Attorney General Faris Al-Rawi went on the offensive yesterday as he responded to critics of the Government’s handling of the Public Procurement Amendment Bill as well as to a call from the Opposition United National Congress to withdraw the recent amendments.
Speaking at a news conference at his Port of Spain office, the Attorney General also poured cold water over the Opposition’s threat to not support any legislation if the Government does not bring back the original Public Procurement Act.
The Attorney General said: “What’s new? Senator Mark’s track record would demonstrate that he says no to everything…They are not in the Parliament to support anything. And therefore the Government accepts that we will have no support from the UNC on anything…So it’s the same ole, same ole”.
He cited the Opposition’s lack of support for the very gaming bill which they had passed in the House of Representatives (and which lapsed).
“Trinidad and Tobago is being fed a diet of nonsensical arguments saying that we have gutted the law….It is entirely untrue for anybody to say that the law has been gutted,” the Attorney General said. “What has been gutted is the fact that people don’t read and they are not reading to black and white text of the law,” he said.
Accusing Mark of being untruthful, the Attorney General rubbished his “ridiculous submission” that the Government has removed the ability for the oversight by the Procurement Regulator for the disposal of public assets such as the Paria Trading Company or the Guaracara refinery.
He said the Act covered real or personal property owned by a public body, which would include State enterprises, statutory bodies such as Petrotrin Holdings, Paria and Guaracara as well as the disposal of State lands. “The submissions coming from Senator Mark are fundamentally dishonest,” he added.
Ridiculously reckless
Dealing with guest columnist Afra Raymond, the Attorney General said he inaccurately suggested that the law would stop the Office of the Procurement Regulator from having oversight over public/private partnerships. He said Section 6 states any public procurement or disposal of public property that is not the subject of the Act is “void and illegal”. He said Section 7 specifically states that the Act applies to public bodies and public/private partnership arrangements.
Pointing out that the exceptions set out in Section 7 (2) state to the extent that the Act conflicts with an obligation of the State arising out of a treaty, the Attorney General said a treaty must be made local law and therefore for the law to be operative it must pass through the Parliament.
He said the same applied with an agreement with an international financial institution such as the Inter-American Development Bank (IDB) or the Andean Bank. He said for the Government to borrow money from such financial institutions there had to be laws to govern this.
The Attorney General said it was therefore “ridiculously reckless” to say that there was no supervision in this regard. He said technical cooperation agreements would be subject to a report from the Procurement Regulator “for due diligence” and this report would go to the Parliament and its committees “for interrogation”.
Don’t oversimplify the process
The Attorney General gave the Government’s commitment to do all that is possible to have the public procurement bill operationalised.
He urged people to stop “oversimplifying” the process, which was not simple. He chastised those who said the law was fully ready for implementation, thereby giving the impression that the Government is somehow holding back on the law.
“I would like to state that there are many steps still required at the Office of Procurement Regulator and outside of the Government to make this law work. It is very important to understand that the Government can only do its part,” he said, adding that the Government was “aggressively implementing for its part all that is required in relation to public procurement legislation”.
“For anybody, including the Office of the Procurement Regulator (PR), to suggest that the matter is almost immediately ready for operationalisation, I urge you to go to the law itself,” he said.
The Attorney General said even though draft regulations had been provided to him in October 2020 by the Office of the Procurement Regulator (OPR), there was a caveat that there would be further submissions from the Office of the Procurement Regulator in relation to amendments to these regulations.
The Attorney General said Section 63 of the Act which states that the Minister may on the recommendation of the OPR, make regulations to give effect to the provisions of the Act, including regulations on the conduct of challenged proceedings under Part V and the addition to or removal from ineligibility lists under Section 58.
He said the regulations under Challenged proceedings were critically important for operationalisation of the legislation and that anyone who has lost out on a procurement has the legal right to challenge the proceedings.
This involves an investigation by the Procurement Regulator, a Review process under the Review Board (currently chaired by Justice Sebastian Ventour), before possible further review by the High Court, Court of Appeal and the Privy Council.
The Attorney General said until the regulations are produced, “mapping the processes in the Review proceedings”, there can be no effective operationalisation of the law. “Because you just can’t have the start of procurement, you have to deal with the challenge to procurement,” he said.
He said he wanted to disabuse the concept that simple passage of the regulations can achieve the full functionality of the Public Procurement law.
