The Tribune

I want to educate the Bahamian people about the process which allows the Government to forego competitive bidding processes in emergency situations, which allows them to request one bid for goods, works and services.

In June 2018 I had the opportunity to attend a workshop in Bridgetown, Barbados, which was sponsored by the Caribbean Development Bank (CDBH) and the Caribbean Disaster Emergency Management Agency (CEDEMA). The purpose of the workshop was to sensitise government procurement officers of the Caribbean on how to procure goods, works and services in emergency situations. This was timely because just over one year later Hurricane Dorian hit The Bahamas as a Category 5 hurricane, causing flooding and mass destruction on the north-west islands.

In Dorian’s aftermath, the Government announced it would be establishing a Disaster Reconstruction Authority. It was around this time that an international consultant and I were advised to create a draft emergency public procurement policy that would assist both the National Emergency Management Agency (NEMA ) and the DRA in the absence of a Public Procurement Bill.

The following are excerpts from the draft policy that was provided in anticipation that it would assist both agencies with their respective financial reports and audits. It was also a template that could be used in any given emergency situation. The draft title was the following, and I quote: Policy and procedures framework for NEMA emergency procurement and the use of simplified procedures.

This set out the procurement flexibilities available to NEMA in situations requiring timely and responsive purchasing to meet the demands associated with disaster or emergency relief, in compliance with the Disaster Preparedness and Response (DPR) Act 2008 and orders issued by the Prime Minister.

Definition of Emergency Procurement

A situation of emergency is defined as a disaster emergency declared by Order of the Prime Minister under section 27 of the DPR Act. This is issued on account of the threat or occurrence of a disaster, or any event in the maritime or aviation sector that the Prime Minister determines is a disaster having regard to the ensuing widespread loss of life or destruction of property (section 35).

Emergency procurement will be used to promptly execute public contracts in response to emergency or disaster circumstances. This will be done in an effort to remedy the conditions and meet urgent needs during a threatened disaster alert or in the event or aftermath of a disaster emergency.

General Policy Principles

In order to support emergency situations, NEMA is given latitude to meet the purchasing needs of goods and services generated by the emergency and permitted to forgo routine procurement procedures.

Although NEMA is not required to use a competitive procurement method, the agency must seek as much competition as possible considering the emergency circumstances.

Emergency procurement may only be used to address the immediate needs brought about by the disaster conditions, and may not be used for subsequent non-emergency-related procurement needs.

One year and ten months later there have been continuous cries from various sectors of our community demanding that the Government, in accordance with section 11 of the Disaster Reconstruction Authority Act, provide the audited accounts of NEMA and the DRA. This section clearly states:

Accounts and audit

1. Three months after the end of each financial year, the Authority shall submit a copy of the audited accounts to the minister, together with a copy of any report made by the auditor.

2. The minister shall lay a copy of such audited accounts before both Houses of Parliament, together with a copy of any such report made by the auditor on the accounts.

3. All contracts awarded by the Authority within a fiscal year shall be publicly disclosed at the end of the fiscal year.

I seriously doubt that we will see any reports during this parliamentary session., and all will agree that it is inexcusable - particularly as tools such as the above were provided to the Government.

Recently, the Government has been awarding contracts without going through a competitive bidding process, and critics have accused them of doing some of this under the guise of the Pandemic Emergency Orders. This type of tender process is called Limited Bidding, and I will quote the same from the Public Procurement Bill so that persons can come to their own conclusions as to whether the Government was correct in using such a process for the award of the many school repairs, sidewalk construction contracts and dozens of projects administered by the Department of Public Works.

1. Limited bidding

(1) A procuring entity may award a procurement contract by the limited bidding method of procurement where —

(c) for reasons of emergency or extreme urgency provided the circumstances giving rise to the urgency were neither foreseeable by the procuring entity nor the result of dilatory conduct on its part,

including where—

• The country is seriously threatened or impacted by a natural disaster, catastrophe, war or an event of force majeure.

• The life or quality of life or the environment may be seriously compromised.

• The condition or quality of goods, equipment, building or publicly-owned capital goods may seriously deteriorate unless action is urgently taken to maintain the capital goods in their actual value or usefulness.

• An investment project may be seriously delayed for want of an item of a minor nature, and the goods or services could not be obtained in time by means of competitive or selective bidding procedures.

Jeffrey Lloyd, minister of education, did state towards the end of last month that bids for the upcoming school repairs will go out for tender. However I wish to caution officials of the Ministry that section 34(c) (iv) should not be used in this instance because they have had months to create the scope of works and poor planning is not an excuse to avoid the competitive bidding process.

I learned recently that the Ministry of Financial Services, Trade and Industry and Immigration directed the Department of Immigration to terminate the contract of an existing vendor who provides meals for the detainees and officers of the Detention Centre, and to replace this vendor with another. I was shocked to learn this because I did not see an invitation to bid on the e-procurement supplier registry or in any of the newspapers, as this contract can be well over $300,000 per year. The only difference in the logistics is that the new vendor will be required to use a kitchen located at the Detention Centre site. I have two questions:

• Who is the vendor?

• What constituency does the owner of the company reside in?

Once you discover the answers to these questions then you will understand why the Public Procurement Bill is being delayed and best procurement practices are being ignored. I am surprised by this Ministry’s actions. However, the business community can in the upcoming months possibly expect a proliferation of contracts to be awarded this way.

NB: Daniel Ferguson, a retired chief petty officer with the Royal Bahamas Defence Force (RBDF), is a former procurement officer in the Ministry Health and Ministry of Finance, and former component co-ordinator for the Inter-American Development Bank (IDB) sponsored public financial management reform project, in particular the public procurement reform. He led the drafting team for the development of the Public Procurement Bill 2021, and public procurement regulations. He is a chartered member of the Chartered Institute of Procurement and Supply, with over 25 years of experience in public procurement.