Kristen Gyles | That pesky Procurement Act

The auditor general (AG) released a report on its real-time audit of the Hurricane Melissa Relief Initiative, specifically in relation to governance, procurement, and the receipt and distribution of Starlink devices.

The report outlines several findings in relation to government procurement under the Initiative and makes several suggestions or recommendations. The report is pretty ordinary, yet has become the subject of controversy because of one singular finding.

The report stated that “the procurement of 200 Starlink devices valuing $12.12 million was initiated by way of a ministerial instruction and not by the ODPEM’s Director General, contravening the Public Procurement Act 2015, which assigns direct responsibility for all procurement activities to the Head of the Procuring Entity.”

The ministerial instruction came from the Minister for Science, Energy, Telecommunications and Transport. His response was that if his actions were beneficial to the victims of the hurricane, he makes no apology and that further, he would do it again.

I believe him. If there are no consequences for breaches of any piece of legislation, then people will breach the legislation and will have no regret about breaching it.

The minister’s argument is essentially that the extent of damage coming out of the hurricane necessitated quick action. Of course it did, and that quick action should have come from the head of ODPEM. Why is that so controversial?

The idea that the emergency necessitated a breach is very uncompelling in this case. Why would it be more efficient and timelier for the minister to instruct ODPEM to make a payment to procure Starlink than for the head of ODPEM to do it on his/her own volition? The issue has nothing to do with timeliness. If it is felt, however, that the ODPEM head was inactive at a time when decisive and immediate action was required, then that issue is what needs addressing – and not by the minister playing the role of ODPEM head.

USELESS LEGISLATION

Perhaps the problem here is that we really just see the Procurement Act as another useless piece of legislation printed on wasted pages. In a climate where ministers of government are often accused of misappropriation of funds, illicit enrichment and other forms of corruption, the Procurement Act exists, in part, to promote integrity and build public confidence in the government procurement systems. This is why the Procurement Act is written in a way that excludes politicians from government procurement processes. If a minister can easily instruct the head of any entity to purchase products or services from specific vendors, it becomes easier for the minister to direct or otherwise influence the procurement process in a manner that benefits his or her friends who may be in the business of providing said products or services. Such friends may or may not also be financially connected to the minister and may or may not also be politically aligned to the minister, either case giving rise to different but very serious concerns.

Laws that keep politicians out of government procurement are not just silly, administrative rules that serve no purpose. They are a simple safeguard that forms a part of the system in place to prevent corruption.

There is nothing in the AG’s report that suggests that the instruction for the purchasing of 200 Starlink devices was corrupt. Not every breach of legislation is an indication of ill-intent. However, it is unfortunate when the people who make the laws ignore them and then wonder why there is a general disregard for law and order.

INEXCUSABLE

If the Minister’s call was for legislation that gives ministers leeway to get involved in government procurement specifically during times of emergency, I am sure most people would fully support it, but to blatantly disregard or dismiss the existing procurement legislation is inexcusable.

To the Minister’s credit, he did not entirely ignore the issue of a procurement breach. Instead, he claimed that there was no breach because he followed the procedures outlined in the Guidance Note on Acquisition of Goods, Services and Works in the Situation of Emergency or Extreme Urgency. However, those guidelines simply endow procuring entities with additional flexibility in times of emergency. They say nothing about a minister inserting him or herself into a government agency’s procurement process.

What is significant here is not so much the Starlink, the money it cost to procure them, or even the non-compliance with a piece of legislation. It is the minister’s response to a clear breach. The Minister’s response could have included his thought process at the time of the breach while acknowledging that the procurement could have been better handled for compliance with the legislation. Yet, the response seemed to be an outright dismissal of the AG’s findings.

It is becoming increasingly difficult to resist this new wave of Trumpian leadership that makes the lawmaker above the law. Why? Because it is becoming more and more widespread. Sound governance starts with accountability. And who can hold the government accountable if it refuses to be guided by anyone?

Kristen Gyles is a free-thinking public affairs opinionator. Send feedback to kristengyles@gmail.com and columns@gleanerjm.com