Procurement commission abdicating responsibilities – AFC

-cites constitutional provision

The Alliance For Change (AFC) on Monday criticised the Public Procurement Commission (PPC), accusing it of abdicating its responsibility in probing a recent complaint by Akamai Inc and ignoring its powers as accorded by the Constitution of Guyana.

Responding to statement from the PPC on Sunday criticising AFC MP David Patterson, the opposition party charged that the Pauline Chase-led Commission which was established in July 2022 was ineffective.

Patterson had accused the PPC of “whitewashing” the complaint by Akamai Inc in relation to the award of line equipment. The PPC found that based on the information provided by the National Procurement and Tender Administration Board (NPTAB), Akamai had not been compliant with two requirements. The PPC made no attempt to interrogate the NPTAB or the evaluation committee that scutinised the bids and said that it currently did not have the legislation framework for this.

The AFC on Monday vehemently disagreed with this, pointing out that the previous PPC conducted investigations which entailed speaking to the NPTAB and the evaluation committees.

It said that the constituting and operationalizing of the PPC was one of the AFC’s demands of the 2011-2015 People Progressive Party/Civic (PPP/C) Government. Since then the AFC’s firm view was that a properly functioning and independent PPC would be able to curb fraudulent operations in the public procurement system, regardless of which administration was in power.

It said that the non-functioning of the PPC was one of the main reasons for the composing of a no-confidence motion against the PPP/C Government in 2014. The AFC noted that the country’s first Commission was established in 2016 under the Coalition Government and saw ground-breaking rulings, which included decisions adverse to the Government of the day.

“It must be reaffirmed that the last Commission (20162020), in their comprehensive investigation reports, interviewed not only the complainant but the head of NPTAB as well as the head of procuring agencies. They examined all the claims made by the Evaluation Committee in determining contract awards. And in some instances, the Evaluation Committee even agreed that their evaluation was flawed. The last Commission did not hide behind any excuses that it had no authority to engage the complainant in the investigative process”, the AFC said.

It charged that the current PPC investigative report on the Akamai Inc complaint is “despicably unacceptable”.

“It merely reaffirms NPTAB’s report without any scrutiny or examination as was done by its predecessor. It is incomprehensible that the current PPC has determined that it has no authority to even request complainants to substantiate information as to documentation provided at the time of bidding; nor obtaining responses from NPTAB or the procuring agencies to verify what those agencies are asserting”, the party said.

It said that it is alarmed at paragraph 25 of the PPC Summary of Finding in the Akamai case that: “The commission is cognizant that a record may not be accurate for a number of reasons, such as but not limited to, negligence on the part of the tenderer and or procuring entity, innocent but mistaken belief of submission and the misplacement of documents (intentional or unintentional). The forum for such settlement of such conflicts, should they arise would be the court. Unlike other enquiry bodies, the PPC is not vested at this time with the requisite enabling legislative framework to subpoena witnesses, administer oaths and or examine witnesses so as to arrive at a determination as a fact as to an act or omission relating to the record and where such responsibility lies.”

Responding to this assertion, the AFC said “This PPC has constructed walls to prevent it to proceed forward”.

By its own admission the AFC said that the PPC is acknowledging that there was a possibility of an intentional fraudulent act in the preparation of the evaluation report and which sought to disenfranchise a bidder.

“Yet they chose to avoid scrutiny as to whether there was fraud and simply adopt the report of NPTAB without scrutiny. This is an absolute abdication of the PPC’s powers and core functions as a scrutinizing body. The PPC’s rationale that it needs enabling legislation to do so is most illogical and against the grain of the constitutional provisions on the issue, namely, Article 212 DD: `The Commission may require any person or any entity, including a ministry or government department, to provide it with information (a) for the purpose of any investigation it is carrying out or proposes to carry out’”, the AFC pointed out.

In what is described as a bizarre move, the AFC said that the PPC last year sought external legal advice, at the cost of taxpayers US$4,500, to determine if it can carry out it functions. This is after legal advice was given by its legal department on the self-same issue.

The PPC seems still not to understand its functions vested in the supreme law of the land - the Constitution of Guyana, the AFC asserted.

The AFC added that the Commission must also state the report of any dissenting Commissioner. It said that in the Akamai case, the AFC-nominated Commissioner, Dianna Rajcumar, correctly wanted the complainant to be engaged in the investigation procedure before determining the report. The complainant in these circumstances should have been called and questioned. The PPC is an oversight body which should not reiterate the report of NPTAB but must carry out its investigation thoroughly with all parties in a complaint before the Commission, the AFC said.