– it is a constitutional and administrative heresy, says AG Nandlall

ATTORNEY General and Minister of Legal Affairs, Anil Nandlall has described the A Partnership For National Unity (APNU) and the Alliance For Change’s (AFC’s) opposition of Cabinet’s role in the awarding of public contracts as “incongruous and wrong both in principle and constitutionally”.

The political Opposition, in particular the AFC, has been calling for the establishment of a Public Procurement Commission (PPC), which will see the removal of Cabinet’s role in the procurement process.
“This is heresy both administratively and constitutionally, and we are saying that this incongruous position cannot obtain,” he said.
Minister Nandlall explained that the PPP/C administration has always signalled its commitment to the establishment of the said body, and reminded that it was the administration which amended the Constitution, and those changes resulted in a provision for the creation of the procurement commission.
“However, the commission cannot be established unless a flaw in the current Procurement Act is corrected,” he stated.
The AG explained that the constitution of the country resides the executive government with the financial responsibility and management of the state of Guyana. More than 98 percent of the financial expenditure of the state is done via the procurement process.
As it stands, Cabinet’s only role in the procurement process is offering a simple “no objection” to contracts that have been awarded by the National Procurement and Tender Administration Board (NPTAB).

‘When the decision is made to award a contract, it is brought to Cabinet and Cabinet cannot overturn that decision; we can only grant a “no objection”. That is the only input that we have. If this role is taken away from the President and the Cabinet, then the Administration will be answerable to the country and the Parliament for the financial affairs of the State and for expenditure of public funds without having any role to play with regard to the expenditure of a single cent of that money. That is an incongruous position to be in, it is wrong in principle. You cannot give a power without a responsibility and you cannot give a responsibility without a role.’ – AG Nandlall

“When the decision is made to award a contract, it is brought to Cabinet and Cabinet cannot overturn that decision; we can only grant a “no objection”. That is the only input that we have,” Minister Nandlall said.
He added that, “if this role is taken away from the President and the Cabinet, then the Administration will be answerable to the country and the Parliament for the financial affairs of the State, and for expenditure of public funds without having any role to play with regard to the expenditure of a single cent of that money. That is an incongruous position to be in, it is wrong in principle. You cannot give a power without a responsibility and you cannot give a responsibility without a role.”
The flawed provision was inserted into the extant Procurement Act (then a Bill) when it was being debated on the floor some years ago. As such, it never received the approval of Cabinet before it was effected into the law.

‘The PPP/C administration has always signalled its commitment to the establishment of the Procurement Commission…However, such a Commission cannot be established unless a flaw in the current Procurement Act is corrected.’

“The procurement commission is an oversight body. When a constitution sets up an oversight body, it is to “oversight” the executive but when the executive has no role in the procurement process, what will the procurement commission oversight? Obviously the Constitution presumes and assumes a role of Cabinet in the process,” the AG argued.
In Guyana, the Government has a very limited role in the procurement process, when compared to other jurisdictions in the Caribbean.
“We do not award contracts and if you examine the legal statutory provisions of all the procurement processes in the Caribbean you will see the hand of Governments heavily in it, we have minimised that in Guyana. If our procedures are examined in terms of transparency and accountability, we stand superior to most of the infrastructure; legal and constitutional, which exist in the Commonwealth Caribbean in respect of procurement,” the AG affirmed.
At the last sitting of the National Assembly, Finance Minister Dr. Ashni Singh tabled the Procurement (Amendment) Bill, which seeks to modify section 54 of the Procurement Act of 2003, by deleting sub-section 6, which by doing so, will retain Cabinet’s involvement in the procurement process.
Minister Nandlall contended that this amendment is simply to ensure that whoever is in Government, have the constitutionally required role to play in the expenditure of public funds.

(GINA)