All financial breaches and other irregularities in government must be thoroughly investigated
Guyana
We are on a fast track to climate disaster. Major cities under water. Unprecedented heat waves. Terrifying storms. Widespread water shortages. The extinction of a million species of plants and animals.
United Nations Secretary-General António Guterres
According to the World Meteorological Organisation, there is now a 50-50 chance that the global average temperatures will exceed 1.5° Celsius above pre-industrial levels within the next five years, compared with last year when they were assessed at 40 percent. Scientists have long warned that exceeding the 1.5° Celsius threshold set by the 2015 Paris Accord on Climate Change will result in ‘in a cascade of climate catastrophes, including dramatic sea level rise, prolonged drought, crop failures, increased wildfires, more damaging tropical cyclones, unprecedented flash flooding and deadly heat waves’. Oceans will continue to become warmer and more acidic, and sea ice and glaciers will continue to melt. (https://www.dw.com/en/global-warming-world-has-50-50-chance-of-hitting-15c-mark-soon/a-61743456). In Australia, 91 percent of the Great Barrier Reef surveyed recently exhibits some form of bleaching. (https://www.cnn.com/2022/05/11/australia/australia-great-barrier-reef-bleaching-climate-intl-hnk/index.html#:~:text=The%20report%20surveyed%20a%20total,multiple%20reefs%20in%20all%20regions).
Parts of Pakistan and north-west India are experiencing temperatures of more than 50° Celsius; while in the city of Durban in South Africa there was severe flooding due to intense rainfall that caused the death of 435 people. According to a recent study, such an occurrence can now be expected to happen in various parts of South Africa every 20 years, instead of 40 years, as a result of human induced greenhouse gas emissions. (https://ca.yahoo.com/finance/news/global-warming-made-africas-recent-110000082.html).
Our last two articles dealt with certain breaches in the Fiscal Management and Accountability (FMA) Act over the years, especially the acceleration of expenditure in the last quarter of the fiscal year to exhaust budgetary allocations; and the drawing of cheques close to year-end although value or full value was not received at the time. We referred to the 57 contracts that a Cabinet sub-committee had approved on 30 December 2019 as well as the statement by a senior government official that the funds to be used to execute the contracts were provided for under the 2019 Estimates. While this may be true, the Act specifically requires all unspent balances at the end of each fiscal year to be refunded to the Consolidated Fund; and the expenditure of all roll-over projects has to be re-budgeted for in the next fiscal year. In all probability, most of the 14,137 cheques valued at $16.0 billion drawn on 31 December 2019 were in relation to these contracts. We indicated that if a full and comprehensive investigation of these contracts is carried out, it would be most revealing as to the extent of the breaches in the FMA Act, the Procurement Act and the Stores Regulations, and whether full value was received in relation to outputs, outcomes and impacts.
The other issue raised last week was the incurrence expenditure during the period January-August 2020 in the absence of an approved budget. Article 218 of the Constitution specifically prohibits expenditure of public moneys unless authorized by an Appropriation Act, as reinforced by Section 16 of the FMA Act. Article 220, however, does allow the Minister to authorize withdrawals from the Consolidated Fund for the first four months to meet the cost of essential services, pending the approval of the Estimates. There is no provision for access to the Fund beyond this period. It was not until September, following the change in government, that the Estimates for 2020 were approved. Therefore, all withdrawals from the Consolidated Fund to meet expenditure during the period May-August 2020 would have been devoid of constitutional/legislative authority.
In 2014, the National Assembly had reduced the Estimates by $36.747 billion based on a ruling of the Chief Justice. The then Administration went ahead in defiance of the wishes of the Assembly and restored parts of the Estimates. As a result, expenditure totalling $4.544 billion was incurred for the first half of 2014 without parliamentary approval. When the related Financial Paper was presented to the Assembly for covering approval of the expenditure, the Assembly declined to do so, and a motion for a vote of no confidence in the Government was tabled. In February 2015, the Chief Justice ruled that the Administration’s action violated the Constitution.
The above two incidents raise the important question of whether we should not reintroduce the comptrollership function as part of the duties of the Auditor General in order to provide independent assurance that all releases of funds from the Consolidated Fund are supported by appropriations authorized by Parliament and other constitutional/legislative means. In Jamaica, for example, the Auditor General is required to authenticate all warrants for the issues of moneys from the Consolidated Fund. The same applies to UK’s Comptroller and Auditor General. When we were a British colony, the comptrollership function was vested in the Director of Audit. Regrettably, after Independence, this important safeguard was dispensed with.
Procurement of goods/services
and the execution of works
The Procurement Act 2003 regulates the procurement of goods, services and the execution of works in order to promote competition among suppliers and contractors as well as fairness and transparency in the procurement process. The Act, which replaced the Tender Board Regulations, outlines the procedures to be followed in relation to: (i) open tendering; (ii) restricted tendering; (iii) requests for quotations; (iv) single source procurement; and (v) procurement through community participation. Each of these forms of procurement has its own authority limit and level, with the National Procurement and Tender Administration Board (NPTAB) at the apex. However, all proposed contracts in excess of G$15 million require “no objection” from the Cabinet whose involvement was to have been progressively phased out upon the establishment of the Public Procurement Commission (PPC). However, action is yet to be taken in this regard.
The PPC was established by the constitutional amendment of 2001 to, among others, monitor and review the functioning of all procurement systems to ensure that they are in accordance with law and such policy guidelines as may be determined by the Assembly. It, however, took 15 years for the first Commissioners to be appointed. The Commission’s life ended in October 2019 but two of the five members were granted a one-year extension. Although new Commissioners have since been identified, the Assembly is yet to approve of their appointments.
Over the years, numerous procurement breaches occurred at various Ministries/ Department/Regions, with little or no evidence of any action taken against the concerned officials. Shown below are some of the breaches, as gleaned from the executive summaries of the Auditor General’s reports.
1995: Significant breaches in the Tender Board Regulations were observed, especially at the Guyana Defence Force, Ministry of Health, and Regions 3, 5, and 9. As a result, it could not be satisfactorily determined whether full value was obtained for the goods/services procured and works executed. The report strongly recommended that appropriate sanctions be taken against officers who were involved in a deliberate manipulation of the Regulations.
The Central Tender Board (CTB), the predecessor of the NPTAB, was not functioning in a manner so as to facilitate an independent review. The record-keeping and filing were completely neglected and, in particular, the minutes of the various meetings held to adjudicate on the award of major contracts were not available. Recommendations were made for a complete re-organisation of the operations of the CTB, especially as regards its composition so as to enable an appropriate balance between private sector/civil society representation and that of the public sector to be achieved, with the chairperson coming from the former.
Section 16 of the Procurement Act 2003 now provides for the appointment of members of the NPTAB – not more than five persons from the Public Service; and not more than three persons from the private sector after consultation with their representative organizations. The chairperson must be a full-time member. The current Board comprises seven members, with the chairperson being a senior official of the Ministry of Finance responsible for the monitoring of the execution of the Government’s infrastructure development projects. In September 2020, the then Minister responsible for Finance had indicated that the chairperson’s appointment would be a temporary one. Since then, no action was taken to regularize this obviously undesirable situation.
2001: Significant breaches in the Tender Board Regulations at the Guyana Defence Force were again drawn to attention. These included the absence of a system of competitive bidding and numerous instances of contract-splitting to avoid adjudication by Departmental Tender Board and/or the CTB. The former’s involvement appeared to be mere cosmetic to facilitate payments by the Sub-Treasury. Similar breaches occurred at the Supreme Court of Judicature, especially contract-splitting. In relation to the Ministries of Agriculture, Public Works & Communications, and Home Affairs, the basis of the award of several contracts adjudicated by the CTB could not be determined because of the unavailability of the related files.
2010: Amounts totalling $1.252 billion were paid to New GPC for the procurement of drugs and medical supplies based on the sole sourcing method approved by the NPTAB instead of open tender. Similar observations were made in relation to the Georgetown Public Hospital Corporation and the Ministry of Education Book Distribution Unit.
2017: In Regions 5 and 6, several contracts were awarded using restricted tender approach instead of open tender; while in Region 2, some contracts were incorrectly awarded using the 3-quote procurement method.
2018: In Regions 1, 5, 8, 9 and 10, several contracts were awarded using the restricted tender approach instead of open tender. Some contracts were also incorrectly awarded using the 3-quote method.
2019: In Regions 1, 2, and 6, and seven Ministries/Departments, contracts were awarded using the single source and restricted tendering methods instead of open tender.
Stores Regulations
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