The Joint Consultative Council for the Construction Industry (JCC) has called on Attorney General Faris Al-Rawi to advise on specifically what is missing from the draft regulations so that the public can get a sense that the Government is actually aggressively pursuing operationalisation of the Office of Procurement Regulator (OPR).
JCC president Fazir Khan stated in a news release yesterday that civil society groups do not have a cadre of lawyers at their disposal, like the AG or the Finance Ministry, and would therefore welcome full disclosure at this time from the offices and officers who are responsible for all activities required for implementation and full proclamation.
Khan responded to issues raised by Al-Rawi at a news conference on Monday.
He noted the AG laid blame squarely at the feet of former president Anthony Carmona for not appointing the Regulator until 2018.
“We need to inform the public that the fact is that it was the civil society groups, including the JCC, that pursued the former president on this matter,” said Khan.
“If this Government was so eager, why was there no Government liaison with President Carmona as early as 2016 to get the OPR appointed by the President?
“Two years were wasted because of this lack of interest on the part of the Government,” he added.
Khan stated the AG “boasts” that the Public Procurement Review Board (PPRB) has no office.
“Isn’t there collective responsibility by the Government and independent bodies to realise this necessary component?” he asked.
“Again, are we to believe that the Government is aggressively pursuing the implementation of procurement legislation if appointed board members have no office? Or do civil society groups have to take up this slack on behalf of the citizens of this country?”
‘Procurement promise’
Khan said the Attorney General should clarify for the public why the “well-informed and well-intentioned” Prime Minister, Dr Keith Rowley, stated to the media on September 29, 2020 that “in a few weeks after the budget debate, procurement legislation will be implemented”.
“Was the PM also, to quote the AG, ‘oversimplifying the process’? The Prime Minister created an expectation in the public space that there would be the implementation of this legislation which, from many clamouring quarters, appears to be eagerly anticipated and extremely long overdue,” he stated.
“Three months since the PM’s ‘procurement promise’, we have the AG disabusing ‘the concept that simple passage of the regulations can achieve the full functionality of the Public Procurement law’.”
Responding to the AG’s call for “fact-checking”, Khan delved into clauses of the Public Procurement and Disposal of Property (Amendment) Bill, 2020.
He said the JCC agrees that only Clause 5 of the Amendment Bill makes a tangible difference to the original Act in seeking to amend Clause 7.
“To clarify, the AG is correct that the OPR still has oversight on the disposal of public property, and it is unfortunate that some commentators have misinterpreted the removal of Clause (o) from Section 13 (1) of the Act via Amendment Bill Clause 6,” he stated.
‘Equality of treatment’
The JCC noted that in dealing with Express guest columnist Afra Raymond, the AG avoided responding to the case made by the latter for “equality of treatment”.
“We implore the AG to respond to the issue raised that ‘these amendments to the Act require a special majority as they infringe upon the rights enshrined at S.4 (section 4) of our Constitution’. We humbly submit that this is a case of the spirit of the constitutional law as opposed to the letter of said law,” said Khan.
He stated that Al-Rawi then brought up the issue regarding “regulations on the conduct of challenged proceedings under Part V and the addition to or removal from ineligibility lists under Section 58”.
Khan said the AG is well aware that Part 10 of the Draft Regulations articulates the Challenge Proceedings under its Section 67—Procedure to Review —to Section 78—Conclusion of Proceedings, inclusive.
The Regulations, he said, clearly allow for the decision of the office to be subject to review by the Public Procurement Review Board under Section 51A of the Act and this process is spelt out clearly in the Draft Regulations.
Khan stated the Regulations note under 77(5) that the standard of proof to be applied in challenge proceedings shall be that required in a court in civil cases.
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