Cabinet’s no-objection

After great expectations that the installation of long-awaited Public Procurement Commission (PPC) would immediately relieve government of the responsibility of giving the green light to contracts over $15m, the public has now been told differently.

Perhaps wanting to ensure that none of its work is challenged, the PPC in a statement on Friday pointed to contradictions in the Constitution pertaining to when Cabinet should cease providing the no-objection following the formation of the PPC. Moreover, the PPC said there was no provision for it to take on the role of offering the no-objection and that such a function would encroach on its purely oversight responsibility.

The statement by the PPC is a lesson on the pitfalls of transforming the intent of the people into airtight constitutional language. For the better part of a decade, politicians have squabbled over the role of Cabinet in offering the noobjection to contracts and always with the belief that that function would come to an end at some point and the mantle would pass to the PPC. Unfortunately the language in which this section of the constitution is framed - the supreme law as it is - does not provide this fiat.

While the contradiction in the constitution has been recognised for some time, it is only now that it is being dissected and its implications weighed, as for more than a decade the country’s politicians failed in their duty to establish the PPC and begin testing its underpinnings. The present dilemma over the noobjection also underlines the failures of successive governments in setting up the standing committee on constitutional reform which was expected to address conundrums like this and other matters.

Given that the governing coalition and particularly one of its key partners, the AFC, had made the end of the Cabinet role in no-objections an article of faith, the government will be closely watched to see whether it diverts from this position. It must urgently address the way forward.

There is no doubt that the public procurement system has for years been riddled with rank corruption, breaches of good practice, delays and incompetence. Examples of these abound and there would have been a litany of complaints save for the fact that the complainants would have feared being victimised and that formal, trusted complaints mechanisms did not exist. Two recent examples however highlight the deep-seated problems besetting the procurement system and why radical changes are needed.

The first was the investigation of corruption in drug procurement. The special report that was compiled found that a bidder had compromised a Ministry of Public Health staffer and that senior officials had failed to perform key duties or had perhaps avoided these intentionally. It found that staff were not adequately skilled for their roles in what is a huge procurement sector and went as far as recommending the removal of the permanent secretary for deceptive testimony.

In the inaugural complaint to the Bid Protest Committee on a large contract for the supply of juice to the public school system, it was found that the evaluation committee had improperly excluded a key bidder on the grounds of prior performance. That part of the process has now been ruled null and avoid and legal advice now has to be sought on the way forward - extremely disruptive and avoidable had the rules been followed.

The public procurement system is in need of a vigorous shake up. It is clear that the point at which crookery can be introduced is at the level of evaluation committees that preside over bids. These committees should not be stacked with persons who can be potentially compromised. They must be composed of persons drawn from across all sectors, be knowledgeable in their respective fields and be rotated so that they cannot be targeted.

This is one of the first areas that the PPC should address and urgently. There have been questions about whether the PPC has a sufficiently broad challenge to warrant being a high cost, full-time body. It will have to convince the public of this and it must work diligently and expeditiously to address other issues such as how poorly performing contractors will be dealt with and examining the performance of regional and ministerial procurement entities. A lot of taxpayers’ money is at stake here in addition to the challenge of ensuring transparency and accountability in the procurement sector.