Dear Editor,
I am compelled to respond to the Alliance for Change’s (AFC) press statement dated January 10, 2024 in Stabroek News regarding a complaint by Akamai Inc. over a contract award. The said complaint was lodged with the Public Procurement Commission (PPC) for an Administrative Review.
Accordingly, a review was carried out as per the constitutional functions of the PPC. Having concluded the matter, a summary report on the findings and proposed remedial actions was subsequently published on the PPC’s website, which was also dispatched to the procuring entity, the National Tender and Procurement Administration Board (NPTAB) and the complainant.
The AFC contends that… “[t]he current PPC investigative report is despicably unacceptable. It merely reaffirms NPTAB’s report without any scrutiny or examination as was done by its predecessor. It is incomprehensible that the current PPC has determined that it has no authority to even request complainants to substantiate information as to documentation provided at the time of bidding; nor obtaining responses from NPTAB or the procuring agencies to verify what those agencies are asserting”.
Further, the AFC asserted: “…like good police work, there is no need for witnesses to be subpoenaed nor sworn as per a trial in the High Court. This PPC has constructed walls to prevent it to proceed forward…. The AFC believes that the Commission must also state the dissenting report of any dissenting Commissioner. In the Akamai case, the AFC nominated Commissioner, Dianna Rajcumar, correctly wanted the complainant to be engaged in the investigation procedure before determining the report”.
Given that the AFC cited its nominated Commissioner’s position; I am seizing this opportunity to disclose some of my own contentions and questions posed to the AFC nominated Commissioner during the deliberations. Indeed, Commissioner Dianna Rajcumar requested for the complainant to be engaged, to which I posed the question… “To what end”? The Commissioner’s verbatim response was…”I don’t know”. Observably, it has become a norm for the AFC nominated Commissioner, in her deliberations, to not consistently justify her positions objectively and adequately.
In fact, on multiple occasions during our deliberations at the Commission’s statutory meetings, I have had to remind my learned colleague (the AFC nominated Commissioner) about our constitutional duties and obligations pursuant to Article 212W (2) which states that…”the Commission shall be independent, impartial, and shall discharge its functions fairly”. This means that the Commissioners ought not to subject themselves to political influence or directives. Yet, this fundamental principle seems to evade my colleague from the AFC.
Similarly, l wish to draw the AFC’s attention to Article 212W (2) of the supreme law of the land―that is, the Guyana Constitution. In this respect, the PPC as a constitutional body is not subject to political influence or directives. As it would appear, the AFC is patently attempting to do so, as demonstrated, inter alia, in its press statement dated January 8, 2024.
Be that as it may, I would like to address some of the key issues raised by the AFC as it pertains to the matter brought to the PPC by the complainant.
The AFC, a political entity, is effectively attempting to direct the PPC, an independent constitutional body, on how it must conduct an investigation, by expressly stating that it must do so “like good police work”. Unfortunately, in the current legislative framework, the PPC does not have the legislative authority to conduct “investigations” within a broad, undefined, and unlimited parameters.
To that end, Article 212 AA (1) (h) of the Constitution as per the functions of the PPC states…” investigate complaints from suppliers, contractors and public entities and propose remedial action”, and 212 AA (1) (i) states…”investigate cases of irregularity and mismanagement and propose remedial action”. In so far as the investigative function of the PPC is concerned, based on my interpretation of Article 212 AA (1) (h) & (i), it is limited to determining whether there are cases of irregularities established, viz-á-viz, breaches of the Procurement Act and/or the Procurement Regulation (s). Hence, the Commission is constitutionally restricted to the proposal of remedial actions pursuant to Article 212 AA (1) of the Constitution, which it did in the case of Akamai. Consequently, the Commission has no legal power[s] to institute any action[s], for example, by way of penalties based on any such findings.
In this regard, attention is drawn to the functions of the Commission pursuant to Article 212 AA (1) (I) which states…” liaise with and refer matters to the police and the Auditor General…”. In this instance, as part of the proposed remedial actions available to the complainant to explore, if he so wishes, the Commission recommended that “the forum for settlement of such conflicts, should they arise, would be the court” (Summary of findings report: paragraph 5).
In other words, the PPC cannot assume the functions of other institutions such as the Guyana Police Force, the Auditor General or a court of law, as the AFC expects. If the PPC chooses to do so, then in my view, these could be regarded as constitutional excesses.
With respect to the “documented evidence”, Mr. David Patterson in his missive of January 6, 2024, argued that the PPC failed to highlight that Section 5 (5) (a) of the Procurement Act specifically states, “a procuring entity may not disqualify a supplier or contractor on the ground that information the information submitted concerning the qualifications of supplier or contractor was inaccurate or incomplete in a non-material respect”. However, I am hard-pressed to assert that Mr. Patterson may have incorrectly quoted Section 5(5) (a) of the Procurement Act (Cap: 73:05), unless he mistakenly cited another country’s procurement law. In so doing, he inserted “words” that are not there in this subsection of the Act… the words… “not” disqualify, and “non”-material.
Section 5 (5) (a) of the Procurement Act actually states…” A procuring entity may disqualify a supplier or contractor if it finds at any time that the supplier or contractor knowingly submitted information concerning the qualifications of the supplier or contractor that was materially inaccurate, incomplete, or false. A supplier or contractor that has been disqualified pursuant to this paragraph may be subject to such sanctions as the National Board may impose”.
The complainant acknowledged that a spreadsheet comprising a list of previous contracts was supplied as part of the bid, as per the evaluation criteria (10). This was not accepted as documented evidence by the evaluation committee. The AFC is disputing this on the basis that the format was not prescribed. But this is an inaccurate claim on the part of the AFC, that the format was not prescribed. The evaluation criteria (10) required the contractor or supplier to “demonstrate experience by providing documentary evidence that shows: a) similar goods were provided in at least one (1) contract in the last two (2) years to a minimum value of (GYD$5,000,000).
Undoubtedly, a “spreadsheet” cannot be deemed “documentary evidence” in compliance with the aforementioned evaluation criteria (10), though I understand and appreciate the AFC’s acceptance of such as evidence, constructed upon the infamous fraudulent “spreadsheet” for the Region Four General and Regional Elections result in 2020, instead of the Statement of Polls (SOPs).
Notwithstanding, as far as I am concerned, a “spreadsheet with a list of contracts” does not conform to strict documentary evidence. Obviously, documentary evidence would have been a copy of a contract (explicitly stated in criteria no.10). Alternatively, in lieu of a past contract, perhaps a purchase order (s) and/or an invoice (s) valuing a minimum of $5 million, may have sufficed versus a spreadsheet.
In the final analysis, it is worth noting that the AFC’s apparent special interest in this specific matter is concerning.