PROCUREMENT (AMENDMENT) BILL 2013 – BILL NO. 17/2013 – Dec 19, 2013
Mr. Ramjattan: What we have here this evening is largely a miscomprehension of what I would call the constitutional history of this Public Procurement Commission and its aggravated miscomprehension coming from people, quite frankly, who knew it all because they were there.
I wish to quote the last speaker when he gave his speech on June, 2003. It is at page 14/53 of the Hansard. He, at that stage, in concert with many members of the then Cabinet, including the then Minister of Finance, Mr. Kowlessar, and I also were present and heard and indicated...I was not in concert and that is why there was this massive disagreement. It was because we had to go back to the Constitution, and I will come to that. This is what he said at page 14/53:
“Mr. Speaker, this is a fine piece of legislation, a piece of legislation that I have said is taking away the powers of the politicians to make awards in terms of public procurement...The Government and this side of the House has agreed to significant changes. Why? Because we want transparency, we want accountability, and we want to take politicians out of the procurement.”
At page 14/59, to crown it all, the Hon. Minister went on to say this:
“Mr. Speaker, the issue for us is: will this Bill give credence? Will this Bill enhance the procurement system today? Is it in need of reform? We all agree, and certainly many of my nights will now be spent more fruitfully, rather than to have to peruse contracts.”
He used to peruse contracts.
Mr. Speaker: Hon. Member, is the “he” Hon. Member Mr. Nadir?
Mr. Ramjattan: The “he” is Hon. Member Mr. Manzoor Nadir. When I say “him” or “he” that is what I mean – Hon. Member. He then went on at the bottom of that same page to say...I just want to quote it for people to know. He said:
“Nevertheless, the Government is prepared to move in the direction of removing the politicians from procurement. We are going that way. This Bill is a giant step in that direction. While some politicians are stuck in the mud and cannot make a decision, this Bill is going to change the procurement landscape forever.”
Then he went on to say:
“...because this all-encompassing power ascribed to the Minister, to the politicians are being whittled – thanks to this Government.”
It should be supported.
There was no clearer formulation and articulation that they wanted politicians, meaning members of the Cabinet, to be excluded and their role whittled away. That is why that section was put in. My argument when I was trying to counter some Members of the then People’s National Congress (PNC) on that occasion was that up to the point when the procurement commission shall be established, the powers generally shall reside, and I quoted Mr. Forbes Burnham, in Ministers. Once the Public Procurement Commission comes into being, it shall be, thereafter, with the Public Procurement Commission.
I want to go down the constitutional history that we have because what we have as provisions in Articles 212W to 212FF came out of a process. What did we have that caused constitutional reform in 2001, Mr. Speaker? We had a huge set...Mr. Robert Corbin in the Hansard, if anybody cares to read it, stated what caused us to go into a Public Procurement Commission regime.
Indeed, it is true that all Commonwealth Caribbean countries – and I cannot recall any – which had Cabinets or certain buddies within Cabinets dealing with procurement matters. We had civil strife. We had a series of scams – milk scam, stone scam, wharf scam, fertilizer scam – all of which were spoken about by Mr. Robert Corbin in the Hansard. It created the movement that caused civil strife all over Guyana. We then had the Herdmanston Accord and certain other constitutional reforms that came about as a result of us wanting to have consensus and as a result of us not wanting to have bloodshed on the streets. It was a mini revolution. That revolution caused constitutional reform.
Indeed, prior to 2001, there was never ever a procurement regime that was in place. It was largely the executive controlling it, and we never had any Act called the Procurement Act prior to 2002. It was brought into being as a result of that history and so in the constitutional reform process of 2001, we then decided to pass a brand new section called the Public Procurement Commission section of the Constitution and there were so many articles – 212W right down to 212FF.
In that set of constitutional provisions, we made it clear that there shall be established a Public Procurement Commission and, in 2003, when we were debating the Procurement Bill of that year, there was a communiqué that was signed by both Mr. Corbin and the then President that it should be established before the end of the year 2003. It never happened although we passed the Bill and the President assented. We passed the Bill with Section 54 (6) understood by everybody.
It is rather strange today that we are hearing from Mr. Manzoor Nadir, the Hon. Member, that he did not understand what happened at the end point of the debate. I can tell him what happened at the end point of the debate. I was present. The PNC was then making some very serious attacks that they believe that the Minister should not have such powers and they literally walked out of the National Assembly. Section 54 (6) was passed with only PPP/C Members. By the way, sittings were then being held at the Ocean View International Hotel while this building was being repaired. All those who are there who were there then knew clearly what we were saying when we passed subsection (6) in view of the fact that we had the subsection (1). Subsection (6) states:
“Cabinet’s involvement under this section shall cease upon the constitution of the Public Procurement Commission...”
There was nothing ambiguous, ambivalent or circuitous about that provision. Who passed it? I think there were 38 Members in the PPP/C side at that point in time or whatever it was, but it was a bigger majority than the minority that the Government has now. We all understood it. As a matter of fact, then Attorney General Mr. Doodnauth Singh made it clear to very many Members over there, including myself when I was sitting there at that point, that even if we feel there is going to be a contradiction with subsections 1 and 6, he wanted to let us know that articles 212W right down to the very end of it, 212FF, make it very clear that Cabinet will have no role when the Public Procurement Commission comes into being in relation to matters of procurement; that is the award.
I want to say this because a lot of them would want to quote the contradiction, but they would not want to quote the other contradiction which is really Section 54 (1) as against the Public Procurement Commission’s provisions of the Constitution. Let me just make mention of the Public Procurement Commission’s constitutional functions.
In article 212AA (1) of the Constitution, the functions of the Public Procurement Commission are to:
“(a) monitor and review the functioning of all public procurement systems to ensure that they are in accordance with law and such policy guidelines as may be determined by the National Assembly;”
It is not for the Cabinet. One could have seen that in the 2001 constitutional reform process, Cabinet’s role was being taken away. It is now coming back to the National Assembly. They did not mind the National Assembly at that point in time because they had a majority. They said that it was alright; leave it there.
Article 212AA (1) states:
“(b) promote awareness of the rules, procedures, and special requirements of the procurement process among suppliers, constructors and public bodies;”
I would not read all because I want you to zero in on what the very important point here is. Subsection (f) is very important. It 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;”
That was a massive power we gave the Public Procurement Commission and it was agreed to by every single Member in 2001. The Commission was to monitor and review all legislation and report the need for legislation to the National Assembly. That, however, cannot be done because we do not have, at this stage, a Public Procurement Commission. That is in breach of that communiqué.
I want to bring this point over clearer to some of the Members on the opposing side who gave the impression that the Public Procurement Commission does not have power to award, in a sense, and to propose remedial action. Subsection (g) states:
“monitor and review the procurement procedures of the ministerial, regional, and national procurement entities as well as those of project execution units;”
That is what it is supposed to do. Subsection (h) states:
“investigate complaints from suppliers, contractors and public entities and propose remedial action;”
I wish to come to that. In the existing system, as it has been since 1992 and before, largely, people will make bids to the NBTAB. That Tender Board has certain constituent parts about it. One is the evaluation committee. When the bids go in, let us say for pharmaceuticals, five or six people bid, after the Tender Board makes its decision as to who is the best person to be awarded the contract, it says, let us say, company X. If company Y is vexed about it and wants to make a complaint, there was no body that company Y could have gone. [Mr. Nandlall: Yes.]
Prior to 2001, there was no body you could have gone to. [Mr. Nandlall]: Fast forward to 2003]. In 2003, where you are supposed to go to, had we a Procurement Commission by that time, it would have been the Procurement Commission. [Mr. Nandlall: But there is a mechanism there now]. Whatever the mechanism, it was intended that that mechanism would have been superseded by the Procurement Commission, and one would have gone to the Procurement Commission. When one would have gone to the Procurement Commission, assuming Mr. X now, the Procurement Commission would have been like a court of some sort and say to bring up all of the documents – Mr. X’s documents, Mr. Y’s documents, and Mr. Z’s documents – and we will check them now: the score sheets, the credentials and so on. If it is the opinion of the Procurement Commission that Mr. X should not get it because it he has no history, like certain people who have contracts to make roads and they did not have any history, it will then propose remedial action. What could have been the meaning of remedial action under the Constitution if not to say that Mr. X ought not to be granted the award and that Mr. Y has made a better case, so it should go to Mr. Y? That is what the purpose of the Procurement Commission, as I understood it, being at the process in 2001 when it was being drafted, because meaning had to be given to it.
They do not understand that part, Mr. Speaker, and they do not want to. This is exactly what they want: they want to give the impression that the procurement board, the Tender Board, should be the body you go to if Government or anybody has a complaint. How could you go back to the Tender Board or its constituent called the evaluation committee? How could you go back to the same Caesar’s court to ask Caesar? We should go to the Procurement Commission. That is the point of our Constitution.
The Constitution has it there, Sir, and they will want to go and misconstrue that history. The Procurement Commission, under Article 212AA(1)(j) can “initiate investigations to facilitate effective functioning of public procurement systems”. I want to make the point here: none of these procurement provisions are in the Constitution of Singapore; none of them are in the Constitution of Belize; none of them are in the Constitution of Jamaica. That is the distinction that must be drawn. None of these provisions are in the International Development Bank (IDB), in the World Bank, in the International Monetary Fund (IMF) or anywhere else; it is in our supreme law. But do you know what? The entire platform of their argument tonight is that our Constitution is wrong; that is what they are coming here to say. [Ms. Shadick: Who said that?] That is effectively what you are saying. “Who said that?” This is exactly what they are trying to say, even if they are not saying it: the Constitution was all wrong. [Mr. Nandlall: I am not saying it.] You are saying it.
I want to bring another bit of constitutional history. When we established the Procurement Commission with all those powers, Mr. Speaker, we then proposed that instead of setting the procurement commissioner and then getting the Procurement Commission to report to us what should be a very good law of procurement as per stated in that section that gives it the power to report the need for any legislation in the National Assembly, but the good Government of that day decided that they will come with a Procurement Bill; and they came in 2002 with a Procurement Bill. I must say that it was very advanced. The majority of the provisions there are very advanced, but there was a problem with Section 63 that was quoted by Mr. Sharma:
“Cabinet may issue a no-objection to a proposed award, including an award under Section 24(1)”.
Immediately, if one were to read that Procurement Bill and read the Constitution, one would see a collision between Cabinet having what is called a no-objection as against what we were saying in the Constitution, that the Procurement Commission must have that power: doing all the laws, the procedures, the policies, the manual and everything. That is why the reading of the Constitution, the functions of the Procurement Commission shall be all these.
Mr. Speaker, the poor Attorney General will be very ignorant here because he was not at the 2001 or the 2003 process. The Constitution is stating all the functions. The Constitution here... [Mr. Nandlall: Here it says that Cabinet must have a no-objection [...Inaudible]] We are saying that is the reason we had the war out there.
Mr. Speaker: One second. Hon. Mr. Attorney General, I think you are slated to speak next so allow Mr. Ramjattan... You will have a chance coming next to say what you need to say. Let Mr. Ramjattan speak.
Mr. Ramjattan: I want to make it a rebuttal here to him because he will come later and say all kinds of things. When there was never this constitutional provision, Mr. Speaker, the power had resided in the Executive branch. When the Constitution now stipulates all of these roles and functions for the Procurement Commission, it took it away. [Mr. Nandlall: No.] The prerogative of the Executive was then taken away and it becomes a function of the Procurement Commission; that is what we have here. They would not understand that kind of constitutional restraint. When it was not there, then you gave it... In our country, the Attorney General used to be regarded as the person in control of prosecutions up to 1960, then we put in a constitutional provision that the Director of Public Prosecutions (DPP) would have that power, but it never stated what is being taken away from the Attorney General and given; it had never said so. [Mr. Nandlall: It says so.] It does not say so. The DPP section does not say so. But you do not understand your constitutional context and your constitutional text. Hon Member Mr. Nandlall has always had a problem with that.
Now, I just want to make mention of this additional point in the history: in 2002, there was a no-objection that was given to Cabinet. That no-objection that was given to the Cabinet in the 2002 Act, the IMF, the World Bank and those who were supporting fiscal reconfiguration in this country by virtue of handing a couple million US dollars to transform the very system that was obviously in need of better shape said that they did not like this, and there was some international pressure. But they agreed - Mr. Manzoor Nadir and all of them - that they are going to change the Procurement Act of 2002; that they are going to repeal it wholly and are going to come in 2003 and are going to put in this little thing here. It was not as if they were going into it with eyes closed; it was with eyes wide open. [An Hon. Member: It is almost identical.] That is what I am saying: it was substantially identical, except, Mr. Speaker, for that same Section 54. That Section 54 was more or less the Section 63 in the previous Bill and Act. They knew what it was all about.
I want to say this: we had always wanted - and over there always wanted - to have the Tender Board and its constituent parts, and above it we will have the Procurement Commission. That is what Mr. Manzoor Nadir spoke about when I quoted him, then Mr. Kowlessar and Mr. Shaik Baksh. You should have heard what Mr. Shaik Baksh and a number of them said here. That was now going to be the structure, the hierarchy. In that hierarchy, in relation to matters that were to be dealt with in relation to procurement, that is the actual award, who could object and who could not, it was quite clear that once the Government’s policy will say that they would like to do a Cheddi Jagan International Airport expansion and they are going to propose in the capital project this year $52 million to do that, what then is supposed to happen is that the Tender Board is supposed to now put it out for tender, not Mr. Roger Luncheon or anybody, and then bidders will bid.
There might be occasions when there might be singular bids or singular arrangements because the Act has all of that. The whole idea is that assuming now that there are five bidders and one is aggrieved, but, moreover, Mr. Speaker, not only if the competitors are aggrieved, it is also if the public entity is aggrieved, they could go and state that we would like to complain to the Procurement Commission. We have here that even a public entity, and if that public entity is Mr. Robeson Benn’s ministry, that says they are going to look after that, they could tell the Tender Board that the fact that you gave it to Mr. Ramjattan as against China Harbour, we are objecting and we will make a complaint. Where is that complaint supposed to be heard? The complaint is to be heard by the Procurement Commission. Internally, it will come first. Most of the evaluation that they are talking about there will be arithmetical; it is the smaller things. Why did we pass the Procurement Act? Is it so that the evaluation committee is going to hear the appeal? That is why we are not getting a proper grasp by those Members over there. It is the Procurement Commission that one will go to for purposes of ensuring that one’s complaint is heard. When the complaint is heard, the Commission will then propose remedial action. That is why the remedial action, prior to 2001, was the Cabinet because there was no Bill or Act prior to 2001.
Mr. Benn: Mr. Speaker, the Hon. Member, just now, called the name of a company which is in contract with the Government of Guyana.
Mr. Speaker: Which one is this?
Mr. Benn: He said China Harbour.
Mr. Speaker: No, Mr. Ramjattan said you gave it to Mr. Ramjattan but you did not give it to China Harbour. In other words, he put China Harbour in a favourable light. And he said the accusation could be that he got the contract and China Harbour did not and that could lead to a complaint.
Mr. Benn: Mr. Speaker, the Hon. Member, I believe, has no reason to call the name of the company. And secondly, Mr. Speaker, the Hon. Member, Moses Nagamootoo, sitting next to him said that they brought a suitcase of money.
Mr. Speaker: I did not hear that.
Mr. Benn: Mr. Speaker, the Hon. Members in the corner here are succinctly inferring wrongdoing with respect to this company and the contract.
Mr. Speaker: The point is noted.
Mr. Benn: I would like the remarks to be withdrawn.
Mr. Speaker: In the first instance, I did not hear - and I have asked the person seated next to me – any reference to any bag of money, but Members, as we exchange between each other, let us avoid these statements. There is nothing to be struck out because it was not read or spoken into the record.
In the second instance, while Mr. Ramjattan said that the objection could be that he gets the contract and not... It could never mean that he was speaking about a company in a disparaging way. In any event, Mr. Ramjattan, as you give your examples, use either examples in other places or use fictitious [inaudible] In no way was the comment taken in a disparaging way.
Mr. Benn: Mr. Speaker, the Hon. Member had no reason to mention the name of the company but to infer wrongdoing.
Mr. Speaker: No. Hon. Member, with the greatest of respect, Mr. Ramjattan said that if the contract was given to him without good reason and not to the one that was better qualified, i.e. China Harbour, that could lead to a miscarriage of justice. I see in no way that it was meant to be disparaging.
Mr. Ramjattan, as you are one of the more experienced Members of the House, a skilful debater, try to avoid, as I said, references to existing, extant companies that could cast any shadow of doubt or suspicion over them.
Mr. Ramjattan: Thank you very much.
There is a huge point made of the fact that we in this Government, and that is the People’s Progressive Party/Civic (PPP/C) Members speaking, must have what is called the fiduciary role that we must play so that we must be accountable and all of that. Mr. Speaker, when our Constitution speaks, we must listen to it because that is where all power emanates. If indeed because of certain crises that happened in the 1999 to 2001 period, then we amended our Constitution to delete certain powers of the Executive by virtue of specifying them in a Procurement Commission, then that fiduciary relationship in relation to procurement obviously is taken away. This is what they do not want to understand. They are saying, and I will give this as the analogy, that if the people do not like the contract award and they want to complain, they could even go to the court of law. Indeed, we know what is called the prerogative writs remedies and so on. They can go for a certain certiorari to quash, assuming the good judge then says that indeed that award that was made by the Tender Board was corrupt. This complainer, the plaintiff in this matter, who should get the contract, assuming he makes the award, or he takes it away, preferably, is it not another body other than the Cabinet making a decision? It is another body and we have given inherent power in our court to make those remedial...
Mr. Speaker: There is a case of C. O. Williams of Barbados that is exactly on point.
Mr. Ramjattan: That is right. It is exactly on point. We cannot go and say to Mr. Ian Chang, assuming Mr. Chang is the judge, to say, “You cannot do that,” because you are taking away the Cabinet’s role. Since when did the court get no-objection? It smacks of a misunderstanding, and a flawed understanding of our Constitution. It is important, Mr. Speaker, that we do not go amiss here by virtue of what those Members are saying that the law is wrong, the Constitution is wrong and all of that. I want to say our constitutional structure – its infrastructure, the entire framework here – was, when we passed that Procurement Act, that indeed, when it comes into operationalisation, Cabinet’s role shall cease.
It cannot be that after 10 years, when you would have delayed and procrastinated and used all machinations and devices to ensure that the Procurement Commission does not come into operationalisation... Now when the Opposition is in a majority and can leverage its existence and operationalisation, you come to say our Section 54(6) was all inherently contradictory. What is that? It is but a political ploy to use it, because, had they the majority, they would have never come for all of that, but they now know that they are under pressure and that they want that.
Mr. Speaker, the purpose behind wanting that is for this reason: they could then, literally, get all the contracts awarded to whosoever they want. They have a control mechanism in the appointment of the Tender Board and by virtue of what they now want with an objection. That Tender Board will always want to watch over its shoulder and wonder what Cabinet will do. I better give this one.
Mr. Speaker: Mr. Ramjattan, remember your time has expired. You will need to apply for an extension.
Mr. Nagamootoo: I ask that the Hon. Member be given fifteen minutes to conclude his speech.
Question put, and agreed to.
Mr. Speaker: Proceed.
Mr. Ramjattan: I might not need all of that. The point is that we know what our country is. It is also because the substructure of what we call the Tender Board, whether it is regional, national or even local boards, is appointed by the Minister. It meant then we ought to have a hierarchy that will be appointed as the Constitution said. The Constitution makes it clear that there will be appointed largely... We know what consultation means in this country. The word meaningful is not in front of it. It never said that vice of or recommendation, after consultation...
I want to make it very clear that the purpose of wanting a no-objection, which was objected to strenuously by the international donor community in 2002, and the reason why it was deleted in 2003, is now for purposes of ensuring, as I have just mentioned, who will get the contract. There is no if or but about that. They want control and that is what this is all about. They will continue that control without a Procurement Commission. We are not going to allow that, not on the one occasion we have where we can leverage it coming into being.
I want to emphasise an earlier point of a very senior Minister then who knew about all these matters, Mr. Shaik Baksh, to make what I am talking about quite clear. They did not go with their eyes closed and did not know what they were doing. They were not quoting from Singapore and all of those other countries they are now quoting from. This is what Mr. Shaik Baksh said, and he was telling the People’s National Congress (PNC) then. It is page 14/94 of the Hansard of Thursday, 19th June, 2003:
“The one issue that seems to be misunderstood mostly, is the role of the Cabinet in all of this, and it is clear, you have an Amendment.
Do you know what amendment he was talking about, Mr. Speaker? He was talking about Section 54(6).
“You must credit the Administration, that we are flexible. We have an Amendment which the Minister will elaborate on. I hope that with that Amendment you will see the wisdom of supporting this Bill.”
So they knew what they were talking about.
“Now what has been said here? The Cabinet has a minimal role, but it is our duty to the electorate of this country that, in the short run until the National Procurement Commission comes on-stream, there is a teething period, you will recognize that. They have to set up the Secretariat, and all of these things, and therefore, over time, the Cabinet’s role will fade away, so to speak. The National Procurement Commission will take hold. Do not be afraid [over there PNC], they will exercise their constitutional responsibility as laid down in the functions of that Commission [as per the Constitution]. It will be coming, and it says here, to promote the goal of progressively phasing out Cabinet’s involvement, and decentralising the procurement process. It is here in black and white.”
[Mr. Nandlall: It is an award.] Whatever it is – an award or proposed award – it goes to Cabinet. Cabinet must not block it. And that is what you are talking about. This is what it is.
“You must understand that this will come in time. So the Cabinet has no vested interest in holding on to these kinds of powers, but we have to give the Procurement Commission an opportunity to strengthen itself and so on. So these are certain important things.”
Mr. Shaik Baksh said that. We knew when we put in here this Subsection (6) and we voted for (6). I voted for it after it was amended. If I may say so, and it will be on the record, Mr. Speaker, the learned Attorney General at that time asked my assistance to draft it so that we can capture the intent. Of course the Speaker then, Mr. Ralph Ramkarran, agreed. When we did this amendment, Ms. Gail Teixeira said, “Wonderful amendment.” I remember that. For all those reasons, Mr. Speaker, this must not be deleted. I had a role to play. They would want to say it was a bad role this day; whatever it is, it was a role that all of them commended. Ten years thereafter, they now want to delete it so that they could maintain the monopoly power and the control freakism will continue. It will not continue!
Thank you very much, Mr. Speaker. [Applause]