The Procurement bill encourages decentralized purchasing but requires uniformity of compliance with the observance of the principles of good governance and objectives of efficiency and effectiveness, ethics and fair dealing together with the promotion of national industry and other public policies.
Having read this blog read my concerns with the bill in the two blogs mentioned at the end.
Objectives of the Public Procurement and Disposal of Public Property Bill 2014.
Clause 5 gives the objects of this Act as being to promote –
(a) the principles of accountability, integrity, transparency and value for money;
(b) efficiency, fairness, equity and public confidence; and
(c) local industry development, sustainable procurement and sustainable development, in public procurement and the disposal of public property.
5.2 requires that a public body carry out public procurement and the disposal of public property in a manner that is consistent with the objects of this Act.
Key aspects of the Procurement bill:
1 The bill seeks to bring all types of procurement under its ambit by using the term Public Money. The term public money which means money that is –
(a) received or receivable by a public body;
(b) raised by an instrument from which it can be reasonably inferred that the State accepts ultimate liability in the case of default;
(c) spent or committed for future expenditure, by a public body;
(d) distributed by a public body to a person;
(e) raised in accordance with a written law, for a public purpose; or
(f) appropriated by Parliament;
2 There is to be the establishment of a body corporate, the Office of Procurement Regulation (which in the bill is referred to as the office) that has at its head a Regulator
who shall be entrusted with the day to day management, administration, direction and control of the business of the Office with authority to act in the conduct of the business of the Office.
3 Some key duties of the Regulator include:
Enabling agencies to explore alternative service delivery options
Promoting flexible and responsible resource management for procurement of goods and services
Encouraging a streamlined government purchasing framework; – Guidelines will be developed by the Regulator. They will have universal application by virtue of mandatory compliance by all public bodies, will essentially treat with the core principles and translate polices that promote best procurement practice into working instructions. These will be augmented by handbooks which it is envisaged in the context of Trinidad and Tobago will be designed by the Regulator for guidance purposes for public bodies
Providing best practice advice in the conduct of procurement
Promoting best practice procurement through value for money in government purchasing, operating the highest standards of professionalism, probity and transparency
Preparing a report annually to the Speaker, the President of the Senate and the Minister on the strengths and weaknesses of the system and steps taken to rectify any weaknesses and on the total value of contracts awarded and lessons learnt.
4 The Bill uses the term Public bodies to refer to persons, ministries, organizations, etc. that have to comply with the terms of the Bill. Public bodies mean (a) the Office of the President; (b) the Parliament; (c) the Judiciary; (d) a Ministry or a department or division of a Ministry; (e) the Tobago House of Assembly or a division of the Tobago House of Assembly; (f) a Municipal Corporation established under the Municipal Corporations Act;(g) a Regional Health Authority established under the Regional Health Authorities Act; (h) a statutory body, responsibility for which is assigned to a Minister of Government; (i) a State-controlled enterprise; (j) a Service Commission established under the Constitution or other written law; (k) a body corporate or unincorporated entity – (i) in relation to any function which it exercises on behalf of the State; (ii) which is established by virtue of the President’s prerogative, by a Minister of Government in his capacity as such or by another public authority; or (l) a body corporate or unincorporated entity in relation to any function, project, scheme or arrangement which involves the use by it, of public money
5 In the context of the Bill “procurement” or “public procurement” means the acquisition of goods, works or services involving the use of public money. Procuring entity means a public body engaged in procurement proceedings; and procurement proceedings”, in relation to public procurement, includes the process of procurement from the planning stage, soliciting of tenders, awarding of contracts, and contract management to the formal acknowledgement of completion of the contract.
6 The Bill attempts to incorporate financial instruments of procurement e.g the design build method under the concept of private partnership agreements. It defines “public-private partnership arrangement” as meaning an arrangement between a procuring entity and a private party under which –
(a) the private party undertakes to perform a public function or provide a service on behalf of the procuring entity;
(b) the private party receives a benefit for performing the function, either by way of –
(i) compensation from a public fund;
(ii) charges or fees collected by the private party from the users of a service provided to them; or
(iii) a combination of such compensation and such charges or fees;
(c) the private party is generally liable for the risks arising from the performance of the function depending on the terms of the arrangement.
Even though Clause 7 of the bill states that this Act applies to public bodies and public- private partnership arrangements; it is significant that these bodies are not mentioned again in the Bill. Essentially the bill is built around the tender process and not these financial instruments that are used to facilitate many of government’s big procurement contracts
7 Clause 6 of the bill states that -Subject to subsection (2)- which deals with the date of proclamation, any procurement of goods, works or services or retention or disposal of public property that is not done in accordance with this Act and any procurement contract or agreement that is not entered into in accordance with this Act shall be void and illegal.
Other key features of the Bill include:
The establishment of a database, to be known as the “Procurement Depository” to which suppliers or contractors can submit information with respect to, among other things, their qualifications and experience. It will be accessible by the public for viewing
No later than six weeks after the Approval of the National Budget, procuring entities are to publish on its website or in any other electronic format, information regarding all planned procurement activities for the following twelve months and update the information as necessary.
Due diligence examinations are to be done on suppliers
It imposes severe penalties for contravention of regulations not exceeding a fine of one million dollars and imprisonment for five years.
It prohibits a person from withholding, concealing, destroying or refusing to produce any book, record or document required for the purpose of an investigation.