Law clear Cabinet should have no role on contracts now PPC in place - Nandlall
In light of the Public Procurement Commission (PPC) pointing to a conflict in the Procurement Act pertaining to Cabinet’s role in the no-objection to contracts over $15m, the People’s Progressive Party says that while the section could be ambiguous it is clear that Cabinet should have no role.
“While the party has not discussed the matter, the party’s position is that Cabinet’s role should cease,” former People’s Progressive Party (PPP) Attorney General and current legal spokesperson of the party Anil Nandlall, told Stabroek News.
“Therefore, I cannot imagine that the party would be opposed to any initiative that will ensure that cabinet relinquishes its role in the award of contracts”, he said.
While it was in office, the PPP/C had strongly lobbied to retain the no-objection to contracts even upon the formation of the procurement commission.
Nandall was at the time discussing his party’s position on a five-page statement released by the PPC last Friday. That statement made clear that the PPC’s role was not to grant no objections to contracts and pointed out also that laws need to be harmonised as currently some pertaining to the commission, its work and procurement conflict with each other.
The PPC said that “Recent media reports suggesting that the continued role of Cabinet is linked to the PPC being `operational and functional’ are inaccurate and misleading as neither the Constitution nor the Procurement Act provides for the PPC to take over this function from the Cabinet.”
It contended that the awarding of contracts would be the responsibility of the procuring entities and the National Procurement and Tender Administration Board (NPTAB).
“The Constitution empowers the PPC to carry out oversight of the procurement system in Guyana and its functions are clearly outlined … None of those functions provides for a `No Objection to Contracts’ role for the PPC. Indeed, it is the view of the Commission that such a role would entrench the PPC as an integral part of the procurement process, which it is intended to monitor and regulate,” the PPC’s statement asserted.
It also adverted to a conflict in Sections 54 (1) and 54 (6) of the Procurement Act.
Section 54(1) states, “The Cabinet shall have the right to review all procurements the value of which exceeds fifteen million Guyana dollars. The Cabinet shall conduct its review on the basis of a streamlined tender evaluation report to be adopted by the authority mentioned in section 17 (2). [i.e., the NPTAB and after its establishment the PPC]. The Cabinet and, upon its establishment, the Public Procurement Commission shall review annually the Cabinet’s threshold for review of procurements, with the objective of increasing that threshold over time so as to promote the goal of progressively phasing out Cabinet involvement and decentralizing the procurement process.”
The PPC said a literal interpretation of this section clearly indicates that the review role of Cabinet should continue even after the establishment of the PPC, with an annual review by the PPC of the threshold so that over time, by raising the threshold, the role of Cabinet would be eliminated.
However, the PPC noted that Section 54 (6) provides as follows: ‘Cabinet’s involvement under this section shall cease upon the constitution of the Public Procurement Commission except in relation to those matters referred to it in subsection (1) which are pending.’”
It said a literal interpretation of this section directs the immediate cessation of Cabinet’s role once the PPC is constituted. The PPC said that neither section however, provides for the PPC to take over that function from Cabinet. It added that the role of the PPC is limited to approving the format of the streamlined report to be sent to Cabinet and if all of section 54 (1) is to prevail, reviewing the threshold of the value of contracts to be reviewed by the Cabinet.
“Based on the foregoing, the Commission is not empowered by the Constitution or the Act to grant no objection or to award contracts. The awarding of contracts is the responsibility of the Procuring Entities and the [NPTAB]. These agencies are responsible for the public advertisements of contracts, evaluation of bids and ultimate approval and award of contracts,” it asserted.
Agreeing with most of what was said in the statement, Nandlall said that he could not however agree with the PPC’s interpretation of Sections 54 of the Procurement Act. “I will concede that those two sections could have been better drafted. When read literally, they appear to be ambiguous and can even lead to an absurdity. There is a canon of interpretation of statutes which prescribes that when the literal language of a statute leads to ambiguity or absurdity, then the reader is obliged to go behind the literal language in order to decipher the real intention of the draftsman. If this purposive approach is used, one ought to find that the clear intention of the draftsman was for cabinet’s role to cease upon the coming into operation of the PPC,” Nandlall posited.
Further adding, “When reference is made to ‘matters… which are pending’ in Section 54 (6), it obviously mean contracts that were pending before Cabinet awaiting its no objection, prior to the PPC being appointed. The relevant Hansards capturing the debate in the National Assembly in respect to the Procurement Bill can be consulted and I am sure it will support my interpretations. In my view, the time would have long expired for Cabinet to complete its consideration of those pending matters. Therefore, Cabinet’s non-involvement in contracts should have long come to an end.
He said that while in opposition Leader of the Alliance for Change Khemraj Ramjattan and members of the APNU were very clear in the interpretation of Section 54 and maintained that once the PPC becomes operational, Cabinet’s role will come to an end.
“They said that throughout the campaign, they made the establishment of the PPC platform promise for precisely this reason why now do they want to continue Cabinet’s role. They gave dozens of reasons why Cabinet should play no part in the award of contracts. In their view it was an act of corruption. Do they wish to continue this corruption?” Nandlall questioned.
He said that the coalition gave the public a flawed and misleading impression that the PPC is the panacea for everything that is wrong with public procurement in Guyana and that once it was established then all problems in relation to public procurement will disappear. “However, as pointed out by the PPC this has proven not to be true but the current government is silent,” he said.