It is no surprise that yet another objection by the Government has now suddenly emerged to the establishment of the Public Procurement Commission (PPC). After the AFC’s campaign and the Private Sector Commission’s public and forceful call, the Government has been on a propaganda blitz. It has paraded its record of legislation, publicized the work of the National Procurement and Tender Board (NPTB) and held a seminar for stakeholders. All this is to justify its resolve not to further advance the process of transparency in the face of continuing and credible allegations of corruption in procurement.
In 2000 the Constitution Reform Commission saw the need for a PPC, recommended it and in 2002 the National Assembly unanimously approved the amendment to the Constitution to provide for it. The Constitutional Commission, which is subject to law, would have the same review function which the Government well knows.
The Procurement Act was passed in 2003, ten years ago. Section 54 gives the right to Cabinet to review and object to an award by the NPTB. This right comes to an end when the PPC is established. The Opposition had objected to a permanent Cabinet no objection in the Bill. The Government agreed to an amendment to terminate Cabinet no objection when the PPC was established. Now that public pressure is mounting for the establishment of the PPC, it is reneging on its own position, finding excuse after disingenuous excuse.
The Attorney General, the Hon. Anil Nandlall, has argued that since the Government is answerable to the electorate for the expenditure of public funds it must have a role in the procurement process. Surely his distinguished predecessor, Mr. Doodnauth Singh, revered by Mr. Nandlall, at the time when he led the negotiating team in the National Assembly and agreed to terminate the role of Cabinet upon the establishment of the PPC, would have recognized of this principle to this situation. Mr. Nandlall knows and fails to acknowledge that Mr. Doodnauth Singh would have known, that by the time the contract is awarded by the NPTB, the Cabinet would have already approved the expenditure by presenting it in the Budget Estimates. Not only would the Cabinet have approved it, but the National Assembly would have done so as well. The Cabinet has thereby discharged the first limb of its responsibility.
Now it must ensure that the contract is awarded transparently and in accordance with law. The Procurement Act and the Constitution, both supported by the Government, have established the NPTB and the PPC, charging them with exactly that responsibility. This has been done because the Government is not equipped to perform this task. Over the past weeks the Government has been publicly setting forth the provisions of the Procurement Act to show that its work is above board and that contractors have a right to appeal. If there is a PPC to review this process, the Cabinet has discharged the second limb of its responsibility by ensuring transparency.
Finally it must ensure that public funds are properly spent and accounted for. The monitoring of the execution of the contract and the expenditures are done by engineers, accountants and project execution officials employed by the Government in various Ministries for this very purpose. These are further monitored by the constitutionally appointed Auditor General who is responsible to the National Assembly. The Cabinet has therefore discharged the final limb of its responsibility.
Therefore, the desire for second guessing by the Cabinet of the work of the NPTB can have no possible justification at all much less after the supervisory powers of the PPC are brought into play. There has to be other motives for the Government’s demand for Cabinet no objection. The obvious one that immediately comes to mind, having regard to all that is said above, is that the Government intends to sabotage the establishment of the PPC. The other is the now accepted perception that the Government is determined to do nothing to stop corruption.
In the larger interest of establishing the PPC, the Opposition ought not to reject the Government’s demand, but should call its bluff. Section 54(3) of the Procurement Act provides that “if the Cabinet objects to the award, the matter shall be referred to the procuring entity for further review.” It should agree to Cabinet no objection but propose that the section should be further amended to provide that the objection should be for defined reasons with the necessary particulars substantiating the reasons. The NPTB should then convene a hearing to which both parties are invited and evidence taken on the basis of which a conclusion should be arrived at. Either party should then have the right to appeal the decision to the PPC.
A contractor who has gone through a lengthy and expensive exercise to tender for a project and who succeeds after the rigorous examination provided for by the Procurement Act is entitled to due process, a right which the Attorney General cannot deny. The absence of a requirement for the Government to provide reasons would be highly unfair to give licence to the Cabinet to whimsically or maliciously object to an award and then to have a “review” of that award by the NPTB who are employees of the Government. It does not matter how high the integrity of these officials, it would be seen to be unfair, and justice will not be seen to be done, if the Cabinet is allowed to subvert the procurement process after it has gone through all the procedures. This compromise position, if supported by the Opposition, would test the bona fides of the Government.