Policy cannot override the law

Jun 22, 2025 Features / Columnists, Peeping Tom

---

Peeping Tom Column…

Kaieteur News – During last Thursday’s press conference, General Secretary of the People’s Progressive Party (PPP), Bharrat Jagdeo bragged about how more small contractors were being empowered under the PPPC government. This is how he explained how this was being achieved:

“We’ve just changed the system to empower small people and to give them an opportunity to implement programs that hitherto would have been done by a single individual. And that’s why we changed the system where contracts below $15 million for the road program are allocated on the basis of rates and not through a bidding system. Because if we have continued with the bidding system, just a few people would have won all the bids.”

Now Jagdeo and his government must explain whether there is a legal basis for this change of the system. He must also explain whether the changes made are in conformity with the Public Procurement Act.

The Procurement Act 2003 of Guyana mandates competitive bidding as the default method for procurement, but it also provides specific exceptions where competitive bidding is not required. It provides for open tendering and insists on an Invitation to Tender being published.

The Act allows alternative procurement methods under certain conditions. For example, ‘Restricted Tendering’ is permitted when goods and services are highly complex or specialized, available only from a limited number of suppliers.  For small contracts, a request for quotations made be made but this requires obtaining and comparing at least three quotations. This too is a form of competitive bidding but it is wholly unsuitable for small infrastructural contracts such as the building of community roads.

The Public Procurement Act makes competitive bidding mandatory unless an exception applies. So, what is the lawful exception that is being used by the government to allocate small contracts to persons?

The law suggests that the government cannot arbitrarily allocate contracts without a bidding process unless the contract falls under sole sourcing, restricted tendering, request for quotations, or community participation such as in interior regions where competitive bidding may be impractical.

Policy cannot override the law. Laws are binding legislative enactments passed by Parliament, whereas policies are administrative guidelines that must operate within the legal framework.

The Procurement Act 2003 explicitly mandates competitive bidding as the default method for government contracts and permits exceptions only under strict statutory conditions. If a government policy attempted to bypass these legal requirements—for example, by allowing direct contract awards without competitive bidding where the law does not authorize it—such a policy would be beyond legal authority. The rule of law demands that policy align with legislation, not the other way around.

While it may be laudable for the government to empower small contractors this must be done within the confines of the law. The government must therefore explain how its change of policy to empower small contractors is consistent with the Public Procurement Act.

The recent shift toward ‘allocating’ small contracts without competitive bidding, instead relying on a ‘rate system’ (e.g., a fixed price per meter of road), raises serious concerns about contractor competence, quality control, and long-term infrastructure sustainability.

Under this system, contracts are reportedly being distributed to thousands of individuals, as stated by Vice President Jagdeo. However, the absence of a proper bidding and evaluation process means there is no adequate vetting mechanism to properly ensure these contractors possess the necessary skills, equipment, or experience to execute works effectively.

Given the country’s historical shortage of qualified road-building contractors, this approach risks flooding the market with fly-by-night operators—individuals or companies hastily formed to exploit government spending without proven expertise.

Without a structured technical and financial evaluation of bidders—as required under of the Procurement Act 2003—there is no guarantee of quality workmanship. Poorly constructed roads will inevitably lead to premature deterioration, increased maintenance costs, and wasted public funds.

If overnight contractors lack proper machinery, engineering knowledge, or quality materials, the government may end up paying twice: first for substandard work, and later for repairs.

If contracts are awarded based on pre-set rates rather than merit, there is no incentive for contractors to improve efficiency or quality—they simply collect payment per meter, regardless of durability.

Jagdeo needs to be asked, “Has any independent assessment been conducted to verify the quality of works under this allocation system? The Procurement Act emphasizes fairness, transparency, and competition to prevent favoritism and ensure value for money. Yet, by removing competitive bidding, this new system of allocating contracts undermines accountability and opens the door to political patronage, inflated pricing, and corruption.

The rumour mill is rife with stories about persons who cannot even hammer a nail, forming a company, hiring an engineer and obtaining government contracts without ever having to lift a shovel. And many of them having completed a small road are able to go to the auto dealer and purchase a car with cash.

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

---

• Bharrat Jagdeo, Law, Peeping Tom, policy, PPPC

---