Law does not allow Procurement Commission to take over Cabinet’s “No Objection” role

Feb 25, 2017 News

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– says the area requires “immediate attention”
The recently established Public Procurement Commission (PPC) has decided to set the record straight on what effect its existence will have, if any at all, on Cabinet’s “no-objection” role.

In a missive to the press yesterday, the Commission said that it felt compelled to clear the air on the matter given recent media reports. Those reports suggest that the continued role of Cabinet is linked to the PPC being “operational and functional.”
However, the Commission said that this line of thinking is not only inaccurate but also misleading. In fact, it stressed that neither the Constitution nor the Procurement Act provides for the Commission to take over the “no-objection” role function from Cabinet.
The body said that the Constitution empowers the PPC to carry out “oversight” of the procurement system in Guyana and its functions are clearly outlined in this regard. The Commission stressed that none of those functions provide for a ‘No Objection to Contracts’ role for the PPC.
The Commission said, “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.”
CONFLICT
Furthermore, the Commission said that a conflict arises between the provisions of Section 54 (1) and 54 (6) of the Procurement Act.
Section 54 (1) states, “The Cabinet shall have the right to review all procurements the value of which exceeds fifteen million Guyana dollars. The Cabinet shall conduct its review on the basis of a streamlined tender evaluation report to be adopted by the authority mentioned in section 17 (2). [i.e., the NPTAB and after its establishment the PPC]. The Cabinet and, 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 involvement and decentralizing the procurement process.”

The Commission said that a literal interpretation of this section clearly indicates that the review role of Cabinet should continue even after the establishment of the PPC, with an annual review by the PPC of the threshold so that over time, by raising the threshold, the role of Cabinet would be eliminated.
Meanwhile, Section 54 (6) provides as follows: “Cabinet’s involvement under this section shall cease upon the constitution of the Public Procurement Commission except in relation to those matters referred to it in subsection (1) which are pending.”
The Commission said that a layman interpretation of this section directs the immediate cessation of Cabinet’s role once the PPC is constituted.
The Commission stressed however that while that conflict exists, neither section provides for the PPC to take over that function from Cabinet. The Commission said that its role 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.
Based on the foregoing, the Commission stressed once more, that it is not empowered by the Constitution or the Act to grant no objection or to award contracts. It also stressed that the issue of the no objection role of Cabinet is one which requires immediate attention.
The new body expressed that the awarding of contracts is the responsibility of the Procuring Entities and the National Procurement and Tender Administration Board (NPTAB). It said that these agencies are responsible for the public advertisements of contracts, evaluation of bids and ultimate approval and award of contracts.
The PPC became functional immediately after the appointment of the Commissioners by President David Granger on October 28, 2016.
Since this is the first such Commission in Guyana, the Commission articulated that the Constitution required certain preliminary actions to be taken to enable it to effectively carry out its mandate.
Despite constraints, the Commission said that most of the above matters have been addressed by the Commission including, the finalizing of the structure for the establishment of the Secretariat of the Commission.
In this regard, the process of the recruitment of the Chief Executive Officer/Secretary of the Commission and the two most senior officers is well advanced.
The Commission said, “A report on the selection of the suitable candidates for these posts has been submitted to the National Assembly and the Commission awaits the approval of their terms and conditions by the National Assembly as required by Article 212Z. (2) of the Constitution.”
It continued, “The recruitment of other support staff for the Commission as required by Article 212Z. (1) of the Constitution is in progress and work has commenced on the preparation of a strategic plan and operational plan for the Commission and its Secretariat.”
Furthermore, following a detailed review of the applicable legislative framework, the Commission said that it engaged several stakeholders within the national procurement system to sensitize them to the role and functions of the PPC.
Some of the agencies engaged thus far include The Audit Office of Guyana, Public Accounts Committee, National Procurement and Tender Administration Board (NPTAB), Ministry of Finance, Ministry of Public Infrastructure, Ministry of Education and the Inter-American Development Bank (IDB).
Ultimately, in fulfillment of its mandate, the PPC said that it intends to engage all procuring entities across Guyana.

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