Multiple searches of the public eProcurement and Supplier Registry Portal reveal a blatant disregard for the law by some government departments and agencies when it comes to the obligation to publish contract notices and contract awards.
This demonstrates that while the Davis administration has been busy pointing a finger at what it has characterized as Minnis administration misdeeds and even corruption, it refuses to acknowledge and fully meet its legal obligation to ensure transparency in the award of contracts.
That it intends to amend the law is no excuse for disregarding the law currently in place.
The Public Procurement Act at section 39 mandates the publication of procurement notices. It states such notices “shall be (a) published in the Gazette or in one or more national newspapers of wide circulation to reach sufficient bidders to ensure effective competition and (b) published on the electronic procurement system”.
That act came into force on September 1, 2021 after the Minnis administration faced strong criticisms from the then-opposition Progressive Liberal Party (PLP) and others over perceived foot dragging in implementing the new law, which provides for the establishment of a public procurement board, a digital procurement platform and an electronic vendor registry.
The act establishes a modern legal framework for government procurement to ensure fairness and value for money, promote efficiency, cut back on government waste and discourage corruption in contract awards.
It is designed to provide for transparency in how government ministries, departments and other agencies enter contracts and expend public money.
The act, if it is adhered to, would directly attack and dismantle the long- ingrained culture of political patronage in The Bahamas.
It is no wonder some politicians are turning a blind eye to the law, and why some resisted its development.
It is quite telling that the international procurement consultant employed by the Ministry of Finance in the last term stated in his final report: “The resistance to the public procurement reform from top-level political positions and senior-level management officials in government as well as from members of Parliament has also obstructed progress regarding the new public procurement legislation development and implementation of new procurement tools”.
The Public Procurement Bill finally passed in the House of Assembly in March 2021. The vote was unanimous.
Not surprisingly, there appears still to be no enthusiasm on the part of politicians for it.
The importance of the legislation cannot be overstated.
Speaking in December 2017, Peter Turnquest, at the time deputy prime minister and minister of finance, pointed out that the government is a major procurer of goods, works and services in the country, spending in excess of $1.475 billion to deliver public services.
“This underscores the importance of having in place effective, fair and efficient procurement arrangements, to ensure that the best value is obtained for the monies being spent,” Turnquest said.
But while some agencies are making use of the online portal, it is evident that no competitive bidding is occurring on many contracts, and the vast majority of contracts entered into by government since the law was enacted in September remain shrouded in secrecy, providing potential opportunities for corruption, and for underhanded and unfair dealings to flourish – this notwithstanding the Davis administration’s repeated pledge to be transparent and accountable.
Limited bidding
We asked Carl Oliver, acting chief procurement officer, about the fact that many government agencies are disregarding the law in failing to publish contract notices for bidding, and in failing to publish contract awards as mandated by the act.
Oliver said it could be that many agencies are using “limited bidding” – a method of procurement where circumstances, such as limited numbers of suppliers available or urgency, do not justify or permit the use of the competitive bidding method of procurement.
Limited bidding is provided for under section 34 of the act. It sets out the limited circumstances under which an agency might use sole sourcing, including in cases of emergency. As an example, it would not be practical to engage in competitive bidding after a hurricane when goods and services are urgently needed to provide relief.
“According to the act, and we’re having a problem with this, there is a section in the act called limited bidding and limited bidding allows government agencies to recruit vendors and suppliers through sole sourcing,” Oliver said.
“To some degree, it is in cases of emergency but everything could be an emergency and the procurement department has no authority to prevent the government agencies from requesting that method of procurement.”
If any government entity could decide that literally anything is an emergency, thereby circumventing competitive bidding, we asked Oliver what then is the purpose of having a Public Procurement Act.
“That’s a good point,” he responded. “It’s there in the act. They can say, ‘well, we have a rainy season that’s coming up soon. We need to complete some drainage and we need to go to vendor ‘A’ to complete this drainage. We have no way to reject their proposal. We cannot reject their proposal. That’s the way the act was written.”
We pointed out to him that the act is also written to mandate competitive bidding and transparency.
“Those are all procurement bidding methods,” Oliver responded, “but if the act gives me the authority to use the limited bidding model, I can do that. If I want to use the competitive bidding model, I can do that too. This is why we’re having a whole lot of problems with the act. It all centers on these procurement methods.
“The act as written is not giving us clear guidance on these methods of procurement. This is why we have actually secured the services of (law firm) Graham Thompson and they’re going through an exercise right now to amend it.”
We must admit that we were stunned at the acting chief procurement officer’s seeming justification for agencies not engaging in competitive bidding.
In any event, even if they were legally engaged in sole sourcing, the law does not excuse a failure to publish contract awards, no matter how those awards were arrived at.
We asked Oliver why the contract awards are not being published.
He responded: “I’m going to have to speak with them about that, the government agencies, because I do know that they have access to the sole sourcing method of procurement. They can do that. Everything for these government agencies can be emergencies when dealing with the limited bidding approach.”
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