Law Association: Procurement Bill open to abuse

THE LAW Association has joined the call by civil society to withdraw the amendments to section 7 (2) of the Public Procurement and Disposal of Public Property Bill 2020.

In commenting on the legislation, the association said, “In our view, the removal of oversight, scrutiny, accountability and administrative fairness in the procurement process” in relation to treaties referred to in section 7(1) “amounts to constitutional impropriety degrading public trust and confidence.”

The association also wrote to the clerk of the Senate, where the legislation is being debated, on Tuesday, asking for its comments to be shared with senators to “assist them in their deliberation” on the bill.

The letter said the association took the opportunity to review the bill and prepared its comments pursuant to section 5 of the Legal Profession Act.

On Sunday, the Joint Chambers, Joint Consultative Council and TT Transparency Institute called on Government to withdraw the amendments to section 7(2). The Joint Chambers, which comprise the TT Chamber of Commerce, the TT Coalition of Services Industries and the TT Manufacturers Association, said it agreed with all of the amendments except for clause 5 which seeks to amend section 7.

The same position was taken by the chairman of Office of Procurement Regulation, Moonilal Lalchan.

On Monday, Finance Minister Colm Imbert said the arguments against the amendments were “not based on facts, logic or international best practice.

“The truth is that all over the world, there is a general exception from statutory procurement regulation for what is defined as public/public co-operation or contracts between public bodies and/or governments, especially where one of the co-operating public bodies is providing loan financing or other forms of assistance, such as technical assistance or equity investment,” he said, as he provided global examples.

He said it was settled international practice that government-to-government contracts and other forms of public/public co-operation in procurement were exempt from control by local procurement regulators, and for good reason.

“In addition, with respect to the call for further ‘discussions’ with stakeholders on the amendments, the PNM Government’s position on the value of government-to-government arrangements and the substantial benefits that derive to the citizens of Trinidad and Tobago from these arrangements has been articulated on numerous occasions to all stakeholders over the last five years, as well as in the 2010-2015 period when the PNM was in Opposition.

“We have made it pellucidly clear in meetings, discussions, and public forums for the last ten years that we are of the firm value that in appropriate cases there is tremendous value and benefit to the country in accessing the specialised expertise, experience, technology, and concessional loan financing available from other sovereign governments,” he said, again giving examples of contractual arrangements with other states.

But the Law Association said the proposed amendments to section 7(2) meant that application of the parent act, and the act itself, did not apply to treaties or agreements with foreign states or international financial institutions creating a parallel procurement machinery outside the original legislation.

The association also said the upshot of the amendment creates a parallel procurement mechanism outside the act when dealing with foreign private entities, as well as agreements with private local entities “all without promoting the objects of the parent act or in accordance with the socio-economic policies of the country.”

It added that under existing law, non-profit organisations are under the scrutiny of the financial intelligence unit and must disclose their international funding arrangements and, likewise, international funding arrangements by the State or state enterprises should also be subject to a similar level of scrutiny.

“If not, it is open for abuse,” the association said. It also said the conjoined effect of the proposed section 7(5) and section 7(6), was troubling.

“While the exemptions created in section 7(5) as it relates to services provided to public or state-controlled enterprises are not objectionable, the fact that the minister may by order create exemptions subject to negative resolution of the Parliament is worrying.”

It said what these proposals did was create a second gateway for public-private partnership arrangements with local entities involving services provided to public or state-controlled enterprises that do not promote the socio-economic policies of the country and circumvented the parent act.

The association further proposed that the order of the minister should be subjected to affirmative rather than negative resolution in order to provide sufficient oversight, in line with what exists in the parent legislation.