In a small society such as Trinidad and Tobago, it is not surprising that everything and everybody appears in the news. However, usually the debate or the discussion is of a short duration, usually overtaken by holidays and activities such as Christmas, Carnival, Eid, Divali, Easter and the list of holidays is interminable. It is not surprising, therefore, that one of the more critical issues, namely public procurement took the front burner for such a little while and then slowly fizzed out as Minister Jack Warner's referendum with the death penalty, not surprisingly, took centre stage. Many people hear the word public procurement and pay little attention to the importance or the implications in introducing mechanisms to allow for proper public procurement in any country. The lone voice, it seems, is Afra Raymond. Public Procurement, however, lays the very foundation by which any country functions since public procurement is basically a debate of "what to do" with public monies. It lies at the heart of Harold Laswell's now often quoted statement of politics which he defined as who "gets what, when, where and how." In other words, proper public procurement essentially involves curbing the excesses of government and government spending. It is thus all encompassing, involving issues of curbing corruption, grafts, kickbacks, patronage, and getting value for public funds. The debate of how to curb government excesses with respect to purchasing, is of course, not new. In the case of Trinidad and Tobago, even before the country attained independence in 1962, the departing colonials saw it fit to introduce the appropriate regulations by way of the Central Tenders Board Ordinance No22 or 1961. Coming out of this Ordinance was the Cost Accounting Division based in the Ministry of Finance and the Central Tenders Board. Over time, as the public sector expanded there were a number of amendments to the Central Tenders Board Act of 1961.
These included: The 1979 Ordinance
1991-the introduction of special ministerial tenders for the protective forces; 1993-the establishment of the Nipdec procurement agency outside the ambit of the Central Tenders Board. But even with these introductions, it appears that mechanisms to allow for public procurement has met with limited success. Indeed, it appears that allegations of misappropriation of public funds is as old as the country itself. Most people would remember the O'Halloran scandal, well known misappropriations at the level of public and state-owned enterprises, local government institutions (more recently the newspaper report of a million-dollar toilet), and questions involving the Legal Affairs Towers, as well as the Church of the Light House. But many would argue, the country did have regulations in place to curb such excesses and bring the perpetrators, if there were any, to justice. In order to understand why excesses of this kind occur, it may be useful to point out how, under the existing 1961 CTB Act, public procurement takes place. There are a number of processes in which the ministry identifies their requirement, advertise by way of the local gazette, takes in the various bids and then selects the most appropriate bids. There is absolutely nothing wrong with the process itself-which is transparent-the major challenge is the administration of the process, at the heart of it is the people involved in the process. More recently there have been calls by the current Government to bring a Bill in the Parliament to allow for the introduction of a new system of public procurement. A Paper-Supplemental Order Paper 2, dated June 25, 2010 was read in the House. The following were the contents of the paper. Section 28. A Legislative proposal to provide for public procurement and disposal of public property; Section 29. A Legislative Proposal to repeal and replace the
Central Tenders Board Act 1961
According to an article by Raymond which is quoted underneath in order to avoid inaccuracies-the main features of the new system should also include the creation of three new independent organs, namely: The Procurement Regulator (PR), with the duty to create overall guidelines and a common handbook to guide the public procurement process. The Regulator is appointed by the President in his own discretion and reports only to the Parliament. Agencies can create their own procurement handbooks, once these conform to the overall guidelines, as approved by the Procurement Regulator. The Public Procurement Commission (PPC) will be the investigative arm of the new apparatus to which complaints will be directed. The National Procurement Advisory Council (NPAC) will be purely advisory and comprises 14 members from a broad range of named private sector/civil society organisations-the JCC, Manufacturers' Association, Chamber of Commerce, Transparency Institute, as well as the Ministry of Finance and the Tobago House of Assembly. All expenses are to be drawn on the Consolidated Fund, with the Procurement Regulator and Advisory Council required to report annually to Parliament.
A complaints procedure
The proposed system will create clear rights to make complaints or report wrongdoing. Those rights are an important aspect of any modern procurement system and we propose three types of complaints/investigations: Potential tenderers/suppliers can complain, in the first instance directly to the agency with which the tendering opportunity resides, then, if that is not dealt with satisfactorily, they can complain to the Public Procurement Commission. Ultimately, the right to seek the protection of the High Court is preserved, once the established complaints procedure has been followed. The Whistleblower-We are proposing that whistleblowers be given legislative protection and practical means to bring their complaints direct to the Public Procurement Commission. The Public Procurement Commission can also, on its own initiative, start an investigation into an area of concern. There are strict time limits for acknowledgement and resolution of complaints. No doubt, the suggestion by Raymond and others which proposes a way forward for a new procurement regulator is interesting particularly as they stressed on the issue of appropriate sanctions. Yet, there are some other factors to be taken into consideration, particularly in the light of a newspaper report on February 3, 2012 in which it cited the purchase of two bridges which cost a total of $50 million, but had no set usuage.
Firstly, what mechanisms are to be introduced to allow for new and foreign tenders to take precedent over family and friendship connections? We all know that a particular tender does not necessarily go to the cheapest bidder but rather perhaps who the evaluating team consider to be the most appropriate. In many cases, too, there have been instances where the evaluating team represent a specific interest and this is more so in a small society where everyone knows everyone else, and where decisions are not taken at the level of a board level by rather can be made via telephone. A second consideration, of course, is the nature and composition of a state board. Of course, any state board is the creature of the existing Government. Finally, will there be a Code of Ethics which will define relationships and behaviours both by the contracting party as well as the administrators? It is always interesting for one in academia to look from a distance and see the pantomime playing out between the Government and the Opposition over such an important issue. What is even more critical is when one understands that there are a total of 26 ministries, 73 government bodies and 58 state enterprises-all purchasing services and goods with taxpayers dollars. As resources decline, proper procurement processes will accordingly be as vital as 'crix biscuit' if the country is to survive.