Contractors: Procurement Act proclamation 'a major milestone'

CONTRACTORS Association president Glenn Mahabirsingh told Newsday on Thursday that next week's full proclamation of procurement legislation would be "a major milestone" for the country, reacting to news from the Office of the Attorney General.

Former procurement regulator Moonilal Lalchan said, "This is a really significant event."

Opposition Senator Jayanti Lutchmedial, however, was sceptical.

At 3.06 pm on Thursday came a four-line statement from the AG's Office which, despite its brevity and its suddenness, could profoundly affect commerce in TT.

It said Attorney General Reginald Armour, SC, said Cabinet had earlier "approved the full proclamation of all remaining sections of the Public Procurement And Disposal Of Public Property Act, No 1 of 2015, which full proclamation will take effect from Wednesday."

In the eight years since Parliament passed the act in 2015, parts have been proclaimed, but other sections rescinded by successive amendments in Parliament, in 2016, 2017 and 2020.

Mahabirsingh said, "The TTCA is extremely pleased with this announcement."

He said the JCC, of which the TTCA was a member, had advocated for procurement laws since 2007.

"So 2023 would mark 16 years of advocacy to have legislation for procurement and specifically for construction projects

"This is definitely a major milestone for the industry and the country."

He said the TTCA now hoped the country could benefit from the legislation.

Asked if it was a bolt out of the blue, Mahabirsingh recalled earlier this year the Prime Minister had promised proclamation by Easter.

"There had been a lot of advocacy through the JCC. The JCC would have constantly had articles and reminders. There were many contributions by senior people in the industry to bring this where it is today."

He concluded, "So we look forward to the agencies being outfitted and resourced, to follow through with the legislation. We look forward to the benefit that would come down to the general public."

Former procurement regulator Moonilal Lalchan said proclamation would give the Office of Procurement Regulator (OPR) full operationalisation, to do proper investigations and hearings.

Newsday asked if public agencies had enough time to get themselves compliant by hiring procurement officers so as to be able to implement the act.

He replied that since 2018, much had been done to get public bodies ready, including naming their procurement officers.

He lauded TTEC and Heritage Petroleum as being ready, with WASA, TSTT and NGC quite advanced.

Mulling the AG's statement, Lalchan said, "This has accelerated the process for those not totally on board. It is the law."

He said the OPR has had 325 training sessions, so any non-compliance by entities was not caused by the OPR.

Asked about the current vacancy in the post of procurement regulator, he said the post was appointed by the President of the Republic, after consultation with the Prime Minister and Opposition Leader.

"I'd like to congratulate the members of board, the leadership of the OPR and all employees for a job well done."

Lalchan said all contractors and suppliers wishing to do state business must register with the OPR. Anyone feeling aggrieved by a procurement award can bring a case to the OPR to examine. Lalchan expected that the OPR had alleviated some of the judiciary's concerns.

For the Opposition, Lutchmedial said the original act had been weakened by repeated amendments.

"Full proclamation won't reap the full benefits." She hoped the proclamation was not done to distract and placate the population amid the crime onslaught.

Lutchmedial said the former People's Partnership government had worked hard to bring a very strong and robust procurement act but this had been weakened by the current Government through successive amendments over the past eight years.

"So the full proclamation right now does not change the fact that they have deprived the population of what was supposed to be a robust legislative regime to root out corruption in public procurement."

Newsday asked if the announcement was quite sudden.

She replied, "Two things jumped out at me when I first saw it. Firstly, the PNM are very good at creating distractions. With the crime situation being what it is now, they probably thought this was a good reason for a distraction."

Secondly, she said the Joint Select Committee on Finance and Legal Affairs was trying to schedule a meeting with the AG for him to explain the challenges with the legislation, especially those highlighted by the judiciary.

"They never really apprised the population how they were working through those issues.

"I really hope they have worked out those issues. I hope it's not just a way to distract the population and to placate the population.

"They (Government) are facing the wrath of citizens because of the crime situation."

Lutchmedial said the Government's amendments to the act meant it did not cover government-to-government contracts nor the provision of legal services.

"The post of procurement regulator has to be filled. It is very curious that the person who was there some time, working with them for some time, is no longer in that office. We will see who they put."

On June 22, 2022, Armour told the House of Representatives that the judiciary feared a lack of separation of powers, the OPR's wide authority, insufficient assurance of due process, abuse in challenges to a public body’s procurement activity, abuse of the act to hinder the functioning of law courts, the understaffing of the Judiciary's procurement unit, fears of a leap in public-law litigation, fears of an unmanageable workload for the Judiciary, and an extensive impact on the Judiciary's operations.

"It is the view of the Judiciary that the effect of this legislation on the processes and operations of the Judiciary (and other public bodies) has not yet been truly understood, and that the level of bureaucracy, record-keeping, paper work, as well as the staff needed to ensure its proper application, are not yet properly assessed.

Armour cited the CJ saying it was unrealistic to ask existing staff to undertake new tasks linked to the implementation.

“The responsibility placed on the procurement officer and the accounting officer is immense and to require them to address it without sound legal support, at at risk of grave penalty, is unwise."

The act says, "A supplier or contractor may apply to the Office for review of a decision or an action taken by a procuring entity in the procurement proceedings." It says this applies to a supplier or contractor participating in the procurement proceedings or any public body whose interests are or could be affected.