2 days Ago By [email protected] (Melissa Maynard)
PUBLIC bodies that have breached the laws in the Procurement Act should be charged, past president of the Joint Consultative Council for the Construction Industry (JCC) Afra Raymond has said. Raymond made the comment on Monday while speaking at part two of the Caribbean Corporate Governance Institute (CCGI) Virtual Procurement Series. His statement came on the heels of the first report of the Office of the Procurement Regulator (OPR) which was laid in Parliament last week.
The Public Procurement and Disposal of Public Property Act, 2023 became law last year. The report found more than 60 entities in breach of the law, Procurement Regulator Beverly Khan stated. Apart from Raymond, managing director of Raymond and Pierre, the virtual series which focused on the implications of the procurement law, included attorney Kelvin Ramkissoon, JCCI president Fazir Khan, and manager of Contracts and Procurement National Gas Company (NGC) Keith London.
Raymond commended the OPR for its work in producing its first comprehensive report, but underscored that more needs to done. He said it is critical to level charges against those found in breach of the law. “I was staggered to see that you have organisations like UDeCOTT (Urban Development Corporation of Trinidad and Tobago), HDC (Housing Development Corporation), NIDCO (National Infrastructure Development Company), with apparent breaches in terms of their reporting.
These are mainline organisations that have huge budgets running into the billions of dollars. “These are not small-time organisations. We have the Tobago House of Assembly (THA).
From what I can glean from the report, there is a gap in its compliance, a serious gap in its compliance with the provision of the act.” He added that entities such at the North West Regional Health Authority (NWRHA) also had gaps. “We have the Ministry of Foreign and Caricom Affairs, we had Ministry of National Security, it was mentioned in the TV clip and then we have Tourism, Culture and Arts also having major gaps,” said Raymond.
He said the Procurement Regulator stated that “there were $5 billion worth of contracts awarded in the period under examination in an uncompetitive manner.” “What is happening is that we have a challenge for the OPR; there is a challenge for how it has to work.” Raymond said the question now is what should be done with these defects.
“We established this body and we created this law to bring some order to a very disorderly part of our society, the challenge for the OPR staff is what do you do?” Raymond recommended that in some of those organisations that are in breach, “charges need to be drawn up and made against them. Let us start with the simple ones. “We already have a DPP (Director of Public Prosecutions)—and this is not me being personal, this is facts—that have tremendous difficulty in handling complex fraud and complex cases .
..that whole question of white-collar crime befuddles a lot us.
So, the whole of CLICO (debacle) took place, the report was published in Parliament ...
. eight years ago, and the DPP still studying the report.” He questioned where the country is at where this matter is concerned.
Raymond believes the OPR must start with simple consequences to show its level of seriousness to those in breach. Charge those who failed to file For instance, he said, entities that did not file the name of their procurement officer, “the people who didn’t give their quarterly report, they need to be brought up on charges and those charges need to start. “The OPR needs to start doing the second part of its work.
We do the training, the report is finished and now that we have these findings, we need to advance to the next stage.” Focusing on the actual Act, Raymond pointed out that it includes “some tremendous strengths” adding that the Act was amended by the politicians and reduced in scope. He said firstly, in relation to the positive aspects of the Act is the “challenge proceedings”.
“There are now avenues where disgruntled competitors can lodge a challenge, which happened with the HDC and that Santa Rosa project, you can lodge a challenge and the challenge proceeding is actually a very refreshing one,” he said. Raymond added that this proceeding takes 28 days, it is televised, so you could follow it online and see everything, “and thirdly the ruling is published straight away”. He noted the ruling must be taken as a learning opportunity.
Explaining further, he said the significance of the second strength where the procurement regulator has the power regardless “of whether somebody withdrew a complaint, (regardless) of whether like in the case with HDC whether they crushed the contract, the procurement regulator has in her power in her own discretion to call for papers.”. He indicated that this element is vital because there is a double standard in terms of white-collar crime in this country.
He pointed to a recent case in the High Court involving the two firearm dealers who “brought a legal action against the FIU (Financial Intelligence Unit), the challenge being rooted in the notion that their financial records had been called for by the FIU, and they got an injunction to stop the FIU from doing it and the judge eventually ruled that the FIU was ultra vires for pursuing an investigation into the finances of these two firearms dealers because there was no formal complaint”. He said situations like these are dangerous, and that such courtesies are reserved for white-collar crime. He called for such faults to be recognised, confronted and dismantled.
Ramkissoon: No honeymoon Additionally, Raymond touched on exemptions (amendments) to the Act indicating that there were five sets of amendments between 2015 and the present. “I agree with the creation of the appeal board within the procurement system, it creates another layer to prevent people from running to the High Court and throwing us into a 20-year callaloo.” Raymond suggested a reinstatement of some significant elements within the Act.
“There were simplified procurement regulations earlier this year that were apparently innocuous, no problem. Those exclusions of legal fees or auditing and accounting fees of government-to-government arrangements and all of those things I was protesting against. Those exclusions we need to recognise them for what they are.
They are detrimental to the fundamental design purpose of this act; they are detrimental to good order in our Republic, they are detrimental to proper transactions in public money and they need to be reinstated,” he said. He said he will write the United National Congress (UNC) to request that these parts are placed in its manifesto. “I don’t want a campaign promise, I want it in the manifesto, if you get in power, reinstate those parts of the Act,” Raymond said.
He also questioned what exactly is public property and how it is defined in the Act stating, “real property is real estate and personal property is everything else. “However, I was horrified to go to page nine of the OPR’s report..
.and see that personal property has been defined as at page nine, physical property including stores, equipment, computers and motor vehicles.” Explaining further, he said “our economy, our country, the bulk of our wealth comes from intangible things, the oil and gas, all those things are personal property, the oil and gas licenses.
” Ramkissoon agreed with Raymond, stating entities that breached the law should not be given a transitory period. “I don’t think there should be any need or any call for a honeymoon period with respect to breaches of the Procurement Legislation by any State enterprise or ministry or anyone,” said Ramkissoon. “Because the minute we do that, the minute we seem to be going soft on that, what we will produce is a culture of non-compliance and the continuation of that status quo,” he said.
Ramkisson stressed that if people have not complied “deal with it and show them you’re serious”..
