Fi­nance Min­is­ter Colm Im­bert’s de­ci­sion to seek an ex­emp­tion from the Pub­lic Pro­cure­ment and Dis­pos­al of Pub­lic Prop­er­ty Act to pre­vent the leg­is­la­tion from ap­ply­ing to last week’s high-lev­el meet­ings is puz­zling.

On June 29, 2023, Mr Im­bert caused a le­gal no­tice to be pub­lished in the Trinidad and To­ba­go Gazette, out­lin­ing that the pro­cure­ment leg­is­la­tion “does not ap­ply to the pro­vi­sion of ser­vices for events as­so­ci­at­ed with vis­its by for­eign heads of state, for­eign heads of gov­ern­ment or for­eign dig­ni­taries to the Gov­ern­ment of Trinidad and To­ba­go”.

The le­gal no­tice states that it shall con­tin­ue in force for a pe­ri­od of three months from June 29, that is un­til Sep­tem­ber 28. That means Mr Im­bert would like the pro­cure­ment leg­is­la­tion not to ap­ply to last week’s 50th-an­niver­sary cel­e­bra­tions of the Caribbean Com­mu­ni­ty (Cari­com), the 45th reg­u­lar Heads of Gov­ern­ment of Cari­com meet­ing, and the pro­posed vis­it to T&T of the Ashan­ti King, the As­an­te­hene Otum­fuo Os­ei Tu­tu II, at the end of this month.

The pur­pose of the pro­cure­ment leg­is­la­tion, which was ful­ly pro­claimed on April 21, 2023, is to pro­mote the prin­ci­ples of ac­count­abil­i­ty, in­tegri­ty, trans­paren­cy, and val­ue for mon­ey. Mr Im­bert’s le­gal no­tice sug­gests the Gov­ern­ment is pay­ing lip ser­vice to the prin­ci­ples that un­der­pin this im­por­tant leg­is­la­tion.

In­stead of in­sist­ing that it would on­ly treat with ser­vice providers who had reg­is­tered with the Of­fice of the Pro­cure­ment Reg­u­la­tor–or fa­cil­i­tat­ing the rapid reg­is­tra­tion of in­ter­est­ed providers–the Gov­ern­ment has opt­ed to pro­ceed along an in­fi­nite­ly more prob­lem­at­ic path. They are seek­ing the retroac­tive ap­proval of both Hous­es of Par­lia­ment that the pro­cure­ment leg­is­la­tion should not ap­ply.

In De­cem­ber 2020, Mr Im­bert agreed with two in­de­pen­dent sen­a­tors to make an im­por­tant amend­ment to the ex­emp­tion claus­es of the Pub­lic Pro­cure­ment and Dis­pos­al of Pub­lic Prop­er­ty Act.

While the Min­is­ter of Fi­nance re­tained the abil­i­ty to ex­empt “such oth­er ser­vices as the min­is­ter may, by Or­der, de­ter­mine”, the amend­ment en­sured that such an or­der should be sub­ject to an af­fir­ma­tive res­o­lu­tion. Ac­cord­ing to Par­lia­ment’s glos­sary, af­fir­ma­tive res­o­lu­tions man­date that an or­der “shall be laid be­fore both Hous­es” and that it “shall not come in­to force un­less and un­til it is af­firmed by a res­o­lu­tion passed by both Hous­es”.

This means there is a risk that Mr Im­bert’s le­gal no­tice, in the form of a par­lia­men­tary or­der, may not get past the Sen­ate, some of whose In­de­pen­dent Sen­a­tors re­ject­ed a neg­a­tive res­o­lu­tion to al­low the Min­is­ter of Fi­nance to ex­empt ser­vices from the purview of the Pro­cure­ment Reg­u­la­tor.

Such a sce­nario could lead to the ab­surd out­come of Par­lia­ment re­ject­ing an or­der that at­tempts to ex­empt the over­sight of the pro­cure­ment leg­is­la­tion for an event that has al­ready passed. But for the Par­lia­ment to ap­prove Mr Im­bert’s le­gal no­tice would set a very dan­ger­ous prece­dent of a Min­is­ter of Fi­nance us­ing the pow­er of ex­emp­tion to pick and choose the ser­vices that are sub­ject to the pro­cure­ment leg­is­la­tion.

This is sure­ly not a po­si­tion that the drafters of the leg­is­la­tion could have fore­seen or a sit­u­a­tion faced by oth­er pro­cure­ment reg­u­la­tors around the world. In­stead of seek­ing retroac­tive ap­proval for the ex­emp­tion of the pro­cure­ment leg­is­la­tion, it would sure­ly have been more ap­pro­pri­ate for the Gov­ern­ment to have sought the pri­or ap­proval of Par­lia­ment.