The PPC has implied adjudicatory powers

Apr 23, 2024 Features / Columnists, Peeping Tom

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Kaieteur News – Just recently, the PPC determined that it does not have the authority to vitiate a contract which was awarded in breach of the country’s procurement rules and laws. This decision has led to an accusation that the PPC is toothless.

In this column, I wish to argue to the contrary. I wish to suggest that the PPC does indeed have implicit powers of sanction and compulsion, including to reverse an award granted by the National Tender Board Administration (NTBA).

The Constitution of Guyana makes provision for the establishment of a Public Procurement Commission. The PPC is an established, independent body that is required to act fairly in the discharge of its mandate.

The Constitution details the functions of the PPC. Its mandate encompasses various key functions aimed at monitoring and reviewing procurement processes to ensure compliance with legal frameworks and policy guidelines established by the National Assembly. This involves promoting awareness among suppliers, constructors, and public bodies regarding procurement rules and procedures while safeguarding the national interest and considering international obligations.

The PPC monitors the performance of procurement bodies, ensuring efficiency in procuring goods and services, and oversees the execution of works, while also approving procedures, disseminating rules, and recommending modifications to enhance the procurement process. The PPC also serves as a watchdog, monitoring legislation, policies, and measures for compliance and reporting the need for any necessary legislative changes to the National Assembly. It conducts reviews of procurement procedures at various levels of government entities and project execution units, investigates complaints from suppliers, contractors, and public entities, and proposes remedial actions as needed.

It is this mandate to propose remedial actions that may have led to the false conclusion that the PPP/C lacks the power to sanction procurement entities and to vitiate contracts awarded. It should be noted however that the PPC does have the power to investigate cases of irregularity and mismanagement. More importantly, it can liaise with relevant authorities such as the police and the Auditor General to ensure the efficient discharge of its functions.

While the Public Procurement Commission (PPC) has the authority to liaise with bodies such as the police and the Auditor General, this does not imply that it can delegate investigations to these entities. Instead, the PPC’s function to liaise serves to facilitate communication and collaboration with relevant authorities in matters related to public procurement. However, the PPC should retain its own investigative role, allowing it to independently investigate complaints, cases of irregularity, and mismanagement within procurement processes.

Nevertheless, when the PPC encounters possible criminal conduct during its investigations, it can and should draw such matters to the attention of both the police and the Auditor General. It is up to these bodies to determine what action they will take.

A narrow interpretation of the relevant provisions of the Constitution relating to the functions of the Public Procurement Commission may lead to the conclusion that the PPC is not empowered to enforce its own decisions and to take actions to annul contracts awarded.  The provisions speak to the PPC proposing remedial action.

When the Constitution mandates the Public Procurement Commission (PPC) to propose remedial action, it primarily refers to actions aimed at rectifying deficiencies within procurement systems, rules, and regulations. This responsibility inherently falls within the realm of the Executive branch. It is the Executive which is responsible for the implementation and administration of government policies and procedures. Therefore, the PPC is precluded from directly ordering specific changes in policies and laws since to do would be to trespass on the inherent jurisdiction of the Executive. This is why, in instances relating to systems, laws, rules and regulations, the PPC can only recommend adjustments or improvements to procurement processes.

However, when it comes to instances of fraud or breaches of procurement laws, it would be an anomaly for the PPC not to have the power to recommend criminal investigations or specific actions to be taken. In such cases, the PPC’s role extends beyond mere recommendations. It must in these instances advocate for legal consequences against individuals or entities found to have engaged in unlawful activities. In this way, the PPC upholds its overarching mandate to ensure the integrity and legality of public procurement practices.

This would be consistent also with a broader interpretation of the Constitution. A broader interpretation of the Constitution is permissible to allow for upholding the fundamental principles and values enshrined within the document, promote justice, equality, and the rule of law, and adapt to changing societal needs and circumstances.

A broader interpretation of the relevant provisions of the Constitution would suggest that the PPC does have powers of sanction. How so? The Constitution makes provision for a Public Procurement Commission Tribunal. In fact, a law was passed and assented to by then President Bharrat Jagdeo. The country’s highest law makes provision for the establishment of a Tribunal to review the decisions of the PPC, with even subjects these decisions of the Tribunal to judicial review. Why would there be a tribunal established to review the decisions of the PPC if the PPC decisions were not adjudicatory and enforceable?

This provision for the establishment of a tribunal suggests that the PPC has adjudicatory powers and therefore can and does have the power to make orders, including invoking sanctions on procuring entities and individuals, including vitiating contracts awarded in breach of the procurement rules and regulations.

(The views expressed in this article are those of the author and do not necessarily reflect the opinions and beliefs of this newspaper and its affiliates.)

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• implicit, National Assembly, National Tender Board Administration (NTBA), Public Procurement Commission, sanction

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