Contractors, engineers to be held more accountable under updated procurement laws, contracts – AG

Contractors and engineers will be held more accountable under soon-to-be updated procurement laws and contracts, Attorney General Anil Nandlall has revealed.

During his programme “Issues in the News” on Tuesday, Nandlall said the government will soon start reviewing its procurement processes with the aim of updating and modernising the Public Procurement Act as well as bid documents and pre-contract documents that form part of the tendering process.

Additionally, he said the government will update the standard form contract in keeping with international standards.

“These contracts that are being used are not the most modern model contracts available. We have to review them to bring them in compliance with and in sync with the International Federation of Consulting Engineers models that are being used across the globe,” he explained.

According to the Legal Affairs Minister, a key focus of the review will be strengthening contractual provisions to ensure that contractors and engineers are held more accountable for fulfilling their obligations.

“We will review the regime of remedies that flow when there is a breach and we will strengthen the regime of remedies so as to offer to the State greater protection when there is breaches or non-compliance,” Nandlall affirmed.

“Significantly, the review will also be focused on the role of the engineer or supervisor of these contracts. These engineers and/or supervisors are paid huge sums of money to monitor and evaluate the performance of the contract for and on behalf of the State…They are supposed to police the contracts, monitor and evaluate the contracts and ensure that when there are breaches, these breaches are reported and are remedied under the terms of the contract,” the Attorney General added, acknowledging that many times, this does not take place.

He noted that, “unfortunately, invariably, these engineers and our supervisors tend to align their interests more with the contractor than the employer.”

“For example, instead of preventing and resisting attempts at variations in contracts that would inevitably result in an upward movement of the contract price, the engineers and our supervisors support the contractor’s request for an extension. Why? Well, I can’t say why, but the engineer and/or supervisor are paid based upon that increase. Their remuneration package is tied to a variation that necessarily increases the contract price and perhaps that is an incentive to give support. We have to ensure that that is reviewed, that state of affairs that I just outlined, a state of affairs that seem to reward rather than penalise a contractor for a variation,” Nandlall outlined.

He emphasised that the responsibility of the engineer/supervisor is to prevent such variations from taking place but instead, “the evidence will disclose that, invariably, they stand in support. And one can’t discount that one of the reasons that may be influencing that posture is a financial one, because when the variation is granted, the supervisor’s contract or the engineer’s contract is also extended.”

“That must be looked at,” Nandlall affirmed.

Meanwhile, he added that these reviews are necessitated by a recent ruling by the Caribbean Court of Justice (CCJ) in the case of Cara Investments Limited against Christopher Ram and the Bank of Nova Scotia. That decision, Nandlall highlighted, has implications for the public and private procurement system in the country.

“It has far-reaching implications and ramifications. And we have to adjust both the model contracts that we are using, our bid documents, and all pre-contract documents that are part of the tendering process, as well as we may have to amend our Public Procurement Act to take into account the practical and pragmatic realities of this decision from the court that sits at the apex of our judicial hierarchical structure,” he noted.