Even as the Public Procurement Commission grapples with insufficient money, space and staff, the body says Cabinet still has a legal right to offer its ‘no-objection’ to contracts, and there is a conflict between the law and the regulation about the Bid Protest Committee.
“The Commission is not empowered by the Constitution or the Act to grant no objection or to award contracts. The awarding of contracts is the responsibility of the Procuring Entities and the National Procurement and Tender Administration Board (NPTAB). These agencies are responsible for the public advertisements of contracts, evaluation of bids and ultimate approval and award of contracts,” the body said.
In a lengthy statement on the affairs facing that almost four-month old constitutional body, which temporarily operates out of Parliament Building, said there is a conflict between two sections of the Procurement Act. The Commission noted that Section 54 (1) of the Procurement Act empowers the Procurement Commission to annually review all procurements valued more than GYD$15 million aimed at increasing that figure to promote the goal of progressively phasing out Cabinet’s involvement and decentralising the procurement process. ”
“A literal interpretation of this section clearly indicates that the review role of Cabinet should continue even after the establishment of the PPC, with an annual review by the PPC of the threshold so that over time, by raising the threshold, the role of Cabinet would be eliminated.
However, Section 54 (6) of that Act states that “Cabinet’s involvement under this section shall cease upon the constitution of the Public Procurement Commission except in relation to those matters referred to it in subsection (1) which are pending.”
“A literal interpretation of this section directs the immediate cessation of Cabinet’s role once the PPC is constituted. Neither section, however, provides for the PPC to take over that function from Cabinet. The role of the PPC is limited to approving the format of the streamlined report to be sent to Cabinet and if all of section 54 (1) is to prevail, reviewing the threshold of the value of contracts to be reviewed by the Cabinet,” the Commission said in a statement.
Stressing that the Commission’s functions do not provide for a “no objection to contracts, the body suggested that if that was the case it could eventually find itself refereeing its own decisions. “Indeed, it is the view of the Commission that such a role would entrench the PPC as an integral part of the procurement process, which it is intended to monitor and regulate,” the Commission said.
The Procurement Commission says there are two other legal conflicts- one of them being about bidders protesting to the procuring entity if their tenders or proposals have been rejected, and later to the commission. Against that background, the Commission called for a “clarification and possible amendment” as the Procurement Act “unless revised, appear to run directly in conflict with the provisions of Articles 212AA. (1) (h) and (i) of the Constitution, which place the authority to investigate complaints from suppliers, contractors and public entities, as well as investigate cases of irregularity and mismanagement, with the PPC.”
Now that the Commission has been established, that body wants the Procurement Act and the regulations to be amended because, for example, Section 53 (6) of the Act states that the decision of the Bid Protest Committee shall be final and immediately binding upon the procuring entity and clause 13 (9) of the Regulations states that the award of the Bid Protest Committee shall not be open to administrative review.
“Until these apparent conflicts are resolved the Commission will be constrained from effectively carrying out its constitutional mandate,” the Commission added. “The provisions for the appointment and functioning of a Bid Protest Committee may have been appropriate prior to the establishment of the Public Procurement Commission. Now that the Commission is established, there is need for revision of both the provisions of the Act and the Regulations that deal directly with the appointment and functioning of the Bid Protest Committee.”
The Commissioners are Attorney-at-Law and Engineer, Emily Dodson; Caribbean Procurement Specialist Carol Corbin (Chairperson) ; Economist, Sukrishnalall Pasha; Ivor Burnette English and former Minister of Labour, Mr. Nanda Kishore Gopaul (Deputy Chairman).