Law to debar errant contractors coming by year end - Corbin
The Public Procurement Commission (PPC) hopes that by the end of this year debarment legislation would be in place as it will soon begin meeting with stakeholders on a draft.
“We have a draft of the debarment legislation. We have reviewed it to ensure it reflects the current situation where the PPC has been established… and it will be the PPC’s role to execute the process, Chairman of the PPC Carol Corbin told the Sunday Stabroek in an interview last week.
Last year, National Procurement and Tender Administration Board (NPTAB) head Berkeley Wickham had said that it was his agency that would be responsible for taking the consultancy aspect of the process to finality but Corbin said last week that she anticipates that the PPC would complete the process. Corbin explained that because the PPC was not established at the time the Inter-American Development Bank (IDB) funded the project, it was executed by the NPTAB.
“There is a component under the Public Procurement Modernisation and Financial Strengthening Programme signed between the GoG [Government of Guyana] and the IDB, which will provide a legal consultant to review the procurement, legal and regulatory framework,” Wickham had explained.
Both regional and local companies and individual contractors, who have been blacklisted by the IDB and those found errant in works executed, have continued to bid here for projects. However, the government, the PPC and the NPTAB say there is nothing they can do to stop them from bidding as there is no law here catering for blacklisting.
Blacklisted
Only recently, the IDB blacklisted contractor Vevakanand Dalip Enterprise and its principal Vevakanand Dalip for 13 years from bidding for its projects over alleged fraudulent and collusive practices. This company has bid for numerous contracts here over the past few years and won a number of them.
In 2016, Trinidadian firms Scientific and Medical Products Limited (SciMed) and Western Scientific Company Limited were also blacklisted by the IDB but continued to bid here, with the latter company winning hundreds of millions in contracts.
Western Scientific was also named in the Ministry of Public Health’s Board of Inquiry (BoI) into allegations of mismanagement and malpractices in the procurement of pharmaceuticals at that ministry. The BoI recommended that the firm be debarred for a period from being able to bid here. The BoI had pointed also to the uncooperative and “hostile” nature of the firm’s head, Edwin K Mackoon. The BoI also recommended that legal advice be sought over the reviewing of contracts awarded to the Western Scientific representative.
When Corbin was asked about barring errant contractors, she had explained that there was no debarment law in Guyana to guide evaluators. This position has been echoed by government and by the NPTAB.
“There is no debarment law established which allows the entities to blacklist the contractors. They [the procuring entities] have to operate within the law. So if they do not select a contractor and they say it is on the basis of them committing some fraud or something of that nature, suppose that contractor carries them to court? What will they resort to?” Corbin stated.
“But in all fairness to them, an entity should access all relevant information when they are evaluating tenders but you can only evaluate based on what is in your tender document and your evaluation criteria. So, if the evaluation criteria don’t include a specific reference to your due diligence about specific contractors, your evaluators won’t be able to substantiate any decision that they make. They can only work with what is in front of them and those would be the evaluation criteria,” she added.
From the NPTAB’s end, Wickham said that while there is no law, certain measures could be used during evaluation of the tenders.
“You can’t stop anyone from bidding. Tenders are open to the public…. You can’t just get up and debar a person like that. It is not done like that. First of all, there is no debarment procedure. But while there is no procedure, there are certain clauses in the evaluations, such as if you have litigation pending, past performance, the number of contracts you have and would have completed… all those things can be taken into consideration during the evaluation criteria,” he explained.
Addressing the qualifications of suppliers and contractors, the Procurement Act states at Section (5) (1) that every supplier or contractor wanting to participate in procurement proceedings must qualify by meeting specified criteria. The criteria include that the supplier or contractor is not insolvent, in receivership, bankrupt or being wound up; that its affairs are not being administered by a court or a judicial officer, its business activities have not been suspended, and it is not the subject of legal proceedings for any of the foregoing; that it has fulfilled its obligations to pay taxes and social security contributions of its employees; that it has not, and its directors or officers have not, been convicted of any criminal offence related to its professional conduct or the making of false statements or misrepresentations as to its qualifications to enter into a procurement contract within a period of ten years preceding the commencement of the procurement proceedings, or has not been otherwise disqualified pursuant to administrative suspension or debarment proceedings in this or other jurisdictions over the last three years.
‘Consultations’
Corbin assured that “definitely this year” the draft will be sent to the Attorney General for necessary action.
That would include tabling it as a bill and taking it to the National Assembly for passage.
“A consultant had already drafted the debarment procedures. So, we received that draft from the Ministry of Finance. We have gone through it, we have done the revisions that we think were necessary to reflect our role in the process and are now ready to set up a set of consultations with stakeholders” she said.
“Definitely this year. We need to have our first meeting with stakeholders and that is NPTAB. We will also have stakeholder meetings with procuring agencies and set up stakeholder meetings with contractors,” she added
Corbin said it was only last week that she was discussing with members of the PPC the need for stakeholder meetings to be initiated soon. She assured that contractors will be informed when their stakeholder outreaches will be held as there will be public advertisements though various mediums. “You will be seeing that [advertisements] relevantly soon. But, of course, you have to remember that when that is finished it has to go to the Attorney General’s office to go through that process so that it could be taken to the National Assembly and be put as law,” Corbin said.