On the 8th December 2020, the Public Procurement and Disposal of Public Property (Amdt.) Bill, 2020 was passed in the Senate by way of 16 votes for, 6 votes against, 8 abstentions. The Bill contained 10 clauses which amend the original Act of 2015. The main concerns expressed by several bodies relate to exempt government to government contracts, agreements with international financial institutions and contracts with specialist services.
EUROCHAMTT is of the view that if certain types of arrangements are exempt from the national procurement regulations due to conflicts with the governing bi-lateral treaties, arrangements and agreements, it does not mean that they should be exempt from public scrutiny/ transparency, performance review, good governance and accountability by the procuring entity.
When done well, good procurement processes can contribute significantly to a positive socio-economic outcome. When carried out poorly or not carried out at all, it can lead to failed projects, a complete waste of taxpayers’ money and slow progress in our development.
A monitoring system is therefore proposed for monitoring annually the guidelines submitted by procuring entities for exempt services.
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EUROCHAMTT POSITION ON THE PASSING OF THE PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC PROPERTY (AMDT.) BILL, 2020
On the 8th December 2020, the Public Procurement and Disposal of Public Property (Amdt.) Bill, 2020 was passed in the Senate by way of 16 votes for, 6 votes against, 8 abstentions. The Bill contained 10 clauses which amend the original Act of 2015. The main concerns expressed by several bodies relate to exempt government to government contracts, agreements with international financial institutions and contracts with specialist services including, legal; debt financing for the national budget; accounting and auditing; medical emergency or other scheduled medical; or such other services as the Minister may, by order, determine, from the normal procurement regulations. The amendments allow for affirmative resolution of Parliament for the procurement of goods and services in these types of arrangements.
It is noted however, the Bill includes: ‘the Minister shall submit to the Office (of Procurement Regulation) (OPR), annual guidelines which outline the circumstances under which exempted services in subsection (5) may be procured. The Office shall forward a copy of the guidelines to the Speaker of the House of Representatives who shall cause the guidelines to be laid in Parliament at the earliest opportunity.’
Position Proposal 1 – Monitoring Mechanism for the Submission of annual guidelines for exempted services
EUROCHAMTT would like to propose that consideration be made for a monitoring mechanism in Parliament of these guidelines referred to in the Procurement Bill and quoted above.
Section 27(1) of the Public Procurement and Disposal of Property Act indicates that ‘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.’
EUROCHAMTT believes that whether the services are exempt or not, the plan or guidelines in the case of exempt services should be published and furthermore, presented to the OPR and laid in Parliament. Our expectation is that these plans and guidelines will be submitted prior to the start of any procurement process.
We have also noted that during the 11th session of Parliament, the Joint Select Committee on Finance and Legal Affairs conducted enquiries on matters related to the OPR set up. Given the mandate of this Committee, it may be ideally placed if required, to review and report to Parliament on annual guidelines submitted.
No Exemption of Public Scrutiny
Position Proposal 2 – No exemption of public scrutiny/ transparency, performance review, good governance and accountability by the procuring entity
We have read the Hansard reports on the Bill and the views expressed by the Law Association, the Joint Chambers, members of Parliament and others, as well as the media and we are of the view that the comments of these organisations should not be trivialised. Procurement legislation and the regulations are meant to promote transparency, integrity, accountability, and value for money in the use of public funds and resources. When done well, the regulations and processes in place can contribute significantly to a positive socio-economic outcome. When carried out poorly or not carried out at all, it can lead to failed projects, a complete waste of taxpayers’ money and slow progress in our development. EUROCHAMTT is of the view that if certain types of arrangements are exempt from the national procurement regulations due to conflicts with the governing bi-lateral treaties, arrangements and agreements, it does not mean that they should be exempt from public scrutiny/ transparency, performance review, good governance and accountability by the procuring entity.
All Government to Government arrangements whether the financial instrument is a grant, a gift, a loan with a 15 year moratorium, BOLT contract, etc. can:
- Be presented openly to the people of Trinidad and Tobago before approved and agreed;
- Include the detailed approved functional/ technical/ quality requirements developed, the process used to determine the requirements and the qualifications of the expert who determined those requirements;
- Allow for some level of tendering even if the bidders are from within the countries with the Government to Government arrangements, to the extent the expertise exists in these countries;
- Ensure bids are evaluated in a manner to ensure they firstly meet functional/ technical/ quality requirements then cost requirements.
Transparency, Engagement, Value for Money
Position Proposal 3–Assess past procurement experience of Government to Government Arrangements
While it can be argued that Government to Government arrangements have been used since 1976 to obtain infrastructure, goods and services, this is a different time. Citizens, civil society organisations and many in the private sector are no longer prepared to be left out of the discussions and are demanding a new approach to project selection, financial arrangements and approval that involves higher levels of transparency, stakeholder engagement and value for money process of procurement.
The Honourable Minister of Finance presented the following examples of Government to Government arrangements.
- 2006 – arrangement with the Government of China for the construction and financing of the National Academy for the Performing Arts
- 2011 – arrangement with the Government of China for additional work to that NAPA building
- 2013 – arrangement with the Government of China for the construction and financing of the Couva children’s hospital
- 2013 – arrangement with China’s Exim Bank for the construction and financing of a number of sporting facilities: The Aquatic Centre, Couva, The Cycling Velodrome, Couva, The Racquet Sports Centre, Tacarigua and three Multipurpose Facilities (Sangre Grande, San Juan and Chaguanas)
- 2013 – arrangement with the Government of Austria for a design, construction and financing of a hospital in Point Fortin
- 2019 – arrangement with the Exim Bank (the EFIC) of Australia for the financing of two Cape-Class vessels as well as financing of two fast ferries, the APT James and the Buccoo Reef.
- 2019 – An arrangement with Austria following on the previous arrangement for the Point Fortin Hospital, for a new hospital in Sangre Grande
- 2018 – Arrangement with the Government of China for the construction of an industrial estate, Phoenix, Park, in the Couva area.
EUROCHAMTT believes that the experience with these projects, including the performance of the goods and service providers, the quality of the work, nature of the financing arrangement, collateral, terms and conditions agreed and current status of the agreement should be carefully assessed in order to come up with the annual guidelines to be submitted in the future to the Office, the Speaker and the Parliament for Government to Government arrangements.
Position 4 – Internationally Funded Projects
EUROCHAMTT is less concerned when projects are funded by international bodies such as the European Union, the Inter-American Development Bank, the World Bank and all of their affiliated entities. These bodies have financed projects in Trinidad and Tobago and are well known for their strict procurement regulations which form part of their agreements with Governments. These regulations are consistent with best practices in procurement regulation and promote high levels of transparency, accountability, value for money etc.
In Case of an Emergency
Position Proposal 5–Consider Alternative Contracts for Special Services
The need to select services in emergency, short time frames or specialist services where there may exist limited accessible available experts, may make it exceedingly difficult and costly to apply the normal procurement regulations. However, there are well established processes such as ‘framework’ contracts, shortlists or single offer contracts that provide for quick selection without compromise to transparency, integrity, accountability and value for money.
A framework contract is commonly used for multiple supplies, over a long term by a pre-approved supplier.
A shortlist approach may involve the presentation of 3 to 5 pre-qualified bidders known to have the expertise to supply the goods and services and a simple request for quotation for the specific service required at the time when needed. This may be applied for contracts below a certain value.
Single offers may be used when the expertise is very specialised and not easily available. This would require justification and proof.
In conclusion, good governance in procurement of goods and services is needed to aid this country’s future socio-economic development and even if certain situations are exempt from the procurement regulations, transparency, accountability, integrity in public office and value for money is expected. Therefore, no use of public funds should be without public scrutiny. EUROCHAMTT looks forward to the annual guidelines to be presented to Parliament for all exempt services.