Letter: Unless PPC is given authority, it cannot cancel any contracts

The content originally appeared on: INews Guyana

Dear Editor,

The Public Procurement Commission’s publication of the report has sparked a deluge of commentaries from politicians, media personalities, and social media commentators. Based on their comments, I am convinced that most did not read the report. For instance, these individuals queried the PPC’s decision not to annul the tender proceeding when paragraph 22 of the report states the rationale for the decision.

In simple and easy-to-follow English, the PPC stated in the said paragraph that it was not permitted to ‘revoke, rescind or recall and or in any way alter, suspend the contract’ because of the doctrine of privity of contract. It is also noteworthy that the position taken by the current PPC is not new, but consistent with the stance adopted by the previous Commission, which conducted several investigations in the past but did not annul the procurement proceedings or penalise anyone.

A well-known example is the unsolicited tender taken by Mr David Patterson, former Minister of the Ministry of Public Infrastructure, to Cabinet for approval. In this case, the Minister and the entire Cabinet unlawfully entertained and awarded a contract to a consultant who was not invited to do so in clear breach of the Procurement Act 2003 and Procurement Regulations 2004. Notwithstanding the unlawful award of the contract, it was not annulled, and the PPC did not recommend penalties for anyone since the Procurement Act and Regulations do not offer any mechanism to discipline persons involved in procurement proceedings for wrongdoing except as provided for under Section 55 of the Act. Indeed, the Act lacks a dedicated section on offences that can be used by the PPC or any other authority to sanction persons for wrongdoing, except as set out in the section of the Act mentioned earlier.

We should also easily recall the infamous emergency procurement of pharmaceuticals and medical suppliers by the Georgetown Public Hospital Corporation (GPHC). In this case, the evaluation committee waived the evaluation criteria to award the contract to the selected supplier. It was alleged that a Minister influenced the selection of the successful bidder. Again, the former PPC did not rescind the contract since it had no power to do so under the Act or Regulations. Like the forgoing example, no one was penalised by the former PPC.Another case we should recall is where the Ministry of Public Health waived the evaluation criteria to procure drugs and medical supplies from HDM labs. The items were procured from HDM labs at prices significantly above those tendered by other bidders. Evidence in the procurement file also suggests a sitting Minister influenced the decision to select the preferred bidder. Again, the previous PPC did not rescind the contract or punish anyone for this mis-procurement.

Editor, the harsh reality is that the current Act and Regulations do not empower the PPC to annul active procurement contracts, especially when these contracts are protested by individuals other than the bidders who participated in the procurement proceedings. Additionally, the Act and Regulations do not provide the PPC with any mechanism to penalise anyone who participated in tender proceedings, which may be flawed or unlawful.I would like to offer some friendly advice to those who are attempting to use the Tepui contract for political gain. It’s important to understand that unless the PPC is given the authority through the enabling legislation, it will not be able to cancel contracts that have been improperly awarded or hold individuals responsible for such actions.

In this regard, if the commentators genuinely want to empower the PPC to cancel contracts that were not properly awarded, they should consider advocating for amendments to the relevant laws and regulations. Additionally, they should support the call to implement the recommendations in the PPC’s recently- published report by the concerned agencies. I am incredibly pleased with the commitment of the National Procurement and Tender Administration and the Minister of Finance to implement the PPC’s recommendations. I am equally happy to hear about the establishment of the Bid Protest Committee which will afford bidders another option for ensuring their bids or tenders are fairly considered.

Finally, in the interest of being fair to everyone, I would like to challenge those who are calling for sanctions and fair procurement also to demand (i) the submission of the accounting records for the Durban Park Development Project, which remains a mystery; (ii) the submission of the evaluation reports for tenders administered by the various regions during 2019; (iii) sanctions be imposed on all those who participated in the procurement breaches during the period 2015-2020 including Cabinet and former Ministers; and (iv) that the social commentators who participated in procurement breaches, including the illegally-awarded forensic audits and Demerara River Bridge Feasibility Study, to stop being hypocritical by pretending to be morally upright when they would have committed similar sins in the past.

Regards,Kevin Persaud