Procurement Regulator Moonilal Lalchan said Attorney General Reginald Armour has asked the Office of Procurement Regulation (OPR) to put together a timeline for the realistic proclamation of the Public Procurement and Disposal of Public Property Act.
The OPR and AG Armour met last Tuesday.
Lalchan told members of Transparency Institute, in a Zoom meeting on Thursday night, that the OPR board will meet next Wednesday to formalise the timeline.
And he’s optimistic it can be done in a reasonably short time.
“In September 2019, we would have written the Minister of Finance indicating which part of the legislation should be further proclaimed even though we did not have the regulations passed. The regulations have now been passed. The Attorney General has asked the office, in the meeting on Tuesday, to put together a proposed timeline for the full implementation including some of the concerns that were raised by the Chief Justice,” he said.
Lalchan said that the OPR’s proposals would address concerns raised by the Chief Justice “which we believe are not insurmountable and we can address those”.
Four weeks ago, in a statement to Parliament, Armour said that more consultation needs to be done before the Act can be proclaimed based on communication he received from the Office of the Procurement Regulation (OPR) and the Judiciary.
In the case of the OPR, he said they had communicated that “there is significant work to be undertaken to establish the required system and processes”.
In the case of the Judiciary, they wrote a 29 page letter to Armour, focused on their administrative capacity, in which it said it was generally unprepared at this time with resources.
Lalchan explained that since the office was set up they have faced delays in getting things done in a timely fashion.
1. He said that since September 2019, the OPR would have written to public bodies to complete their readiness assessment for full proclamation of the Act. However, almost four years later, only 72 public bodies out of 415 major public bodies have done so.
2. Also from 2019, public bodies and ministries were put on notice that a procurement officer needed to be named as the Government moved toward implementing the Procurement Act. Lalchan said to date, this “critical” appointment has not yet been completed. “To date, we have only gotten responses from 123 bodies to date,” he said. He noted that it’s the appointed procurement officer that the OPR would last with. “So we would have sent reminders to the named procurement officers, the accounting officers, permanent secretaries, continuously reminding us that you need that information to make sure that when we put together our procurement depository, we will have a contract person,” he said. In the absence of the procurement officer, the OPR has been using public bulletins. “We will state very clearly to the Attorney General, that that has to be done as a matter of urgency and it should have already been completed,” he said.
3. He said there are also regulations, Section 57 A of the Act, which deals with the disposal of real property that has to be placed to negative resolution in Parliament by the Minister of Finance.
“That has not been completed. So that itself would be another reason why that will be a delay in terms of the disposal of real property that the regulations have to be done by the Minister,” he said.
Ready for flood of requests
He noted that one of the areas of concern is the readiness of the office to deal with some of the complaints and challenges.
He said that ten judges from the judiciary had provided training to the OPR “so that we as a committee, constituted members of the board and management, could deal with these challenge proceedings”.
“Additionally, we have two judges from the Caribbean Court of Justice that worked with us. So I would say we are well prepared to take advantage and adjudicate on the matters that will come before the Office in the near future. So it’s not a matter of the office not being prepared,” he said.
He noted that unless the Act is proclaimed and the OPR becomes operational, then the full extent of what procurement in the public sector will be like is just speculation.
“It is all speculation as to the flood of requests that will come through. Additionally, when you look at them there are only three areas. It’s not every single thing that comes before the office for adjudication.
“Those three areas are: when a supplier/contractor feels that there was a breach of the act, and they likely to suffer loss in terms of the pre qualification, pre selection and solicitation even before a contract is awarded, the standstill period and that’s a defined period of between ten and 15 days and the third is after a contract has been awarded, there is seven days to lodge a complaint upon which, the OPR will review.
“When it comes before the office, that gives us 20 days in which to complete the entire hearing and adjudicate on the matter. We are not aware whether the review board that was included in an amendment is operationalised. But if the review board is not fully constituted, the question is where it go, whether it goes straight to the courts,” he said.
On Monday, at a news conference, Prime Minister Dr Keith Rowley said that there would be a delay in the proclamation of the Procurement Act but he is anxious to have it proclaimed.
“What has been happening is that every time we attempt to proclaim these law elements, I should say interested parties and clients will point out pitfalls. And we come back to the parliament and we adjust it. But there always seems to be some problem because this is a very far reaching piece of legislation, which could have serious consequences to the operations of the government,” he said.
“It would be irresponsible of me and the Government to disregard what has been identified by the Chief Justice and, of course, what is being also considered by the Office of the regulator, notwithstanding how eager we are to have it proclaimed so that we can once and for all put this on the books,” he said.