Guyana’s strict Procurement laws and the need for effective enforcement
Guyana’s procurement system has been tainted over the years by accusations of bribery, insider trading and other forms of corruption. However, Head of the National Procurement and Tender Administration Board (NPTAB), Mr. Berkley Wickham in an interview with the News Room made it pellucid that this state of affairs is about to change as a number of initiatives are in the pipeline to improve the image and integrity of the public procurement system.
He explained that of the ways in which this is going to take place is through stricter enforcement of the procurement rules and regulations.
Wickham was careful to first explain what the process of public procurement entails. He said that this refers to the process by which public authorities, such as government departments or local authorities, purchase work, goods or services from companies, is perhaps, one of the single most important activities of a country.
The NPTAB head said that this is due in part to it taking up the greatest amount in any national budget. Because of its importance and the fact that the nation’s fund is at risk, Wickham commented that there must be detailed laws that ensure competitiveness, transparency, full accountability and good value for state assets.
What then does this mean for contractors involved in the process? Well, According to the NPTAB Head, one must first take a look at the legislation put in place to govern this process and what is expected of these officers.
In the year 2001, the Guyana Constitution was amended to make provisions for the establishing of a Public Procurement Commission.
This was a necessary move as there needed to be the monitoring of public procurement and all related processes used to ensure that the procurement of goods, services and the execution of works are done fairly, equitably, with transparency, competitively and in a cost effective manner.
The Public Procurement Commission operates independently and only reports to the likes of the Legislature. It must be composed five members experienced in the act of procurement, legal, financial and administrative matters. These five members are appointed by the President after nomination by the Public Accounts Committee and have approval by no less than two-thirds of the elected members of the National Assembly. There is no removal of a member from the commission except when necessary as seen in the Constitution.
What exactly are the functions of the Commission?
In simple terms, the Commission serves to perform of number of functions. According to the law, it is expected to monitor and review the functioning of all public procurement systems so as to ensure that they are in accordance with law and such policy guidelines as may be determined by the National Assembly.
The Commission is in place to safeguard the national interest in public procurement matters, having due regard to any international obligations.
It is also expected to monitor the performance of procurement bodies with respect to adherence to regulations and efficiency in procuring goods and services and the execution of works; approve of procedures for public procurement, disseminate rules and procedures for public procurement and recommend modifications thereto to the public procurement entities; and investigate complaints from suppliers, contractors and public entities and propose remedial action.
There are more details to The Procurement Act of2003 as it allows for the provision of the regulation of the procurement of goods and services. In addition to this, it speaks to the execution of works in order to promote fair competition among suppliers and contractors as well as transparency in the process of procurement.
Also, the Act replaced the Tender Board Regulations, which was outdated and did not have the force of law.
The Act deals with the following: authority limits and levels, composition of the various tender boards, eligibility requirements for suppliers/contractors, prequalification procedures, specifications of goods/services, prohibition of contract splitting, restricted tendering, sole source procurement, two stage tendering, tender security, tender evaluation and tender award.
With regard to tender security, the Act says, “ Suppliers or contractors that agree to an extension of the period of effectiveness of their tender shall extend or procure an extension of the period effectiveness of tender security provided by them or provide new tender security to cover the extend period of effectiveness of their tenders. A supplier or contractor whose tender security is not extended, or that has not provided a new tender security, is considered to have refused the request to extend the period of effectiveness of its tender.”
As for restricted tendering, the Act states that, “When the restricted tendering procedure is used, only suppliers or contractors invited by the procuring entity due to their qualifications can submit tenders. All other steps and requirements applicable to open tendering, as set forth in Part V of the Act, shall be complied with.”
Furthermore, the Act established a hierarchy of authority limits and levels in the assessment of bids and in the award of contracts. At the lowest level, the head of the budget agency (accounting officer) awards contracts up to a certain limit. At the highest level, Cabinet approves of all contracts in excess of $15 million. However, between these two levels, there are the National, Regional, Ministerial and District tender boards along with their evaluators that help to carry out the assessment and approval of contracts.
Contractors and suppliers must reach certain eligibility requirements. The main considerations include competency in technical issues, availability of financial resources, equipment and other physical facilities, and managerial capability, reliability, experience, and reputation.
There is also provision for disqualification because of any, some or all of the following: continued unsatisfactory past performance, conviction of criminal offence relating to professional conduct or the making of false statements or misrepresentations of qualifications in the last ten years, suspension or debarment “in this or other jurisdictions over the last three years,” knowingly submitting information about qualifications that is materially inaccurate, incomplete or false or failure to rectify non-material deficiencies promptly upon request.