Presentation made at Conference on Public Corruption & the Oil Curse organised by the Caribbean Institute of Forensic Accounting (CIFA), the Guyana Oil & Gas Association and the the African Business Roundtable at the Pegasus Hotel in Georgetown.
Public procurement & Disposal - comparison between the Guyanese and T&T laws
Public Procurement &
Disposal of Public Property
Afra Raymond B.Sc. FRICS
Managing Director Raymond & Pierre Ltd
JCC Immediate Past-President
PUBLIC CORRUPTION &THE CURSE OF OIL
Pegasus Hotel, Georgetown, Guyana
Thursday 6th July 2017
Guyana's 2003 Procurement Act
Defines 'Procurement' as the acquisition of
Goods, Works or Services
by a Procuring Entity
What are 'Procuring Entities'?
'Procuring Entities' are defined as
4. The provisions of this Act shall apply to any procurement
unless they conflict with any provisions made applicable by
virtue of an international agreement..
(5) The procurement contract shall be awarded to the supplier or
contractor that submitted the lowest-priced quotation that
complied with the requirements of the invitation.
The Cabinet shall have the right to review all procurements
the value of which exceeds
Fifteen million Guyana dollars.
Some criticisms of the current Act
Limited scope – Goods,Works and Services
Excludes International Agreements - G2G
Silent on out-turn costs – ie No Performance data
Cabinet Review (!)
Awards on Cost (!)
Modern procurement approaches are ignored -
ie PPP/BOLT, Design/Build etc
Private Sector/Civil Society Group
Public Money – Lord Sharman 'Holding to Account' (2001)
Disposal of Public Property
Pre-publication of Intended Procurements
ProcuringAgency is broadly defined
Eliminating the 'CorporateVeil'
Independent Regulation and Dispute Resolution
Value for Money
Civil Society participation
Procurement Review Panel
27. (1) A procuring entity shall—
(a) no later than six weeks after the approval of the National
Budget, publish on its website or in any other electronic format,
information regarding all planned procurement activities for the
following twelve months;
SS. (3)That does not constitute a solicitation; oblige a procuring
entity to issue a solicitation; or confer any rights on suppliers or
BEETHAM WATER RECYCLING PROJECT
RFPs and EoIs are both an opportunity & threat to Contractors
OPR Regulations must eliminate loopholes which allow
'Phantom Projects' to exist, in any form...
Projects published via RFP, Invitation toTender or EoI must be
listed as per S. 27 (1) (a) and have approved funding identified.
“Public Bodies” include -
Service Commissions and
Public Private Partnerships
THA/RHA/BOLT - MILSHERV
Listing the Awards and Disposals
S. 36 (1) obliges 'Procuring Entities' to 'promptly publish' details of
S. 37 to submit Quarterly Reports detailing awards to the OPR
S. 24 requires the OPR to Report annually to Parliament on all
procurements and disposals
Disposals are not listed in the Act for Reporting via Procuring Entities,
so will have to be in Regulations.
S. 24 obliges OPR to report variances for each Procuring
PartV of the Act refers
Any Contractor or Supplier may bring a challenge to the decisions
of a Public Body – S.50 specifies these results -
Suspension of the procurement proceedings or ongoing contract -
SS.(4) (a) & (b)
Orders to produce information & documents - SS. (5)
OPR can Prohibit actions, impose corrective actions, overturn
contract awards, confirm decisions taken or award costs. SS (10)
Whistleblowers and the Evidence
S.40. A person shall not be dismissed, suspended,
demoted, disciplined, harassed, denied a benefit or
otherwise negatively affected...” forWhistleblowing
Penalty upon Summary Conviction is $500,000
and imprisonment for one year
No mention of the hazards of litigation
S.46. No person shall withhold, conceal,
refuse to produce any book, record or
for the purpose
Penalty upon Conviction on Indictment—
5 Million & 10 years' imprisonment
Heavy Penalties, ranging from -
$500,000 & one year's imprisonment to
$5 Million & 10 years' imprisonment
All penalties are custodial
Who is really responsible?
“S. 61 (2) a public body shall have a procurement officer who
shall be responsible for public procurement and the disposal
of public property...”
The removal of the 'CorporateVeil'
Procuring Entities must report offending contractors or
suppliers to the OPR for ten-year disbarment S.59 (7)
Contravention of this section by 'any person' carries a
penalty of $1M & 5 years' imprisonment
S. 59 (10)
This is the Ultimate Penalty
The REAL RIDDLE
The real question of who runs the system remains
There is a potent gap between the 'planned procurements' in
S.27 1a and the OPR's Annual Report to Parliament...
Can Ministers give specific instructions to State Bodies?