‘Dangerous to the extreme!’ MSJ points to ‘disturbing’ amendments proposed for Public Procurement Act

“[…] The proposal to amend the act by making the procurement by ‘public bodies or state-controlled enterprises of legal services; financial services; accounting and audit services; medical services; or such other services as the minister may, by order, determine […] subject to negative resolution of Parliament’ exempt from the requirements of the Public Procurement law, is dangerous in the extreme…”

The following press statement on the government’s proposed amendments to the Public Procurement Act was submitted by the Movement for Social Justice (MSJ):

The Movement for Social Justice (MSJ) has consistently demanded that the country has strong public procurement legislation. This is vitally important so as to ensure that:

• taxpayers’ monies are not being wasted;
• the country gets value for every tax dollar spent on the purchase of goods and services by the government and state enterprises;
• corrupt practices such a bid-rigging and bribery are eliminated;
• make it difficult for nepotism; favouritism of family, friends and party financiers to occur;
• state-owned assets are not sold off at bargain basement prices; among other negatives.

After more than a decade of public pressure, in January 2015, the Public Procurement Act was passed but was not implemented by the then UNC/PP government. Instead of immediately having the act proclaimed after it won the 2015 elections—so it could be implemented—the PNM government decided to amend the act that they had voted for in January 2015.

The PNM then brought amendments to the Parliament not once, but twice. The first amendment was laid in Parliament in November 2015 and passed in June 2016; then six months later in December 2016 the PNM government came with another amendment which was passed in March 2017.

More than three and a half years later, the act has only been partially implemented. The Office of the Regulator has been established and regulations on how all government ministries, statutory authorities and state enterprises are to procure goods and services and dispose of assets have been drafted, but these have not been laid in Parliament and approved, so the regulator is toothless.

Instead of having the act fully proclaimed and implemented, the PNM government has now introduced a bill in the Parliament to further amend the act that has been passed and twice amended. This bill is to be debated by the House of Representatives tomorrow – Friday.

Firstly, we are extremely disturbed that the minister has not yet laid the regulations in Parliament. Without regulations, the regulator cannot regulate! The MSJ calls on the PNM government to immediately lay the regulations in Parliament for approval.

Secondly, the MSJ has very carefully studied the bill to be debated and has very serious concerns which we address to both the PNM government and the UNC opposition. These are:

1. Whether the amendments require a special majority, given that both the original act itself (and we understand the two amending acts) was passed with special majorities. The bill that is to be debated tomorrow and which seeks to amend the act does not indicate that a special majority is required. Out of an abundance of caution we recommend that it be passed by a special majority.

2. The proposal to amend the act by making the procurement by ‘public bodies or state-controlled enterprises of legal services; financial services; accounting and audit services; medical services; or such other services as the minister may, by order, determine […] subject to negative resolution of Parliament’ exempt from the requirements of the Public Procurement law, is dangerous in the extreme.

We must recall that in one case a senior attorney pleaded guilty before the courts to being improperly paid. The state itself and state companies hire accounting, audit and legal services at huge costs and we must ensure that there is proper procurement. There is also the possibility that the now popular ‘public-private partnerships’ (eg construction projects of a build-operate-lease-transfer) could be classified as a ‘financial service’ and made exempt from the act.

The MSJ strongly opposes this amendment and calls on the PNM government to withdraw it.

3. The proposal to amend the act by removing the requirement of government to government procurement and procurement done between the TT government and international institutions, from the strictures of the act is also dangerous. These are the words that are being proposed for removal – ‘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’. 

How many times in the past have we felt ‘ripped off’ by these government to government arrangements. The MSJ strongly opposes this amendment and calls on the PNM government to withdraw it.

4. The proposal to strengthen the definition of ‘bid-rigging’ is good. The MSJ supports this amendment and we call on the UNC opposition to support this.

5. The proposed amendment to the definition of ‘cohabitant’ should be supported by the UNC opposition.

6. The other amendments are not major and should be supported by the UNC opposition.

Given the critical importance and urgency of having the Public Procurement Act and its regulations fully implemented, we call on all Members of Parliament to do the right thing. The PNM must withdraw the two offending amendments as identified above and the UNC must support the other amendments.

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