Every gov­ern­ment has ac­cused its pre­de­ces­sor of abus­ing the State’s pro­cure­ment process for un­just en­rich­ment, ei­ther by its sup­port­ers or by cer­tain Cab­i­net min­is­ters. No ad­min­is­tra­tion has been im­mune from those al­le­ga­tions, though very few have had to an­swer charges or be con­vict­ed. Giv­en the num­ber of al­leged cor­rupt deals, the pub­lic has re­mained scep­ti­cal, pre­sum­ing that where there is smoke, there is fire.

Man­age­ment the­o­rists have long in­di­cat­ed that to achieve ef­fi­cien­cies in a dys­func­tion­al or­gan­i­sa­tion, sys­tems and pro­ce­dures must be stream­lined, changed, and peo­ple re­trained. 

To ad­dress the wide­spread be­lief that the state pro­cure­ment process was flawed, a pro­cure­ment law was de­signed to rem­e­dy this de­fi­cien­cy.

The Pro­cure­ment Act was first passed in 2015, amend­ed in 2016, 2017, 2020, and 2023, and came in­to ef­fect by le­gal no­tice 106 of 2023. Pub­lic pro­cure­ment means the ac­qui­si­tion of goods, works, or ser­vices in­volv­ing the use of pub­lic mon­ey. The act re­pealed the Cen­tral Ten­ders Act and es­tab­lished the Of­fice of Pro­cure­ment Reg­u­la­tion (OPR).

It gov­erns pub­lic pro­cure­ment and the re­ten­tion and dis­pos­al of pub­lic prop­er­ty based on the prin­ci­ples of good gov­er­nance, name­ly ac­count­abil­i­ty, trans­paren­cy, in­tegri­ty, and val­ue for mon­ey. 

The act de­fines “pub­lic mon­ey” as funds re­ceived un­der an Ap­pro­pri­a­tion Act or re­ceived from a pub­lic body. A pub­lic body is de­fined as a min­istry de­part­ment or di­vi­sion of a min­istry, mu­nic­i­pal cor­po­ra­tions, state-con­trolled en­ter­pris­es, the Ju­di­cia­ry, Par­lia­ment, and oth­er sim­i­lar in­sti­tu­tions.

Each “pub­lic in­sti­tu­tion” is re­spon­si­ble for its pro­cure­ment and de­vel­op­ing the rules that gov­ern the pro­cure­ment process. Best prac­tice guide­lines are ef­fec­tive­ly cap­tured and set out in the Hand­books pre­pared by the OPR, which give clear and prac­ti­cal guide­lines on what can be done at each stage to en­sure the pro­cure­ment ob­jec­tives and gov­ern­ing prin­ci­ples are met. 

There are lim­its and ex­emp­tions to the act that lim­it its cov­er­age. Ser­vices such as emer­gency med­ical, ac­count­ing, au­dit, le­gal ser­vices, debt fi­nan­cial ser­vices, or oth­er ser­vices as de­ter­mined by the min­is­ter or as rec­om­mend­ed by the OPR of­fice. Al­so ex­clud­ed are gov­ern­ment-to-gov­ern­ment con­tracts, treaty oblig­a­tions, or agree­ments be­tween the GORTT and in­ter­na­tion­al fi­nan­cial or­gan­i­sa­tions. Al­so ex­empt­ed from the act is the pro­cure­ment of goods and ser­vices un­der $1 mil­lion. For ex­am­ple, giv­en these ex­emp­tions, the At­tor­ney Gen­er­al sim­ply se­lect­ed the at­tor­neys he re­quired in the le­gal ac­tion with the Au­di­tor Gen­er­al. 

The act recog­nis­es that sys­tems must be mod­ernised if not ad­just­ed. Cen­tral to the act are the op­er­a­tions of the OPR, which is em­pow­ered with a wide range of func­tions to achieve its ob­jec­tives.

The ef­fec­tive­ness of the act de­pends on how well the OPR will achieve its mon­i­tor­ing func­tion. In­for­ma­tion tech­nol­o­gy is meant to play an im­por­tant role in this process.

Con­se­quent­ly, it must es­tab­lish a com­pre­hen­sive data­base to record ten­ders, the award of con­tracts, and the val­ue of the con­tracts for pub­lic in­for­ma­tion. This data­base will on­ly be as good as the in­for­ma­tion it con­tains and the sys­tems and pro­ce­dures to keep the data­base well-main­tained and up-to-date.

Sim­i­lar­ly, it must main­tain a data­base of all pre-qual­i­fied sup­pli­ers, con­trac­tors, ar­bi­tra­tors, me­di­a­tors, and ex­perts. It is re­spon­si­ble for set­ting stan­dards, com­pe­tence lev­els, cer­ti­fi­ca­tion, and train­ing re­quire­ments for pro­cure­ment of­fi­cers in all pub­lic bod­ies and in the OPR of­fice it­self.

The OPR is re­quired to pro­mote the use of tech­nol­o­gy. But while it may pro­mote the use of tech­nol­o­gy, pub­lic bod­ies will on­ly adopt new tech­nol­o­gy if they have the fi­nan­cial re­sources and man­age­ment will to make this tran­si­tion. 

As part of its reg­u­la­to­ry func­tion, the OPR is re­quired to pro­vide guide­lines, de­vel­op guides or mod­els, and stan­dard­ise bid­ding doc­u­ments and pro­ce­dur­al forms. S14 of the Act re­quires the OPR to au­dit and re­view the pro­cure­ment sys­tems across all pub­lic bod­ies and har­monise poli­cies, sys­tems, and process­es.

An­nu­al­ly, it must col­lect da­ta on all pro­cure­ment con­tracts and pub­lish a re­port for pre­sen­ta­tion to the Min­is­ter and Par­lia­ment. Where there is any ob­jec­tion to a spe­cif­ic pro­cure­ment ex­er­cise, the OPR is em­pow­ered to in­ves­ti­gate and sus­pend the process. 

Giv­en the OPR’s wide range of reg­u­la­to­ry pow­ers, it is crit­i­cal that the OPR’s staff be well-trained and its sys­tems be ro­bust if it is to be an ef­fec­tive agent of change. All or­gan­i­sa­tions are chal­lenged to re­main rel­e­vant and in good con­di­tion.

Read­ers should note that the Cen­tral Ten­ders Board was im­ple­ment­ed in 1965 to ad­dress sim­i­lar al­le­ga­tions of cor­rup­tion that spawned the Pro­cure­ment Act. State en­ter­pris­es were es­tab­lished to cir­cum­vent the bu­reau­cra­cy as­so­ci­at­ed with the civ­il ser­vice. 

It is im­por­tant to note that the pub­lic pro­cure­ment process is now meant to dove­tail with the an­nu­al bud­getary process and ap­pro­pri­a­tion cy­cle.

This may have been as­sumed be­fore, but the act now makes this an ex­press re­quire­ment. Achiev­ing this in prac­tice would rep­re­sent a sig­nif­i­cant im­prove­ment.

The act de­mands a cer­tain de­gree of or­gan­i­sa­tion and plan­ning in man­ag­ing the pro­cure­ment process. This cre­ates an op­por­tu­ni­ty to im­prove the op­er­a­tional per­for­mance of pub­lic bod­ies. De­ploy­ing project man­age­ment prac­tices would fur­ther en­hance ef­fi­cien­cy in util­is­ing pub­lic mon­ey.

Next week, we will look at the readi­ness of pub­lic bod­ies for these changes. 

Mar­i­ano Browne is the Chief Ex­ec­u­tive Of­fi­cer of the UWI Arthur Lok Jack Glob­al School of Busi­ness.