) (g) states, “monitor and review the procurement procedures of the ministerial, regional, and national procurement entities as well as those of project execution units;” The mandate of the PPC is wide and far reaching as an institution that will put systems in place regarding the management of State contracts across this country on the people’s behalf.  By constitution the commission reports to the National Assembly and its work cannot be administratively hindered outside of stipulated constitutional requirements.

 Further, Article 212BB (1) says “A decision of the Commission is subject to an appeal to the Tribunal established under Article 212EE.”  212BB (2) states “A decision of the Tribunal is subject to an appeal to the Court of Appeal.” The Constitution is informing us that the commission must be buttressed by mechanisms to address grievance or concern. Any citizen, organisation or entity can seek recourse through the Tribunal and in instance of dissatisfaction then to the Court of Appeal.

 The establishment of the commission consistent with the constitution offers this country an opportunity for transparency and good governance. The Cabinet, like any citizen or group constitutionally has the right to recourse. It is over important the way forward must see us as a nation upholding the principles, tenets and intent of this instrument as we pursue a process of making sure our engagements and decisions are focused on moving the process forward for full implementation rather than engaging in actions to appease group/individual at the expense of this sacred instrument.