Dr Mar­garet Rose

Last week, May 22nd, the Of­fice of Pro­cure­ment Reg­u­la­tion (OPR) de­liv­ered its rea­sons for ter­mi­nat­ing a pro­cure­ment process af­ter the first pub­lic hear­ing of Chal­lenge Pro­ceed­ings un­der the re­cent­ly ful­ly pro­claimed Pub­lic Pro­cure­ment & Dis­pos­al of Prop­er­ty Act (PPDP­PA).

The OPR ex­er­cised its pow­er un­der sec­tion 50(10)(e) to stop the North West Re­gion­al Health Au­thor­i­ty (NWRHA) from award­ing a con­tract for con­sul­tan­cy ser­vices for the con­struc­tion of a mul­ti-pur­pose fa­cil­i­ty at the Port-of-Spain Gen­er­al Hos­pi­tal to Prude­con Ltd.

The OPR stat­ed that the award was ter­mi­nat­ed “with im­me­di­ate ef­fect” for fail­ure to meet the ob­jec­tives set out in sec­tion 5(1)(b). The OPR took is­sue with the fact that the NWRHA, which had orig­i­nal­ly in­vit­ed pro­pos­als for con­sult­ing ser­vices for two (the de­sign and con­struc­tion) stages, pro­ceed­ed to award the con­tract for Stage 1 on­ly. The OPR took this de­ci­sion de­spite the fact that Prude­con was ad­judged the most ad­van­ta­geous ten­der, by the NWRHA, hav­ing scored the high­est on gen­er­al back­ground and or­gan­i­sa­tion, firm ex­pe­ri­ence and on cost­ing (though not the high­est over­all); and de­spite the in­clu­sion of a clause in the RFP ex­press­ly re­serv­ing the right of the pub­lic body to can­cel the process in its en­tire­ty or even par­tial­ly.

Sig­nif­i­cant­ly, the rea­son giv­en by the NWRHA for on­ly award­ing the con­tract for Stage 1 was that the cost pro­pos­als had far ex­ceed­ed their bud­getary al­lo­ca­tion for the project un­der the Pub­lic Sec­tor In­vest­ment Pro­gramme (PSIP) for fis­cal year 2024. They ar­gued that not on­ly was it pru­dent for them not to award the con­tract for both stages at this time, but that in choos­ing to award for stage 1 on­ly, their em­pha­sis was on ‘val­ue for mon­ey’ and en­sur­ing pub­lic con­fi­dence in the process.

Ap­par­ent­ly, this rea­son­ing was not good enough for the OPR. NWRHA ought to have pub­lished a No­tice of Can­cel­la­tion if it made the de­ci­sion to award on­ly a part of the con­tract.

Quizzi­cal­ly, the high­est-ranked firm that ini­ti­at­ed the chal­lenge pro­ceed­ings CEP Ltd on­ly re­quest­ed a re-eval­u­a­tion of the bid, not a ter­mi­na­tion of the en­tire pro­cure­ment process. There were no win­ners here. Now ap­prox­i­mate­ly eight months af­ter the ini­ti­a­tion of the pro­cure­ment process the cit­i­zens must con­tin­ue to await the much-need­ed mul­ti­pur­pose health fa­cil­i­ty.

What this case demon­strates is that for pub­lic bod­ies it can no longer be busi­ness as usu­al, and not nec­es­sar­i­ly in a good way. It is a trou­bling de­ci­sion where it ap­pears that the OPR seems to be tak­ing the pa­tri­ar­chal po­si­tion that pub­lic bod­ies are here to serve the new rules es­tab­lished by the PPDP­PA and not that these rules are there to serve pub­lic bod­ies, and ul­ti­mate­ly, the peo­ple of T&T.

Law can be viewed as a mech­a­nism for de­sign­ing so­lu­tions for a set of so­cial prob­lems. This func­tion­al­ist per­spec­tive in­forms the in­clu­sion of leg­isla­tive ob­jec­tives in new laws against which the ef­fec­tive­ness of a law can be as­sessed.

In or­der to un­der­stand the PPDP­PA and the pur­pose it was meant to serve, a brief his­to­ry may be ap­pro­pri­ate.

Ever since the scan­dalous bil­lion-dol­lar Pi­ar­co Air­port de­ba­cle where politi­cians and se­nior pub­lic sec­tors of­fi­cials were caught naked­ly en­rich­ing them­selves from the pub­lic purse, pub­lic pro­cure­ment and the state of its gov­er­nance have gained star­ring roles in civ­il so­ci­ety and po­lit­i­cal dis­cours­es in T&T. Many still lament that de­spite mil­lions spent on a pletho­ra of in­ves­ti­ga­tions in­clud­ing by Cana­di­an foren­sic ac­coun­tant Bob Lindquist in 2000 and the Bernard-led Pi­ar­co Com­mis­sion of En­quiry in 2002-2003, our lo­cal crim­i­nal jus­tice sys­tem has net­ted ze­ro con­vic­tions. In fact, were it not for the US courts’ ac­tions in re­spect of for­eign par­tic­i­pants, we would not have re­cov­ered any of the mon­ey.

The pro­mul­ga­tion of the new Pub­lic Pro­cure­ment & Dis­pos­al of Pub­lic Prop­er­ty Act (PPDP­PA) in 2015 can be traced back di­rect­ly to the spark of pub­lic out­rage at the dis­clo­sures em­a­nat­ing from the Pi­ar­co Com­mis­sion of En­quiry in 2002-2003 in which the 167 dai­ly sit­tings were tele­vised. This catal­ysed an un­prece­dent­ed, re­silient and pow­er­ful part­ner­ship be­tween civ­il so­ci­ety and pri­vate sec­tor to lob­by the gov­ern­ment to cre­ate more ef­fec­tive reg­u­la­tion over pub­lic of­fi­cials han­dling pub­lic mon­ey. There­after fol­lowed the 2004 Green Pa­per con­sul­ta­tions on Pub­lic Pro­cure­ment re­form spear­head­ed by the Joint Con­sul­ta­tive Coun­cil for the Con­struc­tion In­dus­try (JC­CC) and the Trinidad and To­ba­go Trans­paren­cy In­sti­tute (TT­TI), the Gov­ern­ment 2005 White Pa­per on pub­lic pro­cure­ment re­form, the 2006 pri­vate­ly-spon­sored draft bill and the 2009-2010 Com­mis­sion of En­quiry in­to the Con­struc­tion In­dus­try and UDe­COTT. This fol­lowed by the five-year joint gov­ern­ment and civ­il so­ci­ety com­mit­tee es­tab­lished to ra­tio­nalise the new law.

Ad­dress­ing cor­rup­tion

Our lo­cal move­ment for pub­lic pro­cure­ment re­form has been vig­or­ous­ly pro­mot­ed in some quar­ters as a treat­ment for our cor­rup­tion af­flic­tion. Naive­ly, some may have held the sen­ti­ment that once we have the law in place, we will be able to stop and per­haps even catch the “bad ac­tors” in our sys­tem.

The PPDP­PA is nest­ed with­in broad­er sys­tems of pub­lic ac­count­abil­i­ty and gov­er­nance found in the Con­sti­tu­tion and in­clud­ing the Ex­che­quer & Au­dit Act, the In­tegri­ty in Pub­lic Life Act, the Pre­ven­tion of Cor­rup­tion, Pro­ceeds of Crime Act, the Ju­di­cial Re­view Act, Free­dom of In­for­ma­tion Act and the com­mon law as it re­lates to, in­ter alia, fraud, col­lu­sion, bid rig­ging, and mis­fea­sance in pub­lic of­fice.

Giv­en the ex­ten­sive le­gal av­enues for ad­dress­ing cor­rup­tion in T&T, the role of the PPDP­PA in the fight to erad­i­cate cor­rup­tion is woe­ful­ly over-es­ti­mat­ed. The lack of law can­not be the cul­prit for our af­flic­tion. It is clear­ly a prob­lem of en­force­ment, both in cul­ture and ca­pa­bil­i­ties.

It is this an­ti-cor­rup­tion sen­ti­ment in pub­lic pro­cure­ment dis­cours­es that takes a top-down, rules-based ap­proach to pro­cure­ment law and em­braces a my­opic view of stick­ing to the process rather than al­low­ing for dis­cre­tion to achieve best val­ue out­comes. The fo­cus is on what we are buy­ing and how we are buy­ing it rather than why we are buy­ing and the com­plex, mul­ti­di­men­sion­al out­comes we are try­ing to achieve.

And per­haps it is a mis­un­der­stand­ing of the pur­pose of pub­lic pro­cure­ment law that could be at the root of the most re­cent de­ci­sion of the OPR. Is the pur­pose of pub­lic pro­cure­ment law to con­strain pub­lic bod­ies to com­ply with a set of rules? Or is there a more fun­da­men­tal pur­pose that em­pha­sis­es the max­imis­ing of val­ue for pub­lic mon­ey with­in an ac­count­able frame­work?

What should a pub­lic body do, if they find them­selves in a predica­ment where the bids come in over the bud­getary al­lo­ca­tion, and they have the funds to award on­ly part of a con­tract, which was al­ready di­vid­ed tech­ni­cal­ly and fi­nan­cial­ly in­to two stages? There was no al­le­ga­tion, nor any ev­i­dence of cor­rup­tion or mis­fea­sance on the part of the pub­lic body here. There was al­so no ev­i­dence nor find­ing that NWRHA con­duct­ed the eval­u­a­tions poor­ly or in­ap­pro­pri­ate­ly.

Was can­celling the en­tire project the best way to max­imise val­ue for pub­lic mon­ey? In the ab­sence of al­le­ga­tions of fraud or mis­fea­sance, should it not be in the dis­cre­tion of the ex­ec­u­tive man­age­ment of pub­lic re­sources what projects should start and what projects should be can­celled?

The PPDP­PA is a step for­ward for pro­cure­ment gov­er­nance in Trinidad and To­ba­go. How­ev­er, the leg­isla­tive frame­work is mired in prob­lems. Even the most ca­su­al ob­serv­er, of the al­most nine-year process of im­ple­ment­ing the 2015 Pub­lic Pro­cure­ment & Dis­pos­al of Prop­er­ty regime, will ac­knowl­edge what ap­pears to be a grow­ing leg­isla­tive re­morse on the part of the po­lit­i­cal di­rec­torate as ev­i­denced by the suc­ces­sive amend­ments seem­ing­ly geared to­ward re­duc­ing the re­mit of the OPR.

First re­duc­ing the terms of of­fice of the Reg­u­la­tor and mem­bers of the board, then ex­empt­ing sev­er­al cat­e­gories of ser­vices, then re­mov­ing gov­ern­ment to gov­ern­ment arrange­ments and fi­nal­ly the death-knell with the mil­lion-dol­lar thresh­old.

More­over, pub­lic sup­pli­ers and pub­lic sec­tor ex­ec­u­tives are re­port­ing, in­ter alia, con­fu­sion around pre-qual­i­fi­ca­tion and the le­gal im­pli­ca­tions of con­tract­ing with sup­pli­ers not reg­is­tered on the Pro­cure­ment De­pos­i­to­ry, com­pli­ca­tions around lines of busi­ness in the De­pos­i­to­ry and fail­ure to find sup­pli­ers af­ter they in­di­cate they are reg­is­tered, se­ri­ous chal­lenges sup­port­ing mi­cro-and-small busi­ness de­vel­op­ment, lack of sub­stan­tive guid­ance from the OPR (be­yond “this is what the law says”), fail­ure of the OPR to ap­prove any spe­cial guide­lines to date, and ac­tions be­ing tak­en against Named Pro­cure­ment Of­fi­cers with lit­tle to no re­sponse from the OPR.

These can all be teething prob­lems of a new sys­tem or there could be some­thing more fun­da­men­tal­ly wrong with the law and its in­sti­tu­tion­al frame­work in its cur­rent it­er­a­tion. The ele­phant in the room is, even if the OPR en­forces these rules, are these rules fit for pur­pose? And as im­por­tant­ly, or per­haps more so, giv­en the re­cent dis­clo­sures in the Au­di­tor Gen­er­al’s Re­port for 2023, is the OPR ma­jor­ing in mi­nors?

This ar­ti­cle is the first in a se­ries en­ti­tled ‘Nav­i­gat­ing the new pro­cure­ment regime’ (NNPR)

About the Au­thor

Dr Mar­garet Satya Rose, is se­nior part­ner and head of the gov­er­nance, pro­cure­ment & fi­nan­cial crime prac­tice at Lex Caribbean, at­tor­neys at law. Rose holds an LLB (Hons), an LLM in Cor­po­rate Com­mer­cial Law from the Uni­ver­si­ty of the West In­dies and a doc­tor­ate in pol­i­cy re­search and prac­tice with a spe­cial­ism in pub­lic pro­cure­ment law and pol­i­cy from the In­sti­tute for Pol­i­cy Re­search.

mar­garet.rose@tt.lex­caribbean.com