The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

Governance reformers yesterday said it was “absolutely essential” that the Government immediately start publishing details of public sector contract awards as mandated by law to “build trust” in the new procurement system.

Matt Aubry, the Organisation for Responsible Governance’s (ORG) principal, told Tribune Business it was unclear why the Davis administration had thus far failed to comply with the current Public Procurement Act’s stipulation that the identities of winning bidders and the value of contracts be disclosed within 60 days of their award.

This was especially since the reforms to this Act, which the Davis administration has tabled in Parliament, contain much the same disclosure requirements and the same 60-day disclosure requirements.  The Government has previously argued that the Act requires a chief procurement officer to first be appointed before these awards can be published, but this newspaper’s review of the legislation found no link between the two actions.

“It’s absolutely essential,” Mr Aubry said of the need to obey such disclosure requirements. “This system needs to establish and build trust in the procedures. It’s particularly important for those representatives in vulnerable areas such as micro, small and medium-sized businesses, Family Island-based businesses and women-owned businesses.

“Those are entities that the Government has put a lot of money towards, a lot of resources towards, to foster local businesses that can take advantage of the procurement system on a fair, open and transparent basis. It’s essential that translates into real change, otherwise it undermines confidence in this system.

“We’ve talked to a lot of small businesses to encourage them to get on board with this type of legislation, as it’s benchmarked to global standards, but there are still so many that are sceptical.... We’ve got to reinforce and follow the rule of law, and reinforce the principles that are enshrined in this legislation. This is so critical because it gives the framework for what we want to achieve.”

Speaking after ORG unveiled its benchmarking review of the Public Procurement Bill tabled recently in Parliament by the Davis administration, Mr Aubry voiced concern that the reforms had eliminated the power the Ministry of Finance’s financial secretary presently has to levy sanctions on both public officials and bid participants who break the rules.

Arguing that this was critical to giving the Act “teeth”, he added that such a clause provided “checks and balances, including internally” within the Government and its agencies, while also “incentivising folks both in public bodies and in the procurement process to adhere” to the law and regulations.

“The current Bill removes a section that allows for the financial secretary ‘upon a report by the Auditor General, the director of internal audit, the treasurer, the head or deputy head of the procuring entity, or any senior officer employed in the procuring entity to impose a surcharge on a current or former employee or agent of a procuring entity who has subverted the regulated procurement process’,” ORG said in its review.

“This section included terms for notification, withdrawal and appeal of the surcharge. This section has precedent regionally in law from Jamaica, reinforces adherence to government regulations and creates a mechanism for retrieving lost monies through substandard procurement practices. Removal of the section does not support the highest level of accountability.” ORG as a result is calling for its reinstatement along with more specifics as to how it will actually work.

Mr Aubry voiced to Tribune Business concerns that several areas of the existing Act are set to be repealed, and removed, “for ease of administration rather than the interests of the public and protecting investors”. ORG is also urging the Government to retain the Procurement Review Tribunal, which in the current law is the body that hears appeals and challenges to contract awards, but will be eliminated in the proposed reforms.

Instead, the existing Tax Appeal Commission will have its role expanded to hear procurement-related matters. ORG said in its review: “The current Bill removes the establishment of a Procurement Review Tribunal as per the 2021 Act. The Tribunal is defined as the Tax Appeal Commission according to the 2020 Tax Commission Act, which describes the function and composition of this commission but is not currently available on the government website for public review.

“The Tax Commission president is appointed with advice solely from the Prime Minister. The 2021 Act has the appointment of the Tribunal president by the Governor-General acting on the direction of the Judicial and Legal Service Commission. This establishes a greater level of independence.”

Suggesting that the Tax Commission’s members may not be best suited to hear procurement-related matters, ORG added: “Additionally, the Tax Commission members are required to be, appropriately, ‘a counsel and attorney, licensed accountant or licensed broker experienced in taxation matters or assessment of the real property’.

“The 2021 Act required that the Tribunal be members who ‘may include economists, surveyors, accountants or persons with substantial and relevant experience in public procurement and related fields of expertise’. This is more suitable for deciding issues of procurement.

“Also, the Tax Commission Act places a fiscal responsibility and burden of proof on the claimant. This may disincentivise and disadvantage bidders, particularly SMEs, who may have minimal financial and administrative resources, in making claims for appeal. As noted in countries such as the UK and Australia, SMEs are particularly challenged in accessing government contracts by bureaucracy.”