Bahamas
The Bahamas is “struggling with the execution” of anti-corruption safeguards, governance reformers are warning, with accountability and transparency “aspirational” rather than real concepts.
Matt Aubry, the Organisation for Responsible Governance’s (ORG) principal, told Tribune Business in a recent interview that The Bahamas lacks an “integrated anti-corruption” strategy that pulls all such legislative and regulatory reforms together in a co-ordinated package capable of combating graft.
Chester Cooper, deputy prime minister and minister of tourism, investments and aviation, and some of his Cabinet colleagues have foreshadowed changes to the Public Disclosure Act but this law – which focuses on declarations of wealth, income and assets by ministers, MPs and top civil servants – is viewed by Mr Aubry as not wide enough to capture the low level, every day corruption that most Bahamians have to deal with.
Speaking after the US government, in its recent International Narcotics Control Strategy Report, urged The Bahamas to move forward with long-planned governance reforms, the ORG executive said: “Accountability and transparency continue to be aspirational terms. They have to be actual terms, and it’s in the execution where we’re struggling.
“We have the language out, but have to understand what it means for the day-to-day person, small business owner or person struggling with the delivery of public services. We’ve made advances, but it’s important to make sure they are enhanced and understood, and it has to be a whole society effort.
“It’s not just the Government changing and reforming, and putting practices in place for good governance, but citizens finding a way to participate and businesses being able to use publicly-available information to develop strategies and grow. This is a continuum that we’ve started, and it doesn’t necessarily help if we don’t see it all the way through.”
The Davis administration had promised to pass a comprehensive package of anti-corruption legislation during its first 100 days in office, including the Integrity Commission and Ombudsman Bills that stalled under its predecessor, but that period has past with little visible progress made.
In addition to Mr Cooper, Michael Halkitis, minister of economic affairs, and Ryan Pinder, the attorney general, have also publicly referred to reforming the Public Disclosure Act. Mr Aubry said campaigners were benchmarking this Act, and determining whether it could be extended to cover other corruption-related issues, but he indicated the early results were not promising on this.
Referring to the Integrity Commission Bill, which would create a politically-independent body to receive and investigate corruption allegations, the ORG chief said: “From what I understand that Bill did not make the legislative agenda.
“When you think about establishment of an independent agency that receives and vets any allegations of corruption, and is charged with identifying opportunities across government where we can improve corruption perceptions or reduce instances of corruption through technology and training, I don’t see where the Public Disclosure Act provides for that.
“The Public Disclosure Act, in its main interpretation, targets those MPs and elected officials, but every-day corruption that people experience daily will not be handled through that legislation.”
While multiple legislative initiatives have been spoken of to aid the fight against graft, Mr Aubry said: “None of it speaks to an integrated anti-corruption strategy; a strategy that brings these things together to their greatest effect.”
The US, in its narcotics report, said: “Since 2017, The Bahamas has enacted, but not fully brought into force, a range of laws to fight official corruption. Draft laws presented by the prior administration to establish an ombudsman’s office and an anti-corruption agency, focused on public corruption, had not yet been taken up in October by the new administration.
“In May 2021, the first information commissioner and deputy commissioner were appointed under the Freedom of Information Act to support public access to government records. Parliament has not yet brought into force clauses of the same Act, however, that define a process for the public to obtain information.
“It is important The Bahamas follow through with plans to fully bring into force transparency and accountability legislation to prevent and address corruption, and preserve public confidence.”
Mr Aubry, referring to a recent Inter-American Development Bank (IDB) report that found trust in government in Latin America and the Caribbean was lower than anywhere else in the world, said such trends made societies more prone to corruption because people felt they will not be treated fairly by institutions and the existing system.
“I think that there is a lot of intent and focus, and we have a lot of discussion relating to accountability and transparency, but it is a shifting culture and we are struggling with execution,” he added. “It’s the pace of execution we have to look at as we move forward with these things.”
The Bahamas was “behind the times” in fully enacting its Freedom of Information Act, Mr Aubry said, and has “yet to see the publication” of all contract awards made by public entities as required by the Public Procurement Act since it took effect in September 2021.
The Davis administration has argued that multiple mechanisms and personnel must first be appointed before that Act can be implemented, especially the identification of a chief procurement officer. Without this person, it has argued contract award details cannot be published.
However, Michael Pintard told Tribune Business earlier this year that having a chief procurement officer in place was “not a prerequisite to fulfilling your obligations” under the law, and publishing details of all government contracts awarded between September 1 and November 7 last year, based on his reading of the Public Procurement Act.
He spoke out after Simon Wilson, the Ministry of Finance’s financial secretary, told a media briefing by the Prime Minister’s Office that the Minnis administration’s failure to follow the necessary public service protocols and appoint a chief procurement officer meant it was impossible for the Government to reveal these contract details as required by law.
Mr Pintard, who previously accused the Davis administration of violating the law on this issue, said the Act did not specify that a chief procurement officer must be in place for information on all government contracts to be released “within 60 days” of their award to the successful bidder.
This newspaper’s analysis of the Act appeared to back the Opposition leader’s assessment, as clause 61 on “contract award notice” puts the disclosure burden squarely on the “procuring entity” – meaning the government ministry, department, agency or state-owned enterprise (SOE) issuing the tender – to publish the bidding outcome.
And, even if the chief procurement officer’s appointment was required first by the Act, and he had read it wrong, Mr Pintard argued that there is no legal impediment to publishing contract award details before this happens. Doing so, he argued, would demonstrate the Government’s commitment to procurement transparency and accountability, and taxpayer value for money.
more
image: pexels-pixabay
Read more
Jamaica
Two public officials have been tagged “grossly incompetent” in an Integrity Commission report for their handling of two contracts that cost Jamaican taxpayers $20 million.
The report, which was tabled in Parliament on March 8, covered an investigation into allegations of the non-performance of a contract awarded to car dealership GM Challenger by the Jamaica Defence Force (JDF) in 2014.
The report found that Major General Antony Anderson, the then chief of defence staff of the JDF, and Gilbert Scott, a former permanent secretary in the Ministry of National Security (MNS), as the relevant accounting officers, were “cavalier” in the manner in which the procurement activities were conducted for the contracts awarded to the company.
“… They allowed the same entity, GM Challenger, to be twice paid deposits totalling approximately $20 million for vehicles ordered but not supplied and that no refunds of those deposits have been received to date,” Director of Investigations (DI) Kevon Stephenson said in the report.
The report also said that both Anderson, the current commissioner of police, and Scott breached Section A7.6.3. of the Public Sector Procurement Procedures when they authorised partial payments to GM Challenger without first obtaining an advance payment security from the company.
In May 2014, the JDF contracted GM Challenger to provide a new ambulance at a cost of US$113,807.38 with a two-month deadline.
An advance payment of J$6,097,777.28 was made to the company, which failed to deliver the vehicle, resulting in the JDF terminating the contract.
A request for a refund was made, but GM Challenger replied with a claim for losses it said it suffered because of the termination of the contract.
GM Challenger said money would have been spent on ordering the manufacturing of the chassis for the ambulance, which had to be specially retrofitted for the JDF. It also made a claim for damages for breach of confidentiality.
The company said that it failed to meet the deadline because the JDF had been indecisive about the type of ambulance it wanted.
GM Challenger said that the JDF was informed that the ambulance it wanted would have taken five months to procure.
The dealership said the JDF indicated some time after that it could not wait and instead settled for another version of the ambulance.
However, months later, GM Challenger said the JDF indicated that it wanted the first ambulance, but by that time the supplier had sold the vehicle.
The JDF subsequently wrote to the attorney general (AG) to take steps to recover the sum paid.
In the matter of the security ministry, the Integrity Commission’s report said that it contracted GM Challenger to supply five 40-seater buses to the JDF in February 2006.
A deposit of $12,986,209.60 was made, but the company failed to supply the buses, resulting in the ministry’s termination of the contract.
“To date, GM Challenger has neither returned the deposit nor delivered the buses to the Ministry of National Security or the JDF,” the director of investigations said.
The Integrity Commission report said a year after GM Challenger was contracted to procure the buses, the ministry enquired about the delivery and was told by the company that they would be ready by the middle to the end of the month (August 2007) and that a shipper was being sought.
On October 24, 2007, GM Challenger wrote to the ministry advising that the five buses were ready but there were some challenges in importing them as the shipping cost which they had included in their bid price moved from US$9,000 per unit to between US$16,000 and US$20,000 per unit.
This prompted the ministry to request a refund, but instead, the company proposed that the ministry absorb the additional freight charges or allow it to supply police cars from its inventory to offset the obligation.
The security ministry rejected the proposal.
Stephenson concluded that Anderson and Scott, or their designate, “were grossly incompetent, at best, in their handling of the contracts outlined herein”.
“The foregoing is a clear breach of fiduciary on the part of the respective accounting officers, who, in contravention of the procurement rules, approved advance payments to GM Challenger without first obtaining the requisite advance payment security,” he said.
“… The DI finds it inexcusable that the Government of Jamaica, on behalf of taxpayers, remains out of pocket for over 14 years in one instance and over seven years in the other.”
He said the justifications proffered by GM Challenger for failing to meet its contractual obligations and/or refund the deposits paid were “questionable, at best, if unacceptable”.
Stephenson has recommended, among other things, that the current chief of defence staff, Antonette Weymss Gorman, identify the officers accountable for the breaches and consequential loss and “pursue the necessary disciplinary actions to deter such conduct and/or minimise the occurrence of similar breaches in the future”.
The report has been referred to the attorney general to pursue actions deemed appropriate to “put the Government of Jamaica (JDF and MNS) in the position it would have been had GM Challenger not breached its 2006 contract with the MNS and its 2014 contract with the JDF to supply five buses and an ambulance respectively”.
Stephenson has also asked the AG to consider the possibility of joining, where appropriate, the negligent officers in the JDF and the MNS in any action for breach of contract in respect of GM Challenger.
more
image: pexels-nataliya
Read more
Trinidad and Tobago
SOME weeks ago, I penned an article voicing my scepticism regarding the call by one of the most powerful local companies for the Government to sell national assets to private corporations. The concern was grounded principally on the disastrous socio-economic impact of the recommendation on reducing income inequality—a necessary prescription for sustainable national development.
One legislation that aims to promote national development, which was referenced in the article, is the Public Procurement and Disposal of Property Act (the PA)—in particular, Section 7 as amended by Act 27 of 2020.
Section 5 of the procurement legislation provides that its objective is to promote the principles of accountability, integrity, transparency and value for money in the sale and procurement of public goods and services.
In other words, to ensure equity and equality in the award of contracts.
Although Section 7(1) expressly provides that the legislation shall apply to public bodies and public-private partnership arrangements, Section 7(2), both in its original, and moreso in its amended version, is effectively a betrayal by the Government of the very purpose of the act.
Prior to the enactment of the legislation, procurement and disposal of public goods and services were governed by the Central Tenders Board Ordinance 1961 (CTBO).
Gaps and weaknesses
In 2008, the Ministry of Finance published a booklet on the purpose and objective of the then-CTBO.
As with the current act, it emphasised the main goals of the CTBO were to promote the principles of integrity, transparency, accountability, equity, value for money and high performance in government procurement.
However, several gaps and weaknesses in the CTBO were identified as major obstacles to achieving these objectives, according to the 2008 booklet of the Ministry of Finance and the 2005 Procurement White Paper. These included:
a. The Board’s role was essentially relegated to the tendering process in which offers of supply were identified and contracts awarded;
b. The Board took no part in the design stage where needs would be identified, scope of works determined, costs estimated, bid packages presented, resulting in a regulatory vacuum and leading to escalating costs and poor-quality products and costly delays;
c. The Board did not participate in the implementation stage in which the contract is managed, nor was it responsible or equipped to monitor projects;
d. Inadequate public information was provided as there was no system in place to provide suppliers of property and services as well as the wider public with comprehensive up-to-date electronically accessible information on tender opportunities and the status of bids and awards and the progress of these awards; and
e. The final blow to the relevance and role of CTB was the decision to permit statutory entities such as NIPDEC full procurement powers while other State-owned enterprises simply ignored the CTB.
The result of these developments was a mishmash of procurement contracts and procedures which were often not aligned or inadequate to the objectives of the procuring agency, coupled with poorly trained or inexperienced staff.
Major lacuna
It was against this background that the procurement legislation replaced the CTBO. The legislation, most significantly, addressed a major lacuna in the former CTBO by creating the position of procurement regulator with expanded and unprecedented monitoring and oversight by the regulatory authority regarding contracts involving public bodies and public-private partnerships at the design stage, the tendering stage and implementation or performance stage.
These regulatory powers can substantially reduce the opportunity for corruption whether with respect to the choice of contractor, the terms and conditions of the contract, the completion of the design stage prior to selection, and monitoring capacity during the performance of the contract.
In addition, the regulator has the power to make a report to the DPP where he deems appropriate, or upon receipt of an application for review, and can order the suspension of the performance of a contractor and the operation of a framework agreement that has been entered into force.
So, how does such a laudable piece of legislation facilitate the concentration of wealth in a few hands, while increasing the income inequality at an exponential rate? The answer lies principally in Section 7(2) in its original configuration and its amendment by Act 27 of 2020.
Section 7(2)’s original wording succeeds in creating a semantic conundrum by removing the application of the legislation to the contracts listed in the subsection, but in the same breath it provides that where there is a conflict with those listed categories of contracts/agreements, the terms and conditions of those contracts shall prevail, except that the procurement of goods, works and services shall be governed by this act.
A contradiction in object and purpose if ever there was one. The listed Section 7(2) agreements are (a) treaty or other form of agreement to which Trinidad and Tobago is a party with one or more states or entity within a state; (b) an agreement for technical corporation between Government and an international financing institution; and (c) an agreement for technical or other cooperation between Government and the government of a foreign state.
It is submitted that the subsection was not intended to include public-private partnerships and contracts for public services and goods whether with a foreign entity or local entity.
Quite apart from defeating the very purpose of the act to create a monitoring and oversight agency at every stage of these contracts, the words after “treaty or other form agreement… or entity within a state” create uncertainty when viewed in the context of the category of excluded agreements.
All of the contracts excluded from the oversight of the Regulator at Section 7(2) (a) to (c) involve international treaty and financing international technical support agreements.
Strictly regulated
These agreements are already strictly regulated by the specific classes of international institutions to which they apply.
This restrictive application to the category of excluded contracts is bolstered by a generous application of the ejusdem generis rule of construction to the entire subsection.
This rule essentially means “of the same kind” and provides that where general words or phrases follow a number of specific words or phrases, the general words are specifically construed as limited by those specific words.
In addition, the purposive rule of construction permits the reading of a provision consistent with the object and purpose of the act.
This view is further bolstered by the 2008 Ministry of Finance tendering booklet, which states that the Central Tenders Board rules did not apply to international lending and technical organisations, mainly because these entities are well known to have strict procurement regulations and, as is often the case, the Government has to align its requirements and procedures to the more stringent procurement requirements of the lending agencies such as the Inter-American Development Bank World Bank and Caribbean Development Bank.
Contracts excluded
Instead of the 2020 amendment addressing this blatant ambiguity in the subsection and ensuring the objects of the procurement legislation are realised, the amendment simply excluded the words after “prevail”; reinforcing that the act would not apply to the very contracts it was intended to monitor. Even more contracts were excluded from the oversight of the Regulator by the addition of Section 7 (5). These include:
• legal services;
• financial services—on that point, many construction contracts fall into that category, as BOLT, BLT and BOOT contracts are deemed to be financial contracts, according to the Ministry of Finance booklet;
• accounting and auditing services;
• medical emergency services; or
• such other services as the minister may, by order, determine.
What that means is that the failed contracts for the 5,000 houses to be built by a World Bank-blacklisted Chinese construction company; the PoS hospital construction contract which was terminated by Shanghai Co; the AV Drilling Company oil supply contract’s questionable findings; the closure and potential sale of the refinery, the construction of the Creek Road, the potential criminal wrongdoings of the Firearms Department and the many more that have yet to come to light could have potentially been avoided, or effects minimised, if the regulator had monitoring oversight from design to performance.
Instead, this lack of transparency merely allows the wealthy to become wealthier in an environment that is facilitative of unchecked corruption.
Such legislative provisions ensure the gap between the wealthy and those in other socio-economic groups grows even wider, making the promotion of fair and equitable socio-economic policies an unattainable goal for so many outside of that privileged group.
Recommendations
It is my recommendation, for starters, that Section 7 be amended to ensure the oversight of the public-private partnerships and contracts with public and private entities other than those specifically excluded by Section 7(2) of the procurement legislation and, in particular, construction contracts that utilise the BOLT, BLT and BOOT models which are classified as financing contracts.
The public should also demand that the details of these contracts awarded over a specified sum should be disclosed on the website of the relevant State enterprise or Government authority, stating the nature of the contract, the company/person awarded the contract, the monetary value, the intended and actual date for completion, and any cost overruns.
This information should be collated and placed on the regulator’s website so that the public can have a greater insight and understanding as to how our public funds are being spent, and to whom these contracts are awarded.
And, more importantly, achieve the very objects of the legislation of transparency, accountability, value for money, equity and fairness, providing a meaningful opportunity for a wider cross-section sector of our national community to participate in entrepreneurial opportunities and reduce the growing income inequality.
more
Image: Law-scrabble-tiles
Read more
Guyana
Reference is made to missive by Dr. Vishnu Bandhu (Feb 26) “Ministry’s response to procurement queries about pumps raises several questions”. It relates to alleged controversial advice offered by the Ministry to purchase pumps from a company, Morrison Pumps, in Holly-wood, Miami, Florida. I have been looking forward for a response from the Ministry to the queries. The Ministry has no business to guide or suggest to contractors from who to purchase pumps. The best and most effective pumps must be procured at the right price. I have been keenly following up on the purchase of pumps under the previous and this current administration. There has been a lot of errors for which there has not been accountability. The purchase of pumps has been mired in controversy for years. Neither administration seems to have gotten it right. And neither administration seems open, transparent, and above board in selecting a contractor and ordering the right pumps.
I was expecting a response from the Ministry on the questions raised by Dr. Bandhu about the company, Morrison Pumps, from Hollywood. There being no response from the Ministry or NDIA, is one to conclude that Dr. Bandhu is right and also for the public to assume the ordering of pumps will remain mired in controversy? Doesn’t the ministry even care to verify Bandhu’s allegation that the Morrison Pump Company is not a pump manufacturer as required by the tender and by contract? Won’t there at least be an independent investigation? Will engineers be sent to Morrison to examine the pumps and its factory like what took place when pumps were ordered from India? Will engineers be compelled to approve purchase from Morrison or any other company? Will a competent capable contractor be approved to install the pumps?
more
image: CGIAR System Organization (flickr)
Read more
Trinidad and Tobago
FIFTEEN years after it was first announced, Prime Minister Patrick Manning’s initiative to link T&T to West Africa, through the National Gas Company (NGC), is finally getting off the ground.
Wholly State-owned NGC is now celebrating a number of firsts in Ghana: it is the first time it was asked to produce a critical piece of equipment,; that equipment was for an international company, the Takoradi Distribution Station (TDS) in Ghana; the first time such a project was conceived and executed virtually and it marks NGC’s first steps into selling technical services.
The project started in December 2020, during the pandemic, when the country’s borders were closed.
According to Winston Mohammed, NCG’s senior manager of projects, the company was asked to tender based on a technical services agreement which was signed years ago.
Mohammed explained that the NGC was asked to submit a bid and it was successful in its tender to design, procure, construct and install a pressure regulator skid in Ghana.
That critical equipment is required to get Ghana’s power plant to manage its flow of natural gas.
Technical capability
He pointed out that Ghana has already invested in a pipeline infrastructure and a natural gas liquids plant.
“There’s one element of that infrastructure that was missing and needed to be completed,” he told the Express Business in an interview last week.
“What the pressure regulator skid allows them to do is to take the natural gas and reduce the pressure by which it is being distributed or transported. And then it’s to get to the required amount that the power plant can use. So it’s a critical connection point now between the supply of the gas and getting the power plants started up,” he said.
“NGC’s engineering, drafting and computer-aided design were all used. We actually did the design using NGC people, our supply chain to procure all the materials, and then we used T&T contractors to fabricate the skid,” he said.
Mohammed described the design and fabrication of the skid as the evolution of the company’s technical capability from developing a pipeline infrastructure to technical services.
He said the project cost under US$2 million and had to be delayed for a few months because of supply challenges.
However, NGC was able to meet its March extension and the skid is now completed and has been shipped to Ghana for installation.
He said the project used local talent.
“I would say indirectly and directly, the project would have affected at least 50 people. The fabrication was done in Point Lisas by TrinWell Contracting,” he said.
Mohammed was keen to point out that prior to the onset of the pandemic, delivery of such a project in Ghana would have involved site visits to assess as-built conditions, collaboration with teams on the ground in Ghana to finalise design specifications and direct oversight and management of local contractors during the construction, installation and commissioning phases.
He said the team used virtual meeting tools and relevant software applications to gather data, review designs, and collaborate with their Ghanaian counterparts, who were on-site to eventually complete a design that secured the necessary approvals.
He said the project leveraged technology to progress engineering workflows, using 3D computer-aided design to communicate the design and test options for improvement.
The NGC executive said the company used Microsoft SharePoint to share technical drawings with the client and to facilitate documentation of comments, input, review and quality control. Site data was supplemented by online videos, which served to provide another level of quality assurance on the as-built specifications that would guide the project.
“I think it must never be underestimated what a significant challenge it was to deliver this project. We could have said no, but we took it on, given that the Government of Ghana absolutely needs this.The power plant is already built so it’s important that this piece of infrastructure is finished to ensure they get the power on the grid,” he said.
Start small
Mohammed is satisfied that the NGC’s first such project has been completed.
“I’m a firm believer in starting small. I think when you start small, you learn. Capital projects have a lot of risk. Things do go wrong. There’s supply chain risk, there’s construction risk, etc. So what we want to do is focus our strategy in our area of strength which is natural gas. So we certainly want to involve ourselves in the natural gas infrastructure worldwide. This is why one of our subsidiaries, PPPGL, is expanding in the natural gas liquids area globally. So we certainly want to expand in the services area but, for us, where we see our value is around the natural gas infrastructure,” he said.
He said the company is looking along the value chain to expand.
“Once you’re in the natural gas business, the entire value chain, when it makes commercial sense for us to actually invest in that chain, we will do so. And we should be able to have technical services meaning to design, to construct and to deliver projects. That’s actually a great strength because it allows us to seek strategic partnerships with players in the industry, where we can position ourselves for growth in the future,” he said.
“For example, one area that we’re starting to do development work on is what we call small-scale LNG. Small-scale LNG is like a virtual pipeline. Instead of building a pipeline between Trinidad and Grenada or Barbados, St Lucia or the Dominican Republic, what we want to do now is to build the infrastructure that allows us to transport the gas and the form of LNG and move it to different markets just like you would fuel in pipelines. So for us technical services may be designing and installing the infrastructure that allows us to secure parts of the gas value chain, particularly in a low carbon world,” he explained.
He said in addition to the Ghana work, NGC has been working very closely with ETECK.
He said the NGC has partnered with ETECK to install gas infrastructure to the Phoenix Park Industrial Estate and the Factory Road Estate.
“NGC is paid for providing those technical services. Both of them are under US$2 million each. What’s exciting for us, for example, with the Phoenix Park Estate, it is a green estate, this is one in which the intent is to start simulating and stimulating a lower carbon type future there.
“So, for us, it’s exciting because we’re using our engineering and procurement and construction capability to design and getting paid for doing it. We have a good portfolio that we’ve developed for technical services. And maybe that’s where we get a little more confident that this is something that we can do going forward. Or take on, you know, bigger work,” he said.
more
Image: pexels-pixabay
Read more
