COMPROMISE IS NEEDED

Oct 09, 2013 Features / Columnists, Peeping Tom

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The announcement by the government that it will not give effect to the Procurement Commission without retaining government’s right to a no-objection should not necessarily lead to further political gridlock.
Indeed, if there is a genuine understanding as to why the government insists on this right to object to awards made by the National Procurement Administration – an executive body – and if in turn there is an equal understanding as to why the opposition wants Cabinet removed from the process of awarding contracts, it could lead to a rule-based political compromise in which both sides get the guarantees that they want.
But for this compromise to take place there needs to be some acknowledgment of the merits of each side’s case. The opposition wishes to remove government manipulation of the procurement process so as to avoid contracts being unfairly handed to friends and cronies.
However, the opposition fails to recognize that the government itself still controls the nominees to the National Procurement Board that will have to make decisions concerning the evaluation of bids and the award of contracts, and even though there is oversight from the Procurement Commission this is not a guarantee against manipulation at the level of evaluation and award of bids, decisions arising from which cannot be overturned by the Procurement Commission. In other words, even without a no-objection, the system can still be manipulated by the government.
On the other hand, the government argues that its right to object is a safeguard mechanism to guard against possible bias and corruption within the National Procurement Administration. Thus it asserts that if in the opinion of the government there is blatant evidence of bias or favouritism by the National Procurement Administration, which is an arm of the government, then Cabinet has a right to intervene via a no-objection.
The opposition on the other hand insists that the government should not have to sanction any award of contracts after a decision has been made by the National Procurement Administration. This is clearly an untenable position, because it would mean that the National Procurement Administration would be above scrutiny by the administration to which it is accountable.
Beneath this criticism, however, is a deeper fear. The opposition feels that the government wishes to control the procurement process and to use it in a manner favourable to friends and cronies. The opposition wishes to remove this possibility by removing the right to a no-objection.
The problem is that removing Cabinet no–objection does not necessarily achieve the goal of the opposition since, as mentioned before,  the process can still be manipulated at the level of the National Procurement Administration even with oversight from the National Procurement Commission, which is substantially concerned with ensuring efficient systems and procedures.  These systems and procedures can be adhered to and yet the evaluation process can be predesigned to be in favour of a bidder, and there is nothing that the Commission can do about it.
It is also known that there are certain international contracts that require no-objections not just from government, but from funding institutions such as the World Bank and the IDB.
Is the opposition going to reserve for these institutions a right to object to an award by the National Procurement Administration but will be unwilling to grant the same prerogative to its own government? Is that not upturning the very idea of sovereignty?
There is a way around this conundrum and it involves two things. The first is that there should be compromise between the government and the opposition, and secondly this compromise should entail a rule-based system.
The right to an objection by the government should be preserved, but if the government objects, it should trigger certain rules. The Cabinet should first be required to submit to the National Procurement Commission, not the Board, reasons for any no-objection. If those reasons relate to possible discrepancies, oversight or bias in the award of the decision, then the Commission should resend the matter to the National Procurement Administration for reconsideration.
If the National Procurement Administration finds no basis to change its decision, then an administrative tribunal, comprising persons who were not part of the original evaluation, should be asked to reexamine the award. If this tribunal is satisfied with the award, then the no-objection should be overruled.
If on the other hand the no-objection is based on the fact that the award will conflict with an international obligation of the government – there are some agreements which specify that the contractor should be from the country financing the project – then the no-objection should take precedence over any decision of the National Procurement Administration.
There can be all manner of variations to the above formula which is merely illustrative of a rule-based system. The point is that if a rule-based approach is taken to this issue, then the difference between the government and the opposition can be narrowed and there would be no reason for political gridlock to cause the non- appointment of the National Procurement Commission.

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