Nine-day memory is a real thing in today’s world, but some of us remember and compare, so we’re not fooled; no way.
Why is there a delay?
Our Attorney General (AG) Reginald Armor tells us that the new Public Procurement Act cannot be implemented at this time as a significant number of procurement agencies are unprepared and this is totally unacceptable .
Let me explain.
The Office of Procurement Regulation (OPR) explained that less than half of the agencies that transact with public funds are ready for the entry into force of the new law. These bodies are called procurement agencies and if the new law were to come into force, they would not be able to legally transact with public money. Penalties under the new law are severe and, with one exception, all carry custodial sentences for the procurement officer of a procuring agency at fault. It is not possible for an offending procurement agency to simply pay a fine and continue regardless. The new law requires the official responsible to go to jail.
The OPR has offered a six-month “grace period” during which no charges will be brought after the law is implemented. This was to allow for a transition that would include hiring procurement officers, training staff and establishing proper procedures.
We are therefore being asked to believe that this political priority file for our Prime Minister is being delayed by unprepared state agencies.
At the same time, consider the recent High Court decision in the wrongful dismissal case of former Central Bank Governor Jwala Rambarran, in which he was awarded damages for the decision of Finance Minister Colm Imbert. Therefore, it is possible for a minister to remove an official with whom he is unhappy, even as isolated as the governor of the Central Bank, with the public paying the damages of a lawsuit, as in this recent case.
Of course, in this procurement scenario, the opposite outcome would prevail. In this case, a matter of great urgency and public importance is delayed by state officials and enterprises, so why is no one being fired or disciplined? After all, these dismissals would be for just cause of failure to comply or refusal to follow a legal instruction, so no compensation would be payable and we could pursue the defense of the public interest.
The government is quite capable of dismissing civil servants or agents of state enterprises that it is not happy with – just think of the CEO of the Water and Sewerage Authority (WASA), the Housing Development Corporation (HDC ) MD, to the CEO of the Tourist Office, to the former Central Bank Governor and the closure of the EFCL to remind you. So if the government really wanted to put this law into effect now, but these ineffective officials are holding back progress, why not just fire them as has been done so many times? It’s sad to say, but it’s the behavior of leaders who think they went to school alone.
Could you imagine if our seat belt law still expected every vehicle to be equipped with a set of seat belts? What if every factory and workshop had to be compliant before the Occupational Safety and Health Act was passed in 2004?
But even beyond that comparison, the AG’s additional reasons for delaying are equally incredible.
According to the AG, the covering letter from Chief Justice (CJ) Ivor Archie stated that he was not giving legal advice, but the very first point read by the AG in that letter suggested serious concerns about the alleged threat to the separation of powers arising from the new law. If the AG’s two assertions about the Chief Justice’s submission are correct, we are witnessing something akin to a separation of powers imbroglio, so we urgently need to see this 29-page submission. The Chairman of the Construction Industry Joint Advisory Council (CCM) requested the withdrawal of the CJ statement. Maybe this statement also needs to be rectified, but I want to see it first!
On June 27, 2022, I made a formal request for this exchange of correspondence, which the GA promised to publish for consultation with stakeholders. But all I get from the Ministry of the Attorney General and Legal Affairs are runaway answers.
There’s no justification for delaying or refusing to release the Chief Justice’s submission, so what’s the problem?
This is a major move by our GA, which seems unable or unwilling to open up its decision-making process to scrutiny, which would be a real shame if I’m right.
Mr. AG, just hit “send” and let us see what you say you thought.
What’s at stake?
Here are two great recent examples:
• Tobago Sandals — in which a memorandum of understanding, signed by then Minister of Tourism, Mrs. Shamfa Cudjoe, outlined the terms of a large-scale luxury resort to be built on public property in Tobago, using public funds and according to the specifications of the Sandals group. This memorandum of understanding also allowed duty-free imports from Sandals, work permits for all its staff, and contained an explicit promise that the state would facilitate “transfer pricing”. Transfer pricing is a series of mechanisms aimed at facilitating tax evasion, to the serious detriment of our collective interests.
• HDC/CGGC Public-Private Partnership — in which a PPP signed by HDC Chairman Newman George and then-CEO Brent Lyons would see CGGC (the Chinese contractor) build 439 new homes on public land to sell to people outside the HDC Waiting List. This arrangement was one in which none of the houses were affordable to low-income people on the HDC waiting list; the entrepreneur had guaranteed exemption from VAT and corporation tax (!); up to 600 work permits; land provided for workers’ dormitories; Police guards on site 24 hours a day (!) and finally, all sales were guaranteed by HDC – ie no possibility of losses for the entrepreneur due to lack of demand.
Please note that both of these rotten projects were ‘exclusive’ meaning there was no bidding process and both fell apart as soon as proper analysis was released – some things just can’t stand the light of day, like a vampire movie or ancient folklore or money or something. In neither case has the government even attempted to make a business case for these huge projects.
Intellectual bankruptcy is the complete inability to defend one’s position, in this case compounded by the fact that all the resources of the state and its allies are at the disposal of our government. That’s what we’re fighting against, but the new public procurement system would make all those types of regimes—yes, I intentionally used that wording—much more difficult. This situation begs the question: what kind of leader or system could concoct such schemes and try to “sign” our country over and over again?
The collective danger we face is that these appalling, untendered withdrawal plans were in fact entirely legal. Yes, although the public interest would have been seriously harmed by these schemes, no law was broken. This is the real danger we run without this new system to control such proposals.
Which explains why there is enormous hostility towards the new procurement system, even after it has been significantly weakened by the three rounds of amendments this government has inflicted on it. Sunlight really is the best disinfectant.
The last step is for the government to accept its responsibility for the state of unpreparedness for this new law on public procurement. This failure or refusal to prepare does not engage the responsibility of the OPR. The OPR has done its job and the MA’s shrewd attempt to reframe this time frame as one in which “the AG awaits confirmation of this or that from the OPR” must be dismissed entirely.
The Season of Reflection
Each year, I observe the season of reflection, between Emancipation Day on August 1; Independence Day on August 31 and Republic Day on September 24. There seems to be some significance to the sequence of these holidays in terms of years and dates. A certain notion of progress from the barbarism of slavery to the bad old unworthy days of colonialism to the better days we now know as citizens of a republic. But this progress didn’t come just like that, there must have been real pressure for change.
The search for progress and understanding compels us to go deep, even if only for a spell, hence the season of reflection.
Afra Raymond is a Chartered Surveyor, Managing Director of Raymond & Pierre Limited and former Chairman of the Joint Consultative Council for the Construction Industry (JCC) — this discussion is hosted at afraraymond.net.