The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Governance reformers say the proposed new procurement law grants “more latitude” to ministers and officials in approving higher value contracts that do not have to go before Cabinet.

Matt Aubry, the Organisation for Responsible Governance (ORG) executive director, told Tribune Business in a recent interview that the revised “financial thresholds” which determine who approves public sector contracts “requires us to look a little at the implications of that”.

He explained that while the changes might be designed to ensure government procurement did not become “bogged down” in overly bureaucratic and cumbersome approvals processes, this had to balanced with “a level of oversight” so that all parties involved have confidence in the award’s integrity.

Mr Aubry told this newspaper that the revised Bill, which is designed to replace the Act introduced by the Minnis administration, “puts a lot of power in the hands of the minister” responsible for the agency running the bidding process. Under the previous Act, they can approve contract awards valued between $50,000 and $250,000, but the Bill tabled in Parliament yesterday has expanded these thresholds to between $25,000 to $400,000.

The Prime Minister told the House of Assembly this was intended “to provide greater flexibility and transparency to ensure procuring entities can operate and enter into agreements efficiently and swiftly”. Meanwhile, contracts worth between $400,000 and $2.5m can now be approved by the seven-person Public Procurement Board, when the previous threshold was between $250,000 and $1.2m.

It is only contracts worth $2.5m and above that now have to be scrutinised and approved by the Cabinet once it receives the Board’s recommendations. Elsewhere, Mr Aubry said he was unclear what the challenges had been to the Government publishing all contract awards, including the name of the winning bidder and the value, within 60 days of the decision being taken.

The same requirements are contained in the new Bill, although extra language has been added to state that the award of a contract for the provision of “goods, works and services” must be declared publicly within 60 days. Mr Aubry questioned whether this represented a carve-out of certain types of contract award from the disclosure requirements, although this was not clear.

The Davis administration has branded the current Public Procurement Act as unworkable in practice because it imposes too many onerous and bureaucratic requirements on government to the point where it cannot function efficiently. However, it has not published details on the winning bidders, the nature of the contract, and the total amount awarded for all government contracts issued between September 1 and end-July 2022 as the law stipulates.

The existing Act presently requires the Government and all its ministries, departments and agencies to publish - within 60 days of every contract award - the winning bidder’s name and address; contract amount; bid title; name of the procuring entity; and bidding method used. This means that all government contracts awarded up to August 6 should now have been publicly declared, but none have.

The Davis administration has argued that its predecessor’s failure to follow the necessary public service protocols, and appoint a chief procurement officer to oversee the Act’s implementation, meant it is impossible for the Government to reveal these contract details. However, Tribune Business’ analysis of the present Act did not reveal anything to suggest disclosure hinges on such an appointment.

The Public Procurement Act, passed by Parliament under the former Minnis administration and brought into effect on September 1 last year, was intended to end the patronage system that has dominated the awarding of government contracts for decades with bids going to political supporters, family, friends, lovers and others with the right connections as opposed to being issued on merit.

Implemented just two weeks before the general election, it was also intended to bring greater transparency and efficiency to the millions of dollars awarded in public sector contracts annually by having the process held out in the open. And, especially given the country’s present fiscal challenges, the law was designed to generate value for money for Bahamian taxpayers by ensuring the best bidder won the contract, thus reducing if not eliminating any wastage and corruption.

However, the Act has been the subject of an intense political battle for much of the past year which culminated in last week’s threat by the Opposition Free National Movement (FNM) to initiate a Judicial Review legal action in the Supreme Court over the Davis administration’s alleged violations of the Act by failing to publish details of contract awards.

However, the Davis administration has argued that the legislation is overly-bureaucratic and cumbersome, making it unworkable in practice. It says this has ensnared simple purchases in red tape, and added to costs and inefficiency. It also pointed out that the accompanying regulations and guidance notes, and multiple other requirements needed to give the law effect, were never put in place.