UNC expands complaint on 'drafting error' in procurement law

UNC activist Ravi Balgobin Maharaj has initiated another round of litigation over the proper drafting of the Public Procurement and Disposal of Public Property (Amendment) Act, 2020, and its legality.

He sent a second pre-action protocol letter on Wednesday, which came after Finance Minister Colm Imbert accepted there was a need to amend the act because it did not allow for unforeseen circumstances.

Imbert’s statement came after the UNC called on him to explain the exemption for the procurement of goods and services for last week's 45th Caricom summit, saying the move was illegal.

On Monday, Maharaj’s attorneys sent a pre-action letter to the Attorney General and included the finance minister.

He wants the courts to determine whether the procurement order for the Caricom summit was legal. He also contends the Procurement Act was badly drafted, so the order was also illegal, because it was “premised on a statute which contains an obvious and clear drafting error.”

In his letter on Wednesday, Maharaj contended it was “even more apparent” that the Finance Minister “has and will continue to take advantage of this obvious and clear drafting error and has operated in a manner diametrically opposed to the ethos and tenor of the legislation and the intention of Parliament.”

On Tuesday, Imbert said the reason for the procurement exemption was because foreign dignitaries, including UN Secretary-General António Guterres, US Secretary of State Antony Blinken, US House of Representatives Democratic Leader Hakeem Jeffries and Rwanda President Paul Kagame, only confirmed their attendance a week or two before the three-day event. He also said he signed off on an exemption of goods and services for the Judiciary, which petitioned the AG for an exemption to facilitate a jury trial scheduled for the end of May.

Imbert said the request came as a jury needed to be sequestered and as a matter of confidentiality, the Judiciary asked for an exemption. Sequestering meant a need for accommodation, transportation, meals and other things for the jurors.

Both exemptions allow a three-month window in which the procurer will not have to subject itself to the rules of the law, which provides for at least two months of vetting, including public advertisement and multiple assessments before selection.

However, Maharaj said on Wednesday, “The fact that this purported exemption concerns the Judiciary comes at a time when recent events have revealed a disconcerting and concerning close relationship between the government and the close relatives of members of the judiciary that have caused judges to disqualify themselves on account of apparent bias."

“He said these "very troubling developments" had caused greater public scrutiny of the Judiciary.

“It is therefore a slap in the face of the population for the Minister of Finance to casually issue an order exempting the Judiciary from the remit of the Procurement Act.

“At a time when the population is crying out for greater accountability and transparency, the minister is hellbent on undermining our procurement laws.”

He said the Government’s “blatant disregard for the law is both troubling and disturbing.”

He also chided Imbert’s explanation, saying, “It only serves to emphasise the Government’s clear and unambiguous contempt for the rule of law and the principles of accountability and transparency.

“It is clear, based on Minister Imbert’s press conference, that the Government is prepared to sacrifice the procurement law on the altar of political expediency.”

Attorney Vishaal Siewsaran, of Freedom Law Chambers, gave the AG until July 17 to respond or they will file the interpretation claim.

“If our client’s interpretation of the law is correct, it would mean that both Legal Notices 164 and 206 of 2023 are illegally, null and void, and of no legal effect.

“This would therefore result in obvious breaches of the Procurement Act as the subject matter of those legal notices would not be exempt.”

According to the letters, the 2020 legislation was intended to amend the 2015 act, which contained a new sub-section on affirmative resolution on adding exempt services.

However, Maharaj contends: “It was clearly the intention of the Parliament and the minister that the minister’s power under Section 7 (6) (e) ought to be exercised subject to affirmative resolution of the Parliament.”

“The Honourable Minister has therefore taken advantage of this obvious and clear drafting error and has operated in a manner diametrically opposed to the ethos and tenor of the legislation and the intention of Parliament.”

He maintained that the legal notice, dated June 29, bypassed the Parliament for affirmative resolution.

On Sunday, UNC MP Saddam Hosein questioned the legitimacy of a three-month order.

The procurement law was fully proclaimed in April.

Maharaj is represented by Opposition Leader Kamla Persad-Bissessar, SC, former attorney general Anand Ramlogan, Saddam Hosein, Natasha Bisram and Vishaal Siewsaran.