-no deficiencies or weaknesses in the law exist, AG says
THE significant breaches of procurement laws under the APNU+AFC government raises serious concerns about the failure to monitor the performance of contracts which were awarded during their time in office.
This is according to Attorney-General Anil Nandlall, S.C., who upbraided the former government on Tuesday during his weekly Facebook programme, Issues in the News.
The AG used a part of his programme to address the disclosure made on Monday during a Public Accounts Committee (PAC) meeting that the Ministry of Public Health and the Civil Defence Commission (CDC) did not procure COVID-19 supplies in an efficient manner.
The Auditor General in his 2021 procurement, storage and distribution of COVID-19 supplies report, concluded that there was no monitoring of the performance of contracts, which resulted in millions of dollars of supplies being delivered close to a month after the delivery dates had expired. Additionally, the entities prepared Purchase Orders after receiving supplies.
It had been recommended that the MoH and CDC engage the Minister of Legal Affairs and other stakeholders to have the Procurement Act 2003 amended to include emergency-procurement policies and procedures. Members of the PAC had also called for those amendments to be made.
However, on Tuesday, Nandlall said that the “breaches that were identified by the Auditor General really had nothing to do with deficiencies in the law.”
“It had more to do with the government of the day, failing to comply with the existing regime of statutory processes and also the government’s failure or inability or omission to enforce contracts that were flagrantly breached during the procurement period.
“It has nothing to do with the law being deficient, or there being any gaps or weaknesses in the law. It is that the law was not complied with. The law is there, and the law remains there. But if you don’t obey the law, if you don’t follow the law, you can’t fault the laws,” the AG said.
The report found that from March to August 2020, the APNU+AFC government did not allocate a specific amount to meet COVID-19 expenditures. The Ministry of Public Health and the CDC met such expenditures from monthly releases under the line items.
As stated, the two entities spent over $1 billion to acquire COVID-19 supplies. In addition to the amount expended, both agencies received a significant amount of donations or gifts from local and international organisations.
Meanwhile, the CDC received cash donations totalling $45 million for the period. Suppliers delivered close to $400 million worth of goods a month late. In one instance, the ministry did not deduct penalty fees of close to $5 million.
Recently, the AG’s chambers managed to secure a judgement against Trinidadian company, Davis Ecolife Limited to repay the $6,159,325 deposit it received from the National Data Management Authority (NDMA) in 2019 for the supply of two prefabricated enclosures to house ICT hubs.
The said agreement – made under the coalition government- had a completion date of January 25, 2019. However, Davis Ecolife Ltd. failed and/or neglected to perform the contract in accordance with the agreed date.
The AG’s chambers had commenced legal proceedings against several companies to recover monies that were paid out in contracts under the APNU+AFC Government, where goods or services were not delivered.
One of the cases currently before the court is against NevPro Realization Limited of Jamaica, and Former Minister of Public Infrastructure, David Patterson, over a breach of contract that was entered into almost seven years ago.
The matter at reference has to do with the non-delivery of three mobile motion scales bought by the APNU+AFC government for a whopping $72.264 million back in December 2016.
In the Statement of Claim, the AG has also named former Permanent Secretary in the Ministry of Public Infrastructure, Balraj Balram, and the ministry’s former Head of the Special Projects Unit, Lawrence Mentis as respondents.
On behalf of the state, Nandlall is seeking $50 million in general damages from the Jamaican company for loss and damage suffered as a result of the breach of the contract, dated December 6, 2016, for the supply and delivery of three scales.
He is also claiming for liquidated damages in the sum of $7.245 million calculated at 10 per cent of the contract price for breach of contract by the said company.
Alternatively, the AG is also seeking an Order of Restitution against the company for all monies received as full payment under the contract which was breached.
Last year, the Public Procurement Commission (PPC) was sworn in. The PPC is responsible for the oversight of the public procurement of all goods and services, along with the monitoring of all infrastructural works to ensure that they conform to the relevant laws and guidelines.
