Procurement bill for parliament despite opposition reservations

Procurement bill for parliament despite opposition reservations
Composition of board still contentious
By Patrick Denny
Stabroek News
June 19, 2003

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The government has assured some members of the parliamentary opposition that it will look again at the composition of the Board for the National Procurement and Tender Administration, the bill for which comes up for debate today.

Nevertheless, Trade Minister, Manzoor Nadir says the government intends to go ahead with the second reading and passage of the Procurement Bill 2003.

Nadir, in explaining the government's push to have the bill passed today told Stabroek News that the government had given a commitment to the international funding agencies.

The passage of the bill is a condition for World Bank funding for the Government's Poverty Reduction Programme. If the bill is not passed by the end of the month, US$30M in funding could be jeopardised.

The bill will repeal the Procurement Act 2002 about which the main concern was the composition of the Board.

Another concern at that time was the public sector having five persons nominated by the Minister on the seven-member board rather than allowing him to go outside of the public sector to find nominees. There was also concern about the provision relating to the private sector nominating two members. The Building Forum, a lobbying group for the engineering and construction sector, proposed that groups of private sector organisations and the University of Guyana should be asked to name representatives from the private sector to be chosen.

These same concerns are being raised again about the present legislation.

Nadir, together with Finance Minister Saisnarine Kowlessar and Chief Parliamentary Counsel Cecil Dhurjon, met on Monday with GAP/WPA parliamentarian Sheila Holder and PNCR back-bencher James McAllister in an effort to resolve their parties' concerns about the bill.

Notwithstanding the government's haste, the Second Reading of the bill could flounder on a procedural rule, which requires the bill to be published in the Official Gazette at least seven days before it is read a second time in accordance with Standing Order 46(3). Opposition parliamentarians have pointed out that it has not appeared in the gazette since it was published on May 30 for general information. It has been pointed out to Stabroek News that the bill was part of the Legal Supplement of the gazette dated May 30, 2003. How-ever, a number of parliamentarians and law firms who receive the gazette and its supplements told Stabroek News that they had not received the supplement which was supposed to include a copy of the bill.

The First Reading of the Bill was on June 5 but it was only circulated to members of the Assembly living in Georgetown and its environs last weekend and it is unlikely that parliamentarians in outlying districts have received their copies yet.

Proposals
Nadir said there were two proposals for constituting the board one of which required the Minister of Finance to appoint four members of the seven-member board with the other three being appointed by the private sector. The other proposal was that the Minister should not appoint more than five members and the private sector not more than three of the seven-member board. Nadir said this would allow for the Minister to access those skills not available in the public sector.

He said there were other concerns but that these were related to operational matters and some with regard to legal interpretations. But he stressed that in the end it was the government's call to push ahead.

One provision that has to be legally interpreted, according to McAllister, is 53(4), which provides for a three-person Bid Protest Commit-tee, comprising a member appointed by the Minister; one by the association appearing to the Minister to represent contractors; and one by the Attorney-General, all of whom must be professionals competent in the field of procurement.

McAllister pointed out that the Constitution provided at Article 223(F) for the Public Procurement Commission (PPC) to "investigate complaints from suppliers, contractors and public entities and propose remedial action." He said as a consequence the provisions conflicted with the Constitution and the presumed role of the PPC.

Holder, in a letter to the Finance Minister reiterating the concerns she raised at the meeting, said that section 17 should be deleted and all relevant sections therein replaced with the PPC as the responsible authority to exercise jurisdiction over the National Procurement Administration Board and the entire tendering system as stipulated in Article 212 AA (1) of the Constitution. She also suggested that the issue should be referred to a Select Committee.

Nadir dismissed concerns about the Board having to report to the minister explaining that there had to be a functionary through whom the agency would report to parliament. Opposition parliamentarians want the board to report to parliament through the PPC.

A concern raised during the debate on the 2002 legislation by GAP/WPA MP Shirley Melville, who with ROAR's Ravi Dev, were the only opposition parliamentarians present because of the then PNCR boycott, was the appointment of the chairman of the regional tender boards by the National Board. She proposed that the Regional Democratic Councils should nominate the chairmen of the regional tender boards. The present legislation does not address this concern.

Continuing concerns
The representatives of the Building Forum, the other group, which the Ministers met with on Monday, listed in a press release their continuing concerns about the bill. These include the role of the Cabinet in the award of tenders, as the Forum believes that the PPC must be the only awarding authority for public procurement.

Another of the Forum's concerns is that the Public Procurement Commission should be the body to review and monitor the awards made by the various procurement committees. Also, the Forum contends that the procurement committees below that of the national committee should comprise seven members (not five as stated in the bill) with a maximum of four from the public sector and a minimum of three from the private sector.

It also wants representation from the private sector to be accorded to institutions, such as the Georgetown Chamber of Commerce and Industry and the Guyana Association of Professional Engineers, which would appoint and rotate its representatives.

The Building Forum says the registration laws for contractors, engineers and architects and institutional arrangements for local content (participation) in contracts awarded to foreign contractors, need to be concurrently addressed with the legislation.

Monday's meetings were part of a series of consultations on which the government embarked to meet criticisms by the World Bank that the 2002 Act that was being repealed was not based on public consultations.

Other deficiencies of the 2002 Act that the World Bank cited were that further centralisation of the tendering process to a National Board (which replaced the Central Tender Board) allowed for Cabinet intervention in the approval process and that the Act failed to mention the role of the PPC.

The legislation due for discussion today provides for certain functions to be carried out by a National Board to be passed to the PPC when it comes into being.

The Public Accounts Committee of Parliament is considering the nominations for membership of the five-member board and the parliamentary opposition is concerned that the government should not delay the constitution of the board.