A Threshold: The Government’s proposal to allow a threshold of expenditure to deal with day-to-day procurement matters is nothing new and sensible.
The non-discrimination, transparency, and fairness policies must still apply, and it is reasonable that a purchase estimated to cost $200K and another at $100 million deserves different proportionality.
A threshold existed under the old Central Tenders Board Act, allowing permanent secretaries and the chief administrator of the Tobago House of Assembly or officers of statutory bodies (other than a Municipal Council) to act for the Board—The Central Tenders Board—in procuring works and services up to the value of $1.0 million.
Lower-level officers had a limit of $25K. That law stated that the officers could not give themselves the authority to subdivide contracts. In the case of municipal councils, the chief executive officers’ limit was $300K.
In addition, the regulations mandated there had to be a ministerial committee, including the Permanent Secretary responsible for the administration of Local Government for procurement costing up to $500K.
The limits in the old law were sensible.
No sooner is a law made than a way around it is discovered—Italian proverb
It is eight years since the framework Public Procurement and Disposal of Public Property Act, 2015 was assented. During that time, there have been several significant but troubling amendments—with loud objections.
The meeting of Parliament this week creates an opportunity for Parliament to introspect and serve the public interest by committing to reviewing the amendments under Act No 27 of 2020, with a view to establishing appropriate methods and processes to guide public bodies in procuring special and specialised services.
The Framework Act of 2015 is good law that allows flexibility in dealing with extraordinary events and situations.
The General Guidelines–Procurement Methods and Procedures under sections nine and ten make provisions for “Urgent Public Interest” and “Emergency Procurement” and include Single Source Procurement, which is a non-competitive procedure for the engagement of a selected supplier or contractor even when others are providing the same service.
The guidelines cut out lengthy bidding procedures when necessary while ensuring quick turnarounds and transparency.
Item 5 of the Public Procurement and Disposal of 2020 Public Property (Amendment) amending Section 7 of the act, exempted from the act legal services, debt financing services for the national budget, accounting and auditing services, medical emergencies or other scheduled medical services, the Judiciary, and services as the “Minister may by Order, determine,” subject to affirmative resolution of Parliament.
While the affirmative resolution is the redeeming feature, why create a situation where the Government must run to Parliament every time the minister thinks it is necessary to exempt a service?
There is a rather negative nuance to exempting legal, accounting, and auditing services. The law made provisions for procuring sensitive and special services and for urgency.
All that was necessary was the establishment of specific regulations and procedures under Part VI of the Guidelines rather than a total exemption from the law.
I couldn’t find a similar law that absolutely exempted public procurement, including defence procurement.
Instead, foreign laws sensibly made exemptions from the methods and processes that apply to general public procurement, allowing for special regulations and guidelines for sensitive and specialised services eg, Jamaica and the UK laws.
The policymakers ought to have balanced the exigencies in procuring these exempted services and the public interest.
The amended law, unfortunately, potentially serves the interests of the owners of the services exempted and potentially corrupt public officials.
Laws, like the spider’s web, catch the fly and let the hawk
go free—Spanish Proverb.
