The Tribune

By MALCOLM STRACHAN

IMAGINE if you will the following scenario: You’re driving home, and the police pull you over. When you ask what you did wrong, the officer tells you that you were speeding and so you have broken the law. Not to worry, you say, I’ll change that law when I get home, and off you drive, leaving behind the officer shouting after you that you’ve broken the law right now.

Which brings us to our current government.

It has been a year-and-a-half since the Public Procurement Bill was passed, and a year since its enactment – and yet we find ourselves in a position where the current government seems to be essentially ignoring it, while promising to change it at some indeterminate point in the future.

First things first, the law laid down procedures required to bring about transparency with regard to public contracts.

When it was introduced, then Prime Minister Dr Hubert Minnis said that all government contract awards would be published online and in newspapers.

He said public information about contracts “will state what the contract is for, who it was awarded to and the dollar value of the contract”.

He added: “This will help to address all the whispering, the rumours and the political mischief that has gone on for decades in our country. The citizens of The Bahamas will be able to see who is getting government contracts, for what purpose and in what amounts.”

That is precisely what we cannot see at present, with the current administration not bothering to attend to the spirit of the law let alone abide by the letter of it.

There have been excuses put forward – Economic Affairs Minister Michael Halkitis said there were no manuals or regulations that the Davis administration could find, while in January Financial Secretary Simon Wilson later claimed the government was hindered because a chief procurement officer had not been appointed.

That latter excuse brought a brusque response from FNM leader Michael Pintard, who pointed out that the law did not specify that such an officer had to be in place for information on all contracts to be released within 60 days of their award.

Either way, it’s been a long time since January and still nothing has moved forward. In fact, the government is planning to throw the whole law away and write a new one.

Last week, Attorney General Ryan Pinder said: “The Public Procurement Bill, initially, we looked to amend certain aspects of that that we found troublesome. But once we were looking at in more depth, we figured a full rewrite of that legislation was necessary in order to provide more transparency, better ease of administration and ability to govern effectively on that bill and ability to be able to govern with immediate priority and instances that require it.”

So what were the problems?

He said: “A lot of times the portal didn’t function appropriately and the mechanisms that were in place restricts your government from reacting immediately in times of exigency that you would recall and know we’re still in a pandemic, we still have certain exigencies with respect to health reform, and our health care and the necessity to react quickly.”

So – that sounds like an IT problem and a need for the ability to act in times of emergency. How does that affect revealing regular contract awards? Mr Pinder cited examples such as needing to bring in an X-ray machine immediately, but how many times in practice is that actually going to happen?

More to the point, if changes need to be made, go right on ahead and make necessary changes – but right now the law is the law and you need to obey it.

Dr Duane Sands, the FNM chairman, was quick last week to respond on that point. He said: “Its clearly not responsible governance. Once you change the law, you do it the way you want. But until then, you must abide by the law. You can’t expect the general public to do as you say and not as you do.”

He added: “It is very disingenuous now that they have approved a number of contracts for millions of dollars and it is in defiance of the law. There is no excuse, they have willfully, neglectfully and regretfully broken the law. Guilty, your honour, no explanation.”

Steffon Evans, the assistant director of the Organisation for Responsible Governance, also expressed concerns. He said: “It is going to be important in this process of transition for there to be a plan to ensure that everything that has taken place since the bill was enacted, those contracts in that period, definitely need to be incorporated into the strategy of transition on the way forward and not simply abandoned. That would definitely not be a good example of responsible governance.”

That’s a bit of a word salad but the point is the government cannot be allowed to ignore the law, hand out fistfuls of contracts while they rewrite the law, then not report those under the new legislation, as and when that may be. That would not just be a lack of transparency, that would be as dark as midnight when the power blows at BPL yet again.

The Davis administration, quite simply, has not complied with the reporting requirements of the Public Procurement Act. Note that word – it’s requirements, not an option.

So what do you do if the police officer pulls you over and tells you that you broke the law? Well, off you go to court.

So what do we do if the government breaks the law and tries to pretend it doesn’t matter?

Rewriting the law isn’t likely to be a swift process. How many contracts will be handed out under cover of darkness in the meantime? Where are the attempts to comply? Where is the voice in government saying these are the specific hurdles that stop us from following the law, but this is the full list of contracts we have awarded in the meantime?

If there is a need to allow emergency awards in the event of disasters, by all means file your amendments, and quickly given that it is hurricane season – but in the meantime, follow the law. Or why should anyone else?