THE LAW IS THE LAW

Jun 30, 2009 Features / Columnists, Peeping Tom

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If the President of Guyana needs to be instructed on what the law states in relation to the role of Cabinet in the procurement process, or for that matter the overall laws in relation to public procurement of goods and services, this column is willing to arrange a special tutorial for the President.
At his last Press Conference, the President looked totally at sea when it came to a question about the observations of the Auditor General’s Report and the single sourcing of goods for the Ministry of Health. The answer that the President gave shows clearly that either he does not understand what the Procurement Act of 2003 states or he was confused by the question.
This is not the first time that the President has made a mess of interpreting the law. At the opening of a pro-government newspaper, the President tried to lecture business icon, Dr Yesu Persaud, and even had the temerity to suggest that Yesu ought to attend a seminar which he would ask the Head of the Privatisation Unit to arrange concerning tax holidays.
As it turned out, it was the President who was hopelessly out of touch with the laws governing tax holidays. When this was exposed, his government faced the humiliation of having to go to parliament to change the laws so as to permit a tax holiday that had been promised to the grouping that owned the newspaper.
Yesu had the last laugh. But no President should allow himself to end up in the position of President Jagdeo and the tax holiday laws.
The issue of the purchase of drugs by the Ministry of Health from the New Guyana Pharmaceutical Corporation has once again surfaced. And nothing that the President said at his recent press conference will erase the illegality of the arrangements. Those arrangements are in breach of the Procurement Act and therefore are unlawful.
One would have expected that the President, following the 2006 Auditor General’s Report, would have taken immediate steps to remedy this illegality. This column does not wish to further embarrass the Head of State. This column will offer to instruct the President on what the Procurement Act states and to clear up any misgivings that he may have concerning the role of Cabinet in this process.
Section 54 of the Procurement Act gives to Cabinet the right to review all awards over fifteen million dollars. It must be understood that Cabinet is not required to review all awards above this threshold, but merely has the right to do so.  This review takes the form of the issuance of a no objection.
The law is very precise in that it states that Cabinet cannot award a tender to any supplier or contractor. The President is thus correct when he adduces that Cabinet cannot alter an award or instruct the Tender Board as to who should be awarded a contract.
However, Cabinet can issue a no objection, but the grounds for objecting are not open-ended in that Cabinet can only object if it feels that the procuring entity failed to comply with the procurement procedures. This is the only ground for objecting.
These procedures do not provide for the sanction of Cabinet to waive tender board procedures. Any such waiver is illegal and ought to be rejected by the National Tender Board. Thus, there is no need for any previous waiver to be renewed, since Cabinet is not required under the law to do so.
This is further emphasised by Section 25 of the said Procurement Act which makes public tendering mandatory.
While the government may have in the past purchased drugs by single sourcing from a United Nations agency, there is no provision in the law which states that in the same way that a television license may be passed from one owner to the next, that single sourcing of drugs can be passed from one company to the next without public tendering.
Single sourcing is allowed under the law, but under certain clearly expressed conditions. These conditions are as follows:
1)When the goods are only available from a particular supplier or where that person has exclusive rights to the good of service to be supplied;
2)Where the service, by reason of its highly complex or specialised nature, is available from only one source;
3)Where it is impractical because of catastrophe (or emergency) to source the goods and services through other methods of procurement;
4)If for reasons of standardisation and the need for compatibility with existing goods, equipment and technology there is a need to single source;
5)For reasons of national security or defense.
It is therefore evident that there is no justification for the single sourcing of drugs and medical supplies and services from the New Guyana Pharmaceutical Corporation. The law prescribes that there should be mandatory public tendering and the failure of the government to comply, constitutes a violation of the Procurement Act.

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