Permit me on behalf of the Joint Consultative Council to address Attorney General Faris Al-Rawi’s statement via a news conference on Monday.
First, we agree 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.
The AG states repeatedly in his discourse, however, that the Government has aggressively pursued the implementation of the procurement legislation and he laid the blame squarely at the feet of the former president 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. 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.
In dealing with 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 of our Constitution”. We humbly submit this is a case of the spirit of the constitutional law as opposed to the letter of said law.
The AG 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”.
The AG is well aware that Part 10 of the Draft Regulations (Ref OPR Website https://img1.wsimg.com), articulates the Challenge Proceedings under its Sections 67 Procedure to Review, to Section 78 Conclusion of Proceedings, inclusive. The Regulations clearly allow for the decision of the Office to be subject to review by the Public Procurement Review Board (PPRB) under Section 51A of the act, and this process is spelt out clearly in the Draft Regulations.
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.
The AG boasts that the PPRB has no office. Isn’t there collective responsibility by the Government and independent bodies to realise this necessary component? Again are we to believe 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?
The AG should clarify for the public why the Prime Minister, Dr Keith Rowley, stated to the media on September 29 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 PM 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. 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”.
Civil society groups do not have a cadre of lawyers at our disposal like the AG or the Ministry of Finance. We would therefore welcome full disclosure at this time from the offices and officers that are responsible for all activities required for implementation and full proclamation. The JCC would therefore greatly appreciate it if the learned AG can utilise his team of lawyers to advise the public on specifically what is missing from the Draft Regulations, so that the public can get a sense the Government is actually aggressively pursuing operationalisation of the OPR.
president, JCC for the construction industry