The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Opposition’s leader last night challenged assertions by a senior official that the Government cannot meet legal requirements to publish contract awards because a key post has not been filled.

Michael Pintard told Tribune Business that having a chief procurement officer in place was “not a prerequisite to fulfilling your obligations” under the law, and publishing details of all government contracts awarded between September 1 and November 7 last year, based on his reading of the Public Procurement Act.

He spoke out after Simon Wilson, the Ministry of Finance’s financial secretary, told a media briefing by the Prime Minister’s Office that the Minnis administration’s failure to follow the necessary public service protocols and appoint a chief procurement officer meant it was impossible for the Government to reveal these contract details as required by law.

However, Mr Pintard, who previously accused the Davis administration of violating the law on this issue, said the Act did not specify that a chief procurement officer must be in place for information on all government contracts to be released “within 60 days” of their award to the successful bidder.

This newspaper’s analysis of the Act appears to back the Opposition leader’s assessment, as clause 61 on “contract award notice” puts the disclosure burden squarely on the “procuring entity” - meaning the government ministry, department, agency or state-owned enterprise (SOE) issuing the tender - to publish the bidding outcome.

And, even if the chief procurement officer’s appointment was required first by the Act, and he had read it wrong, Mr Pintard argued that there is no legal impediment to publishing contract award details before this happens. Doing so, he argued, would demonstrate the Government’s commitment to procurement transparency and accountability, and taxpayer value for money.

“I must be missing something. I’m looking at clause 61 of the Act and I do not see any requirement for a chief procurement officer before the Government can actually report,” Mr Pintard said. “I don’t think they’re correct in relation to the law. We’re thinking it’s the entity that’s responsible, and they should proceed as the law is laid out.

“But, if their objective if to be accountable and transparent in giving reports on financial transactions, are they breaking any laws by providing the information on beneficial owners of winning bids and the amounts etc?”

He continued: “Let’s say the chief procurement officer is not in place, and somehow they’ve read into the law saying this person must participate in the process? Is there anything in the Act that says they will violate the law by proceeding if this person is not in place?

“If their objective is that they want greater transparency and greater accountability, what better way of doing that on the part of government than not just waiting to appoint this person? So great is our commitment to transparency and accountability, we are making the public aware because that’s required by the letter and spirit of the law.”

Section 61 of the Public Procurement seemingly places the burden on the “procuring entity”, not the chief procurement officer, to “publish within 60 days of the award of the procurement contract, a notice of the award of the procurement contract”.

This must include the winning bidder’s name and address; contract amount; bid title; name of the procuring entity; and bidding method used. The “within 60 days” timeframe, and Act’s implementation on September 1, means that the Government is in violation of the requirement to publish all contract awards between September 1 and November 7.

Mr Wilson, though, last night doubled down on his and the Government’s position that the chief procurement officer must be appointed before contract awards are disclosed because the entire Act revolves around this post and its functions.

Implicitly criticising the former Minnis administration, he told Tribune Business that the post should have been created via the Public Service Commission one year before the Public Procurement Act was implemented on September 1, 2021. Instead, it had been “left to fall into place and it doesn’t fall into place that easily”.

“It’s not a magic wand. There’s a process to getting this done,” Mr Wilson said. “By September 1, nothing was done in the public service to create the post of chief procurement officer.

“To me, it’s pretty straightforward. The Procurement Act revolves around the creation of a Procurement Department. The Procurement Department is responsible for enforcing the Act and ensuring compliance.” Its proper set-up, and that of the Public Procurement Board, had also not occurred before the Act was implemented on September 1.

Tribune Business sources yesterday said the Minnis administration had left Ministry of Finance official, Carl Oliver, as acting chief procurement officer. Mr Wilson said that while “somebody was handling” a procurement desk, they could not function as a chief procurement officer because the post had not been established.

“Who determines and sets the standard for departments to ensure uniformity and transparency,” the financial secretary asked. “The Act revolves around the work of the chief procurement officer, who has very specific functions, and whose job it is to try and bring us into compliance with the Act.

“If you talk him and the lawyer, that was an almost impossible task because the Act is drafted in such a way that compliance is almost impossible..... The chief procurement officer should have been created a year before the Act was fully enforced. For some reason the Act was enforced, and there was nothing else. It was left to fall into place, and doesn’t fall into place that easily.

“We cannot act unless that post is created. That post has to be created by the Public Service Commission. We cannot have an office for a post that does not exist. As far as I’m aware, no post was created. I could be wrong. I don’t think I’m wrong. That in itself shows this was not well thought-out. The nexus is the department and chief procurement officer. That’s the key nexus there.”