Is there a way out for efficient contractors “lacking in capacity”?

Feb 06, 2014 Letters

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DEAR EDITOR,
When the Procurement Act received the President’s Assent in 2003 the establishment of the Procurement Commission was already part of the Constitution.
Since the President’s Assent in 2003, two PPP/C Presidents of Guyana took the Oath of office—one in 2006 and the present one in 2011.  Each solemnly pledged to uphold the Constitution as it was then. Did they take the Oath with a “mental reservation”?
There are reasons why the ruling party will not like the provisions of the Procurement Commission. First, its members are chosen not by the Minister, but by the Public Accounts Committee (PAC) of the National Assembly. This method goes against one -party control.  With the power in the hands of the Minister, as in the Broadcast Authority Act, 32 becomes 33 and 33 becomes 32.  Secondly, the Procurement Commission, once appointed, takes over the review, functions and the “grievance procedure” of the hand-picked National Procurement and Tender Administration (NPTA.)
Next, the Cabinet loses its  “backstopping” veto power over the decisions of its own hand-picked NPTA, appointed solely by the Minister, in effect by the PPP.  Luncheon was kind enough to reveal that in Guyana “democratic centralism” is an applied state doctrine. The Procurement Commission will cut these privileges. The commission can refer disputes about contracts to a tribunal appointed under an Act of parliament. An aggrieved party can refer a decision of such a tribunal to the Court of Appeal for a final ruling.  All of these measures stand in the way of the paramountcy of any party.
The President, on December 8, 2013, announced support for the Procurement Commission, but he does not want the Veto over the NPTA to pass to the Commission, as the Act requires.
The commission became necessary because of long demonstrated unfairness in the award of contracts since the days of what we called “The Gang of Four.” This powerful Gang had one virtue. It treated non-PPP Indians and Africans equally. In correcting this unfairness, the PPP Procurement Acts created a machinery chosen by the party’s Minister of Finance.
Their control of everything was bound to break down. When one of the power centres in the contracting sector lost out, he took his comrades to court, and the consequent judgment essentially damaged the prestige of the Procurement Authority for all time. The procurement ruling opens to question NPTA’s fairness, even within the favoured circle. (Please see my article ‘The Procurement Act 2003’ in SN of April 4, 2004)
Sadly for those now excluded from the tendering process, namely African contractors, largely inactive for some years, the written laws offer no hope. Even with the Commission’s establishment, tendering can remain a scramble and a rivalry among the accustomed pre-qualified and privileged tenderers. This remark will attract strong criticism, but it is better to sound the warning now. The commission has no function to include those excluded. It can merely request a change of the rules.
For reasons known to him, President Ramotar has announced the PPP’s conditional support for the Commission.  A new government bill to amend the Procurement Act will remove the section of the existing Act which takes away the “No Objection” power from the Cabinet and transfers it to the Commission.  Leaving the No Objection power with the Cabinet and after the establishment of the Commission will be a new area of contention. Next the government will try to amend the Constitution to get rid of the ample powers of review vested in the Commission. In both cases the National Assembly is central.
In his press briefing of December 8, the President is reported as saying
“Guyana, as it stands, now has given up more authority in that area than any other government in the Caribbean. We are the only Cabinet that does not award contracts.” It should be recalled that Guyana was also the only country in the Caribbean in which a UN special official found noteworthy discrimination against African Guyanese contractors.
The government’s apologist on that occasion admitted that African Guyanese contractors played a minor role in government’s contracting, but explained it by saying that they “lacked capacity.”  As a long time observer of the sector, I would add that they also lost capacity heavily and progressively during the 18 years (1992 to 2010) and later of the PPP rule.
While the Procurement Commission will bring independent monitoring and oversight to the procurement process, it will not by itself change the balance of ethnic and political participation in government contracting.  The procuring entity may require a contractor or supplier that has been prequalified to demonstrate again it is in accordance with the same criteria used to prequalify such supplier or contractor. How can they have all of these after 20 years of undeserved idleness? How can they prove “reputation” and “experience” after inactivity or very low activity for two decades?
In addition, Section 7 provides that suppliers or contractors are permitted to partake in the participation process without regard to nationality. Thus the majority of home-based contractors are open to unequal competition, which may be legally “fair” competition from home and abroad.
It has been claimed that the situation described by the UN was not due to discrimination.
A Guyanese poet in Maryland, Arnold Bathersfieid, has published a new volume of poetry “No Way Out”.  Dr Jagan spoke eloquently about equal opportunity legislation. Others are also on record.
Is there a way out at home for efficient contractors “lacking in capacity”?  Good question! I hope to attempt an answer.
Eusi Kwayana

 

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