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Public procurement & Disposal - comparison between the Guyanese and T&T laws

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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.

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Public procurement & Disposal - comparison between the Guyanese and T&T laws

  1. 1. Public Procurement & Disposal of Public Property Afra Raymond B.Sc. FRICS Managing Director Raymond & Pierre Ltd raymondandpierre.com JCC Immediate Past-President afraraymond.net Conference on PUBLIC CORRUPTION &THE CURSE OF OIL Pegasus Hotel, Georgetown, Guyana Thursday 6th July 2017
  2. 2. Guyana's 2003 Procurement Act Defines 'Procurement' as the acquisition of Goods, Works or Services by a Procuring Entity [S.2 (j)]
  3. 3. What are 'Procuring Entities'? 'Procuring Entities' are defined as Ministries, Department,Agency/Unit of Government [S.2 (l)]
  4. 4. International Agreements 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. 5. Contract awards (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. (S.27 (5)
  6. 6. Cabinet Review The Cabinet shall have the right to review all procurements the value of which exceeds Fifteen million Guyana dollars. S.54 (1)
  7. 7. 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
  8. 8. TheT&T approach 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 Cross-Disbarment Eliminating the 'CorporateVeil' Independent Regulation and Dispute Resolution Value for Money Civil Society participation Procurement Review Panel
  9. 9. 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 contractors. BEETHAM WATER RECYCLING PROJECT Listing upcoming Procurements
  10. 10. RFPs and EoIs are both an opportunity & threat to Contractors and Suppliers 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. PHANTOM PROJECTS?
  11. 11. “Public Bodies” include - Municipal Corporations RHAs Statutory Bodies State-controlled Enterprises Service Commissions and Public Private Partnerships THA/RHA/BOLT - MILSHERV
  12. 12. Listing the Awards and Disposals S. 36 (1) obliges 'Procuring Entities' to 'promptly publish' details of awards 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.
  13. 13. VARIANCES S. 24 obliges OPR to report variances for each Procuring Entity
  14. 14. Challenge Proceedings 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)
  15. 15. 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, destroy or refuse to produce any book, record or document required for the purpose Penalty upon Conviction on Indictment— 5 Million & 10 years' imprisonment
  16. 16. Penalties Heavy Penalties, ranging from - $500,000 & one year's imprisonment to $5 Million & 10 years' imprisonment All penalties are custodial
  17. 17. 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'
  18. 18. Cross-Disbarment 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
  19. 19. The REAL RIDDLE The real question of who runs the system remains unanswered... 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?

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