PPC says ‘no objections’ to contract remains with Cabinet
… urges revision to some aspects of Procurement Act

THE recently established Public Procurement Commission (PPC) on Friday has made recommendations for the revision of some aspects of the Public Procurement Act given the conflicting nature of some provisions within the legislation.

In a statement to the media on Friday, the Constitutional body said, “the PPC has spent considerable time reviewing the existing legislation and has already identified the need for revision and / or amendments to the Procurement Act and the Regulations made thereunder to ensure clarity of the provisions, removal of conflicting sections and to ensure compliance with the Constitution.”

Two areas have been identified for immediate attention; the role of Cabinet in reviewing all procurements which exceed G$15 million, as provided for in Section 54 (1) to (5) of the Act and constantly referred to as the “No Objection Role of Cabinet”; and the role and functions of the Bid Protest Committee.

As required by the Constitution of Guyana, the Commission has also received and reviewed complaints from contractors, but that process has been constrained by several issues. The PPC noted however that Section 17 (2) of the Procurement Act enables the National Procurement and Tender Administration Board (NPTAB) to carry out certain functions until the PPC is established. Among those functions is the making of regulations governing procurement to carry out the Provisions of the Act as is listed in Section (2) (a) to (f) of the said legislation. But Section 17 (3) clearly identifies that the said functions shall be the responsibility of the PPC, once established.

“The PPC has already held discussions with the Minister of Finance, as well as, officials within the Ministry of Finance and the National Procurement and Tender Administration with respect to the transition of these functions to the PPC,” the statement added.

Section 17 (1) of the Procurement Act outlines the functions of NPTAB and states that the Board shall be responsible for exercising jurisdiction over tenders, the value of which exceeds such an amount prescribed by regulations, appointing a pool of evaluators for such period as it may determine, and maintaining efficient record keeping and quality assurances system.

Subsection (2) says that pending the establishment of the PPC, NPTAB shall be responsible for making regulations governing procurement to carry out the provisions of the Act, determine the forms of documents for procurement, including, but not limited to standard bidding documents, prequalification documents, contracts and evaluation forms and organising of seminars. Additionally, the Board is required to report annually to the Minister on the effectiveness of the procurement processes and recommend amendments, as well as adjudicate on debarments.

Subsection (3) notes that when the PPC is established, the responsibility of the NPTAB shall be limited to those provided in Subsection 1 and all other responsibilities listed shall become the responsibility of the PPC.

“In this regard the PPC has spent considerable time reviewing the existing legislation and has already identified the need for revision and / or amendments to the Procurement Act and the Regulations made thereunder to ensure clarity of the provisions, removal of conflicting sections and to ensure compliance with the Constitution.”

In the case of Cabinet and it’s No Objection to contract awards, the PPC said it has fully deliberated on the continuing ‘no objection role’ of Cabinet. The body noted that the suggestion that Cabinet’s continued no objection to contracts is linked to the PPC being operational and functional is inaccurate and misleading as neither the Constitution nor the Procurement Act provides for the PPC to take over that function from Cabinet.

“The Constitution empowers the PPC to carry out oversight of the procurement system in Guyana and its functions are clearly outlined as set out above. None of those functions provides for a “No Objection to Contracts” role for the PPC. 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 statement said.

However, the PPC believes that “a conflict arises” between the provisions of Section 54 (1) and 54 (6) of the Procurement Act. Section 54 (1) states that Cabinet has the right to review all procurements the value of which exceeds $15M and shall conduct its review on the basis of a streamlined tender evaluation report to be adopted by NPTAB as mentioned in section 17 (2).

“…upon its establishment, the Public Procurement Commission shall review annually the Cabinet’s threshold for review of procurements, with the objective of increasing that threshold over time so as to promote the goal of progressively phasing out Cabinet’s involvement and decentralising the procurement process.”

The Commission believes that a literal interpretation of the aforementioned section shows clearly that the review role of Cabinet should continue even after the establishment of the PPC with that body reviewing annually the threshold so that over time, by the raising of the threshold, the role of Cabinet would be eliminated.

Contrastingly however, Section 54 (6) states that Cabinet’s involvement under the section shall cease upon the constitution of the PPC, except in relation to those matters referred to it under 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 statement added.

As such, the Commission says it 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 PPC stated.

Meanwhile, in the case of the role of the Bid Protest Committee, a bidder whose tender or proposal has been rejected and is aggrieved may submit a written protest to the procuring entity in the manner and time-frame specified in section 52 of the Act.

That bidder may later make the protest to the PPC under section 53 of the Act. “Section 53, however, needs clarification and possible amendment, as its provisions, unless revised, appears 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,” the statement said.

Accordingly, the provisions for the appointment and functioning of a Bid Protest Committee may have been appropriate prior to the establishment of the PPC but now that the Commission is established, the PPC believes 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.

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 statement noted.

The body sought to correct media reports, which suggested that it was not functional and as a result cabinet’s ‘No Objection’ to the award of contracts continues.

“It should be noted that the PPC became functional immediately after the appointment of the Commissioners by His Excellency, President David Granger on the 28th October 2016, as required by Article 212X. (2) of the Constitution.”