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The Alliance for Change (AFC) has noted a press release by the Public Procurement Commission (PPC), in which the Commission made a vain attempt to justify its perverse decision in a complaint by an unsuccessful bidder. The press release only reconfirms that the Pauline Chase-led PPC is ineffective and appears to be a willing partner in the defense of massive procurement irregularities in the country.
The constituting and operationalizing of the PPC was one of the AFC’s demands of the 2011-2015 People Progressive Party (PPP) Government. Since then the AFC’s firm view was that a properly functioning and independent PPC would be able to curb fraudulent operations in the public procurement system, irrespective of which administration was in power.
It is very important to recall that the non-functioning of the PPC was one of the main reasons for the no- confidence motion against the PPP Government. It took a change of Government to have the PPC finally constituted which ought to have been done since the 2001 amendment of the Constitution. The country’s first Commission was established in 2016 under the Coalition Government and saw ground breaking rulings, which included decisions that were adverse to the Government of the day.
It must be reaffirmed that the last Commission (2016-2020), in their comprehensive investigation reports, interviewed not only the complainant but the head of NPTAB as well as the head of procuring agencies. They examined all the claims made by the Evaluation Committee in determining contract awards. And in some instances, the Evaluation Committee even agreed that their evaluation was flawed. The last Commission did not hide behind any excuses that it had no authority to engage the complainant in the investigative process.
The current PPC investigative report is despicably unacceptable. It merely reaffirms NPTAB’s report without any scrutiny or examination as was done by its predecessor. It is incomprehensible that the current PPC has determined that it has no authority to even request complainants to substantiate information as to documentation provided at the time of bidding; nor obtaining responses from NPTAB or the procuring agencies to verify what those agencies are asserting.
The AFC is alarmed at paragraph 25 of the Summary of Finding in the Akamai Case as quoted here: “The commission is cognizant that a record may not be accurate for a number of reasons, such as but not limited to, negligence on the part of the tenderer and or procuring entity, innocent but mistaken belief of submission and the misplacement of documents (intentional or unintentional). The forum for such settlement of such conflicts, should they arise would be the court. Unlike other enquiry bodies, the PPC is not vested at this time with the requisite enabling legislative framework to subpoena witnesses,
administer oaths and or examine witnesses so as to arrive at a determination as a fact as to an act or omission relating to the record and where such responsibility lies.”
But in an investigation, like good police work, there is no need for witnesses to be subpoenaed nor sworn as per a trial in the High Court. This PPC has constructed walls to prevent it to proceed forward.
By its own admission the PPC is acknowledging that there was a possibility of an intentional fraudulent act which have been committed in the preparation of the evaluation report and which sought to disenfranchise a bidder. Yet they chose to avoid scrutiny as to whether there was fraud and simply adopt the report of NPTAB without scrutiny.
This is an absolute abdication of the PPC’s powers and core functions as a scrutinizing body. The PPC’s rationale that it needs enabling legislation to do so is most illogical and against the grain of the constitutional provisions on the issue, namely, Article 212 DD: “The Commission may require any person or any entity, including a ministry or government department, to provide it with information (a) for the purpose of any investigation it is carrying out or proposes to carry out.”
In a bizarre move last year the PPC sought external legal advice, at the cost of taxpayers USD 4,500, to determine if it can carry out it functions. This is after legal advise was given by its legal department on the self-same issue. The PPC seems still not to understand its functions vested in the supreme law of the land – the Constitution of Guyana.
One is left to wonder what does the current version of the PPC sees as its role? With an annual budget of almost $300M, the AFC and the public expects a more functional Commission. Investigation reports which are no better than a paper sorting exercise, regurgitating the reasons of an evaluation committee without no due diligence or analysis, falls well short of what is expected of a fully funded Constitutional agency.
The AFC believes that the Commission must also state the dissenting report of any dissenting Commissioner. In the Akamai case, the AFC nominated Commissioner, Dianna Rajcumar, correctly wanted the complainant to be engaged in the investigation procedure before determining the report. The complainant in these circumstances should have been called and questioned. The PPC is an oversight body which should not reiterate the report of NPTAB but must carry out its investigation thoroughly with all parties in a complaint before the Commission.
Within the public sphere, on a daily basis, there have been allegations of questionable procurement awards. The PPC was the constitutional agency which aggrieved bidders could find some relief and support. This has sadly not proven to be the case in this Akamai instance. The current PPC instead of being part of the solution, now is a part of the problem.