Trinidad and Tobago
PUBLIC bodies that have breached the laws in the Procurement Act should be charged, past president of the Joint Consultative Council for the Construction Industry (JCC) Afra Raymond has said.
Raymond made the comment on Monday while speaking at part two of the Caribbean Corporate Governance Institute (CCGI) Virtual Procurement Series.
His statement came on the heels of the first report of the Office of the Procurement Regulator (OPR) which was laid in Parliament last week.
The Public Procurement and Disposal of Public Property Act, 2023 became law last year.
The report found more than 60 entities in breach of the law, Procurement Regulator Beverly Khan stated.
Apart from Raymond, managing director of Raymond and Pierre, the virtual series which focused on the implications of the procurement law, included attorney Kelvin Ramkissoon, JCCI president Fazir Khan, and manager of Contracts and Procurement National Gas Company (NGC) Keith London.
Raymond commended the OPR for its work in producing its first comprehensive report, but underscored that more needs to done. He said it is critical to level charges against those found in breach of the law.
“I was staggered to see that you have organisations like UDeCOTT (Urban Development Corporation of Trinidad and Tobago), HDC (Housing Development Corporation), NIDCO (National Infrastructure Development Company), with apparent breaches in terms of their reporting. These are mainline organisations that have huge budgets running into the billions of dollars.
“These are not small-time organisations. We have the Tobago House of Assembly (THA). From what I can glean from the report, there is a gap in its compliance, a serious gap in its compliance with the provision of the act.”
He added that entities such at the North West Regional Health Authority (NWRHA) also had gaps.
“We have the Ministry of Foreign and Caricom Affairs, we had Ministry of National Security, it was mentioned in the TV clip and then we have Tourism, Culture and Arts also having major gaps,” said Raymond.
He said the Procurement Regulator stated that “there were $5 billion worth of contracts awarded in the period under examination in an uncompetitive manner.”
“What is happening is that we have a challenge for the OPR; there is a challenge for how it has to work.”
Raymond said the question now is what should be done with these defects. “We established this body and we created this law to bring some order to a very disorderly part of our society, the challenge for the OPR staff is what do you do?”
Raymond recommended that in some of those organisations that are in breach, “charges need to be drawn up and made against them. Let us start with the simple ones.
“We already have a DPP (Director of Public Prosecutions)—and this is not me being personal, this is facts—that have tremendous difficulty in handling complex fraud and complex cases …that whole question of white-collar crime befuddles a lot us. So, the whole of CLICO (debacle) took place, the report was published in Parliament …. eight years ago, and the DPP still studying the report.”
He questioned where the country is at where this matter is concerned.
Raymond believes the OPR must start with simple consequences to show its level of seriousness to those in breach.
Charge those who failed to file
For instance, he said, entities that did not file the name of their procurement officer, “the people who didn’t give their quarterly report, they need to be brought up on charges and those charges need to start.
“The OPR needs to start doing the second part of its work. We do the training, the report is finished and now that we have these findings, we need to advance to the next stage.”
Focusing on the actual Act, Raymond pointed out that it includes “some tremendous strengths” adding that the Act was amended by the politicians and reduced in scope.
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Guyana
The government is keen on empowering contractors needed to execute its ambitious developmental drive but amid concerns over the capability of at least one new company, Vice President Dr. Bharrat Jagdeo says a rigid evaluation criteria should be in place.
“… Clearly, we have to ensure that there is no arbitrariness in the application of evaluation criteria and if you know that the market doesn’t have enough bidders… you have to craft the evaluation criteria in a manner that would allow you to stick rigidly with it,” the Vice President said on Thursday.
He was responding to questions raised about the contract awarded to the Tepui Group for the construction of a pump station at Belle Vue, West Bank Demerara during his weekly press conference.
Already, the government welcomed the Public Procurement Commission’s (PPC) review of the contract and said it remains committed to accountability and transparency in public spending even as it makes a deliberate effort to help build local capacity.
Though acknowledging the situation with the Belle Vue project, the Vice President pointed out that projects executed by established, experienced contractors are also delayed because of the heavy workload now.
So he believes that rigid criteria could help to curtail delays and keep contractors, particularly new ones, in check.
Recently, Finance Minister Dr. Ashni Singh sought to explain to the public that the government is still keen on developing more local contractors to help meet the “tremendous demand” for contracted services locally.
According to him, the government’s accelerated development drive can quickly exhaust the long standing contractors.
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Guyana
The Public Procurement Commission (PPC) last December rejected a complaint by a bidder over the award of a project for the extension of the Fort Wellington Secondary School but the procuring entity, the Ministry of Local Government never provided any of the requested information for the investigation.
Bickram Motiram trading as Motiram Construction wrote a letter of complaint dated September 1, 2003 which was received by the PPC on September 6, 2003.
According to the PPC’s Summary of Findings dated December 29, 2023, Motiram alleged that at the tender opening, his bid was the lowest and that he had fulfilled all administrative requirements. He further submitted that he was “a well rounded and seasoned contractor with vast experience and resources which were all demonstrated and attached with [his] bid document.”
Motiram further acknowledged in the letter that he was cognizant that the National Procurement and Tender Administration Board (NPTAB) does not always award the lowest bidder but expressed frustration that his bid was overlooked for a higher bid and requested the reasons for this.
The commission said it reviewed the tender proceedings to determine whether there was any irregularity in the award of the tender.
In accordance with Article 212DD of the constitution, the commission on September 13, 2023, requested that the NPTAB submit to the commission within five days –
i. a copy of the record of the tender proceedings, including the Evaluation Report;
ii. confirmation as to whether the tender was awarded and if so, the date of publication on NPTAB’s website in accordance with S. 11 of the Procure-ment Act. If awarded but not published, the reason for not so doing;
iii. whether a copy of the Evaluation Report had been sent to the procuring entity for compliance with S. 39(3) of the Procurement Act, Cap. 73:05.
The Ministry of Local Government & Regional Development was similarly asked to submit-
i. a copy of the tender proceedings and Evaluation Report. If not in the possession of the procuring entity, why not.
ii. whether the procuring entity complied with S. 39(3) of the Pro-curement Act, Cap. 73:05, and it not, why not;
iii. confirmation as to whether the tender has been awarded;
iv. if the tender has been awarded, confirmation as to whether the contract had been entered into and if so, a copy thereof;
v. if the contract had been entered into, confirmation of whether the tender award decision was published on NPTAB’s website prior to entry into the contract;
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Guyana
Can it possibly be the case that the historic constitutional reforms of over two decades ago conceived of a Public Procurement Commission (PPC) that would be toothless?
Is it conceivable that upon examining a hopelessly flawed tender that the PPC would do nothing about an improperly awarded contract but offer sop to the public?
Well that is exactly how the Pauline Chase-led PPC has conducted itself in relation to the scandalous Tepui Inc contract for the building of a pump station at Belle Vue worth a grand $865m.
In our editorial of April 19, 2024, we asserted that the handling of the Tepui Inc tender by the National Procurement and Tender Administration Board (NPTAB), its evaluation committee and the procuring entity, the National Drainage and Irrigation Authority (NDIA) presents the starkest evidence yet of corruption in this government and an abomination that President Ali has to be held accountable for – the assigning of pump station contracts to unqualified bidders.
For its part, the PPC took all of six months to engineer an abject neglect of its duty to preserve the integrity of the tendering system and to ensure that unqualified bidders did not enter upon public works and thereby endanger public safety and the public purse. Acting upon a complaint by APNU+AFC MP David Patterson and requesting documents from the NPTAB and the NDIA but not receiving all, the PPC was able to determine that Tepui Inc did not qualify to tender for this contract. It had never built a pump station or any similar facility. It did not have a bank guarantee or bid security. Neither was it accoutred with all of the required equipment for the task before it. Tepui also did not submit – as required – an audited financial statement as it was not in existence for a year. Its tender should have been immediately ruled as non-responsive by the evaluation committee of the NPTAB but this was not done.
The PPC should have been suitably aghast at what it had discovered and summoned in sequence: the evaluation committee of the NPTAB, the head of the NDIA and the chair and Chief Executive Officer of the NPTAB for an explanation of all the transgressions. This was not done.
Instead, in a majority decision in its Summary of Findings, the PPC piteously stated that it was prevented from taking any action as a contract had already been signed. The PPC said “…on the entry into a contract, privity of contract issues arise. There is nothing within the statutory framework which permits the commission to revoke, rescind, recall and or in any way alter, suspend or stop the contract once entered”.
It later offered the gratuitous advice that the NDIA strictly monitor for performance and if Tepui is found in breach that the necessary steps including termination be taken if considered prudent.
The PPC’s outlook ignores the constitutional injunction that birthed it and which must endow it with the power to act on an improperly awarded contract based on a complaint before it.
212W (1) of the constitution says that the PPC “is to monitor public procurement and the procedures therefor in order to ensure that the procurement of goods, services and execution of works are conducted in a fair, equitable, transparent, competitive and cost effective manner according to law…”
212AA (1) (h) requires is to “Investigate complaints from suppliers, contractors and public entities and propose remedial action”. It is also required to investigate cases of irregularity and mismanagement and propose remedial action. Considering that the constitution envisages a tribunal to which PPC decisions could be appealed, it must mean that its decisions are intended to have teeth. Surely, even if it did not have the power to abrogate this contract it could have recommended and urged such to the procuring entity given the very egregious violations in the tender process. Otherwise, the huge public works tender system will become a supercharged swamp of corruption with the PPC completely ineffectual.
A reading of the Summary of Findings gives the distinct feeling that the PPC wants to appear to have done its task while in reality and practice being grossly derelict. Since its full composition in July of 2022, the PPC has pottered about as if it was not aware of the huge task before it. The PPP/C government is enamoured of constitutional bodies and watchdogs that it can control. If the government-nominated PPC commissioners recognise that they are unable to properly discharge their functions they must do the honourable thing and resign.
The evaluation committee of the NPTAB was required to adhere scrupulously to the evaluation guidelines in the tender but it failed to do this. This is exactly how the Bamia Primary School contract was given to entertainers and football promoters and why that project is mired in delays and other problems.
The procuring entity for the Belle Vue project, the NDIA, under the Procurement Act had the power to “…disqualify a supplier or contractor if it finds at any time that the supplier or contractor knowingly submitted information concerning the qualifications of the supplier or contractor that was materially inaccurate, incomplete, or false”. It neglected to do this and Cabinet also failed the due diligence task by giving the no-objection to a contract with a contractor who several of its members must have known had no contracting skills. A scandal all around. This Tepui contract, in the ignominious class of Fip Motilall’s road, must be cancelled and immediate steps taken to overhaul the NPTAB and its evaluation committees.
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Guyana
It took eight months for the PPC to throw out a complaint by R Kissoon Contracting Services over a bid for D&I pumps but more irregularities have surfaced in the tendering system including errors by the evaluation committee and the signing of the disputed contract on January 1st 2023, a national holiday.
R Kissoon complained to the Public Procurement Commission (PPC) on January 24, 2023 that its bids for the maintenance and servicing of drainage and irrigation pumps were unsuccessful even though they were the lowest for two lots and met all of the requirements. It said to the PPC that it had lodged a complaint with the National Procurement and Tender Administration Board (NPTAB) but had gotten no response within the statutory period. The Procurement Act requires the lodging of a bid protest with the procuring entity, in this case the National Drainage and Irrigation Authority (NDIA) and not the NPTAB.
In its Summary of Findings adopted on February 29th this year, the PPC said it nevertheless decided to investigate the matter given its wide constitutional mandate.
The PPC’s Summary of Findings is replete with instances where both the NPTAB and the NDIA ignored requests for crucial clarifying information.
The PPC discovered based on the documents submitted to it that the Evaluation Committee of the NPTAB said R Kissoon was non-responsive on three of the criteria and its bids were therefore thrown out. However, the PPC found that R Kissoon could possibly only have been deemed non responsive in relation to one guideline and had actually complied with the other two.
This discovery will raise further questions about the arbitrary conduct of the evaluation committees of the NPTAB and how certain contractors could be favoured over others. In a recent controversial case, despite having failed several guidelines, including the requirement to have previously built a pump station, the evaluation committee admitted the bid of Tepui Inc as responsive. Tepui was later awarded the contract and this has triggered a major controversy.
The PPC found that the complainant was deemed non-responsive by the Evaluation Committee for failing to satisfy three of the Evaluation Criteria – financial and technical, particularly – Criteria #9: Evidence of financial capacity representing (25%) for each individual lot. The bidder must provide a bank statement or line of credit from a bank or a recognized financial institution. The document must be dated within one month of the bid opening date and be clearly legible.
Included in the record of the tender proceedings submitted by the NPTAB to the commission, was a Statement from Republic Bank (Triumph Branch) evidencing a bank account balance of the complainant in the sum of $40,957,648. The statement was dated December 16th, 2022, that is, within one month of the bid opening on December 20th, 2022 as required.
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