Trinidad and Tobago
The Joint Consultative Council (JCC) for the construction industry is accusing the Attorney General of creating a ruse to delay the procurement legislation.
In a press release on Tuesday, the JCC said it was “sounding the alarm” that statements made by AG Reginald Armour about depending on support from the Office of the Procurement Regulation (OPR) were “disingenuous and dangerous.”
“It is clearly a ruse to delay the full operationalisation of the Procurement Legislation. The OPR has completed all of its mandates, including meeting with all relevant state agencies over the last four years,” the JCC said.
It said the OPR has no power to appoint procurement officers to State agencies.
It noted that since 2016, Finance Minister Colm Imbert has gone to the Parliament promising the operationalisation of the legislation was imminent.
“Every year since, monies were allocated to various public bodies post-budget. Why have the relevant Ministers and Permanent Secretaries not appointed Procurement Officers to operate within the intent of the new legislation?” the JCC asked.
The council said instead, the public has to accept that State funds were being spent without the proper oversight.
Calling on Prime Minister Dr Keith Rowley to take charge of this “languishing” process, the council said the AG’s office must let the public know which State bodies have not appointed procurement officers.
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Trinidad and Tobago
Attorney General Reginald Armour met with the Chairman of the Office of Procurement Legislation and Procurement Regulator Moonilal Lalchan ahead of the proclamation of the Public Procurement Act.
In a statement the Office of the Attorney General and Legal Affairs said Armour and his Ministry team held an in-person meeting with Lalchan and his team from the Office of Procurement Regulator (OPR) at the Office of AGLA on July 12, 2022.
The Ministry said the meeting was a direct follow-up on the statement made by the Honourable Attorney General to the House of Representatives on June 22nd 2022 and, an exchange of correspondence which has since taken place between the Offices of The Attorney General and Minister of Legal Affairs and the Office of Procurement Regulation.
The Attorney General was accompanied by, among other members of his Team, Minister in the Ministry Renuka Sagramsingh Sooklal and Vyana Sharma, Head Anti-Terrorism Unit of the Ministry’s Team.
The Ministry said Sharma has been spearheading the Team liaison and work of the Attorney General and Ministry of Legal Affairs with the OPR Team since 2019.
Armour delivered opening remarks on the Government’s commitment to proclaim the public procurement legislation on the basis of a properly planned implementation and operationalization of the law and shared informative documents with the OPR.
Lalchan in turn delivered a presentation on the remit of the OPR and its progress in ensuring, among other things, the OPR’s Readiness Assessment Checklist Data in addressing concerns expressed by the Attorney General in his Statement to the House and, was highlighted by a commitment by the OPR Chairman to provide the Honourable Attorney General with written updates and responses in the shortest time possible.
The meeting was very cordial and addressed a number of key priority areas including the steps necessary for ensuring that public and public/private entities are fully prepared and equipped for the proclamation of the Public Procurement Act and the implementation of the law, with extensive support from the OPR.
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Trinidad and Tobago
Chester Sambrano
Procurement Regulation chairman Moonilal Lalchan says despite the readiness of his office for the full proclamation and implementation of the Parliament–approved procurement legislation, there remain some hurdles to cross.
Althoughs the Public Procurement and Disposal of Public Property Act, 2015 was assented to on January 14, 2015, it only comes into operation on a date to be fixed by the President by proclamation.
But to get to that point, public bodies have to be ready to comply.
Speaking at the Annual General Meeting of the Transparency Institute of Trinidad and Tobago (TTTI) on Wednesday, Lalchan explained the efforts he and his team have been making to foster compliance.
He said since January 2019, they have been writing to public bodies asking them to do a readiness assessment.
He said out of the 415 main public bodies, to date, only 72 have responded to the OPR (Office of the Procurement Regulator).
“This readiness assessment is a very comprehensive check list that puts all public bodies in a state of readiness to be ready for the full proclamation,” he said.
Lalchan also explained that since 2018, they had put out a bulletin asking the public bodies to appoint a named procurement officer but only a selected few have complied.
“One of the sticking points really, and I would have mentioned it early, is the unavailability of named procurement officers. That is critical because that forms part of the whole infrastructure to get this act fully operationalised and we will be speaking very clearly to the Attorney General, that has to be done as a matter of urgency,” he explained.
Lalchan did, however, commend the Government ministries,, most of whom he said are preparing.
Last Tuesday, AG Reginald Armour met with the OPR and asked for them to draft a timeline of when the Act can be fully operationalised.
Lalchan said this is being worked on actively and will be presented to the AG as soon as possible. He said they “are pushing very hard to get it proclaimed as quickly as possible.”
He said as it related to the OPR, they already have 1,000 contractors registered on their database. He said all their databases for the full operationalisation of the Act is in place.
On Tuesday, the JCC (Joint Consultative Council) wrote a letter to the editor expressing its dissatisfaction with the slow pace of implementation of the Act.
“While the JCC is heartened by the Attorney General’s meeting with the procurement regulator, we remain deeply concerned and disappointed by the lack of timelines given by the AG for taking his note to Cabinet to facilitate the proclamation of the new legislation,” JCC president Fazir Khan said.
One day earlier, Prime Minister Dr Keith Rowley said he too was disappointed that the Act is yet to be fully proclaimed but he promised this will be done soon.
“So, there’s gonna be a little delay. But it is not because we want to delay it. It is because we want to respond to what has been identified as pitfalls with far-reaching consequences. And as soon as the Attorney General is in a position to address those, he will inform the country and we will move with the reasonable haste to get it put on the books. That is where we are with procurement legislation,” he said.
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Trinidad and Tobago
A PLEA has gone out to President Paula-Mae Weekes not to act in haste and proclaim the Procurement and Disposal of Public Property Amendment Act (2020).
“We beg you not to act in haste or under pressure to proclaim this modified and weakened act,” Gary Aboud, corporate secretary of non-governmental organisation Fishermen and Friends of the Sea, said in a press release on Wednesday.
In making his plea to the President, Aboud asked, why are leaders not seriously interested in protecting the Treasury?
Every stable nation, he said in the release, has good procurement legislation that ensures open, honest and fair procurement which prevents corruption. PM Rowley and leading private sector agencies, Aboud added, should be ashamed for calling for its proclamation, “as a matter of priority.”
He said that on June 27, business stakeholders including the American Chamber of Commerce (AmchamTT), the TT Chamber of Commerce, TT Manufacturers Association and the TT Transparency Institute requested that the legislation and its amendments be proclaimed and fully implemented, as a matter of priority.
“It appears that these parties are more interested in their own self-interest than the public interest,” Aboud said.
He claimed that successive governments have pillaged the Treasury without any accountability, independent third-party oversight, or transparency.
TT has earned a reputation of inflating the cost of everything from highways to ferries, from Coast Guard ships to helicopters, from box drains to skyscrapers, he pointed out.
Aboud, who is also a businessman, said people who ought to protect the public purse and ensure value for money are instead mixed up in schemes and scandals. “Today more than ever we need to safeguard and protect an already exhausted public purse.”
He also said that the essence of the Act has been undermined.
“Why would any Prime Minister support amendments that exclude Government to Government arrangements and public/private partnerships from the ambit of the Office of Procurement Regulations?”
He said that proclaiming the act along with its amendments gives government a totalitarian authoritative frontline to go further into the treasury.
“Madam President, this legislation is the most critical legal structure to stop the corruption haemorrhage. We humbly and respectfully appeal to you not to proclaim the act until the amendments are removed,” Aboud said.
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Trinidad and Tobago
Every year, $26 billion is spent on goods, works and services annually.
When the Public Procurement and Disposal of Public Property Act is proclaimed it could help the country save some of this money from waste and corruption.
Out of this sum, more than $5 billion can be saved annually, according to the chairman of the Office of the Procurement Regulation (OPR) Moonilal Lalchan.
“Based on calculations, out of the roughly $52 billion national budget, we estimate that $26 billion is probably spent on goods, works and services annually. It’s not only from the budget but from those organisations that are self-sufficient like the First Citizens Bank, Caribbean Airlines, Heritage Petroleum Company and others who are not necessarily dependent on the Treasury. But they are public bodies and spend substantial money. For example, Heritage Petroleum, which spends on exploration or National Gas Company on gas pipelines,” he said.
Speaking at the T&T Transparency Institute’s (TTTI) Annual General Meeting last Wednesday, Lalchan said between 10 and 30 per cent of the money spent on public procurement could be saved.
The OPR was established in 2018 to be the watchdog of procurement for public bodies with the processes like tenders, contract management and supply of goods, works and services. It is also required to investigate any wrongdoing and to take the necessary steps to nullify contracts.
Lalchan said the main aim is to clamp down on bad practices in procurement and disposal of public property.
The OPR has met with more than 300 organisations. Lalchan said any organisation that receives public funding is required to follow the requirements of the legislation.
Allegations of corruption and the call for procurement legislation go back decades.
It has been 40 years since the George Chambers administration appointed a committee to conduct a comprehensive review of government-to-government arrangements for projects like the Mt Hope Medical Complex and the Hall of Justice. Its findings were documented in what came to be known as the Ballah Report as the committee was chaired by then Permanent Secretary in the Foreign Affairs Ministry, Lennox Ballah.
Chartered surveyor and social activist Afra Raymond recalled in his blog how Chambers had told a shocked country that two out of every three dollars from the then oil boom had been stolen or wasted.
In more recent times, there was the Piarco Airport construction scandal where there were allegations of bid-rigging and fraud in the award of contracts for the $1.4 billion project.
In June 2020, when the Curepe Interchange was inaugurated, Prime Minister Dr Keith Rowley said even improved and amended procurement legislation would not have helped the Government save over $200 million on the project, as there were ways for corrupt politicians to use more taxpayers’ money. The project came in at a final cost of $221 million.
Rowley also referred to the OAS Constutora, the original contractor on the Point Fortin Highway Project. For some reason, the former People’s Partnership administration removed the clause in the contract that held OAS Constutora, which eventually went bankrupt, liable and ensured that they forfeited their multi-million bond. He said removing that clause gave the bankrupted company a $921 million gift. In 2016, the Government took OAS Constutora to court and recovered that money.
At a press conference last Monday, Rowley said he is anxious to have the Public Procurement and Disposal of Public Property Act proclaimed, and expressed disappointment at the delay in full implementation.
Procurement officers
Stakeholders have complained that after being assented to seven years ago, the legislation still has not been fully proclaimed and is still not functional. Lalchan said the main holdup is that some public companies are yet to appoint procurement officers.
Once the law is proclaimed, it will take three months before it replaces the Central Tenders Board which was set up in 1961.
“It depends on what needs to be put in place once we assess the various requirements of the public bodies. We are working with the Attorney General and his team to put together a timeline. The main reason why some of the public bodies are not ready as they have not appointed their main procurement officer which is required under the Act to be appointed. That officer is now responsible for procurement and disposal activities,” he said.
Lalchan said out of 415 public bodies, only 130 have appointed procurement officers. Among them are the National Gas Company (NGC), the T&T Electricity Commission (T&TEC), Water and Sewerage Authority (WASA), and Plipdeco.
“Once procurement officers are appointed that puts us in a good position to give effect to the full proclamation. We don’t expect all 415 to be appointed immediately. So far we have had 1,000 requests for assistance from public bodies, so there’s a wide usage of the Act although it is not fully proclaimed. It’s not like everything is at a dead stop.”
Negative effects
Lalchan called for an end to bad practices within public bodies.
“Look at the regional health authorities and regional corporations. We have put in place handbooks that guide the practices of these different entities, for example, how they go about engaging suppliers and contractors in terms of competitive tenders. There are now a number of tenders being published in the newspapers. That gives an idea of the new transparency,” he said.
Using the example of National Insurance Property Development Company (Nipded) and expired medicine he explained: “There is about $87 million in expired drugs to be disposed of. In terms of value for money is whether we are coordinating the activities by the regional health authorities and Nipdec which is responsible for purchasing these and storing them. One of the things about procurement is when you procure and put down these expansive buildings, do you look at maintenance or do you leave it to run down?
“Do they have maintenance contracts associated with them or do they just buy and put them in a case? So the whole value for money proposition centres around the maintenance of our assets. What we have done is include in regulations and our handbooks how they go about extracting best value for money in terms of procurement, maintenance and then disposal.”
Before the last Local Government elections, Lalchan met the line minister and all the regional corporations’ chairpersons and CEOs.
“Subsequent to that there was an election and new individuals came in. Some of the concerns that are being raised at the regional corporations are that we all know what happened in terms of the operations of criminal elements within some of those regional corporations and how they try to go about manipulating the process. That’s one of the advantages of getting this done as quickly as possible to get rid of some of those behaviours.
“There are temporary clerical employees in charge of complex procurement activities. This cannot continue if we want to get value for money.”
Lalchan added: “One of the main ingredients is to have one database of contractors and suppliers that are pre-qualified. So far we have had over 1,000 of them, so public bodies can only use pre-qualified contractors going forward from that list. Public bodies cannot go about just pre-qualifying anybody. There’s now a structured way. If a company has not paid their taxes and they have not paid NIS and Health Surcharge, they will not be pre-qualified and taking part in state-controlled public tendering.”
Lalchan said three outstanding sections of the Procurement Act that need to be completed and acted upon are Sections 7.8, s57 (a) and 61.
Under Section 7, the Ministry of Finance has to prepare the terms of guidelines for the circumstances in which certain exempt services could be procured.
“Under Section 7.6, which is an amendment to the Act, it says that the Act shall not apply to the following services provided to public bodies or state-controlled enterprises which are legal services, debt financing services, medical emergencies, and such other services as the Minister may by order determine. The Minister shall submit to the Office its guidelines which outline the circumstances under which exempt services may be procured. So that’s one of the things the Minister has to prepare in terms of guidelines as under what circumstances these exempt services could be procured,” he explained.
Section 57 (a) of the Act states that notwithstanding the State Lands Act and other written law to the contrary, the Minister may make regulations in respect of the disposal of state lands, real property owned by the Government, real property owned by state-controlled enterprises; and real property owned by a statutory body, responsibility for which is assigned to a Minister of Government.
The Minister of Finance has to complete this part, he said.
The most urgent action needed falls under Section 61 which refers to the need for procurement officers in all public bodies. The Procurement Review Board which will review decisions made by the OPR is still to be operationalised.
Stakeholders
CEO of the T&T Chamber of Industry and Commerce Ian de Souza told the Sunday Guardian the business community is concerned about the slow progress in having the legislation proclaimed.
“The Act has been partially proclaimed and the regulations have been approved. As it is understood, however, the training of public officers is being undertaken to ensure that public agencies are in a state of readiness to be able to comply with the provisions of the Act and therefore allow for full proclamation. It is hoped that this training and all other attendant issues that would provide for full proclamation of the Act would be expedited,” he said.
Derek Outridge, a consultant in the construction industry, said he blames the Government for inaction on the legislation.
“They have been the ones delaying the whole aspect of procurement by not preparing watertight legislation from the beginning, coming to the Parliament every time the industry calls for its implementation with piecemeal amendments. This has now culminated into a view that the legislation is now unworkable unless a major overhaul has been done.”
Outridge called for legislation to set up a commercial court to deal with cases that come out of the construction industry.
“The judiciary has not been given the resources to set up a proper procurement agency. The judiciary does not have a technical and commercial court similar to what was set up in the United Kingdom to deal with matters of construction. As the bulk of that will end up in the courts.”
He is calling for the Government to go back to the construction industry for more consultations before the legislation is proclaimed as they are among the stakeholders who will be affected.
“The legislation right now is impotent,” he said.
Joint Consultative Council For the Construction Industry’s (JCC) Fazir Khan blamed the Government for the slow process of getting the legislation proclaimed.
“The OPR was set up and they have done everything they have to do. They are fully ready. Only last week the Attorney General met with the regulator and this seems to be a backward and reactive move. It is for them to go to Cabinet and have the regulations proclaimed and then have the President do her part to make it law. The Act was passed in the two houses of Parliament. The regulations were passed in January 2022 and in 2021 the Act was passed. There were also three amendments.”
He said that if the legislation is not functional it will simply lead to more corruption.
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