The dereliction of the Public Procurement Commission
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.
image: Contract-agreement-signature