Features
National Procurement Commission – Justice Minister’s comments
By Dr. Janaka Ratnasiri
In an interview held in one of the TV channels on 07.09.2020 ending at midnight, Justice Minister Ali Sabry said that the National Procurement Commission (NPC), established among the several independent commissions under the 19th Amendment to the Constitution, has not served any useful purpose during the 5 years of its existence and is a redundant organization. Perhaps during his short tenure as the Justice Minister, he appears to have not grasped the importance of the NPC and hence this write up.
NEED FOR PROCUREMENT GUIDELINES
Sri Lanka’s budget for 2019 has been LKR 2,365 Billion for capital and LKR 2,178 Billion for recurrent expenditure according to Central Bank of Sri Lanka Annual Report for 2018 (Table 100). Other than the payments on salaries and interest & capital repayment on loans, the rest will have to be spent on procuring goods and services both by the government institutions and semi-government institutions. Hence, it is important that there are norms and guidelines in place for incurring such expenditure to ensure that public funds are not siphoned out either by officials or by suppliers.
Originally, the Department of Public Finance (DPF) functioning under the Treasury played the role of managing the expenditure in public sector organizations and had the responsibility for a sound public finance regulatory framework which improves transparency, accountability and service delivery in the public sector. The DPF has issued several guidelines for the benefit of public sector organizations outlining procedures and methodologies for the procurement of goods and services.
However, media reports reveal that more often than not, public sector organizations act in violation of these guidelines causing millions of rupee losses to the government. One reason may be that DPF lacks a mechanism to monitor whether these organizations strictly follow these guidelines or not. Any shortfalls generally come to light only when their finances are audited when it is too late to take any corrective measures.
NATIONAL PROCUREMENT COMMISSION
Realizing the need to have a strong body to monitor procurements amounting to several thousands of billions of rupees annually being undertaken by various government ministries, departments, as well by semi-government organizations including statutory boards, commissions, authorities, universities, banks and government owned commercial enterprises, the government established in 2015 the National Procurement Commission as an independent commission. It is the sole authority for the governance of all procurement activities by Government Institutions.
This was included as one among the nine independent commissions established under the Nineteenth Amendment to the Constitution (NAC) of Sri Lanka. The NAC Act describes the constitution, functions and powers vested on the NPC. However, as lamented by the Justice Minister, during the last five years of its existence one cannot be satisfied that it was effective in streamlining procurement procedures and in monitoring the procurements being made in government organizations as provided for in the NAC Act.
CONSTITUTION AND FUNCTIONS
The NPC comprises five members appointed by the President on the recommendation of the Constitutional Council (CC), of whom at least three members shall be persons who have had proven experience in procurement, accountancy, law or public administration. The President shall, on the recommendation of the CC, appoint one member as the Chairman of the NPC. The NAC Act has assigned the following functions to the NPC.
(1) It shall be the function of the Commission to formulate fair, equitable, transparent, competitive and cost effective procedures and guidelines, for the procurement of goods and services, works, consultancy services and information systems by government institutions and cause such guidelines to be published in the Gazette and within three months of such publication, to be placed before Parliament.
(2) It shall be the function of the Commission to:
(a) monitor and report to the appropriate authorities, on whether all procurement of goods and services, works, consultancy services and information systems by government institutions are based on procurement plans prepared in accordance with previously approved action plans;
(b) monitor and report to the appropriate authorities on whether all qualified bidders for the provision of goods and services, works, consultancy services and information systems by government institutions are afforded an equal opportunity to participate in the bidding process for the provision of those goods and services, works, consultancy services and information systems;
(c) monitor and report to the appropriate authorities on whether the procedures for the selection of contractors, and the awarding of contracts for the provision of goods and services, works, consultancy services and information systems to government institutions, are fair and transparent; and
(d) report on whether members of Procurement Committees and Technical Evaluation Committees relating to the procurements, appointed by government institutions are suitably qualified; and
(e) investigate reports of procurements made by government institutions outside established procedures and guidelines, and to report the officers responsible for such procurements to the relevant authorities for necessary action.
EXERCISING THE FUNCTIONS UNDER THE NPC
Though the functions of the NPC are clearly laid down in the NAC Act as listed above, the NPC does not appear to exercise them when public sector organizations procure goods or services. This may be due to the fact the NPC has not published any gazette notifications announcing any regulations that other public sector organizations are bound to follow when making procurements. The NPC does not seem to voluntarily monitor procurement processes in other organizations though it has the mandate to perform that function. This was evident from their response to a query made by the writer with regard to procurements undertaken by the Ceylon Electricity Board (CEB).
The CEB has been attempting to procure thermal power plants with capacity 300 MW in the recent past which have not been finalized yet. It is noteworthy that such a power plant will cost around USD 300 million or LKR 50 billion. The writer pointed out in several of his writings in the Island (28.03.2019, 19.08.2019 & 03.10.2019) the shortcomings in their procurement process that has caused delays in finalizing the procurements. The CEB is also planning to procure a coal power plant of capacity 300 MW from China without going through the approved procurement guidelines despite the fact that the procurement involves such a large sum of money.
Several months ago, the writer brought this to the attention of the NPC inquiring whether NPC has monitored these procurements as mandated in the Act. The response the writer received was that the NPC would inquire into such cases only if they receive an official request from the relevant Ministry! This is an absurd situation, because one cannot expect the Ministry to make such a request when the Ministry itself is a party responsible for the delays.
Obviously, the Commission has not understood their mission and it is necessary to have a set of new members who understand their mission and motivated to exercise their authority without fear and favour. Enforcing guidelines on procurements worth several thousands or millions of rupees will not serve the purpose of having such a set of guidelines, if the guidelines are overlooked in the case of high-value procurements. If the NPC has not been effective in the past, the solution is to change its management rather than closing down the organization.
CURRENT PROCEDURE IN PROCUREMENT
For the purpose of procuring high value goods and services, several Procurement Committees (PC) are appointed to handle the procurement process and for the determination of contract award.
A department or an institute after identifying the need to make a procurement, a request is made to the Treasury through the relevant Ministry for budgetary allocation for the procurement along with a statement justifying the procurement. Thereafter a Technical Devaluation Committee (TEC) is appointed with the concurrence of the Ministry who will draft the specifications for the procurement. It is important that this is done carefully not making it too stringent or too general. Generally, a member from an outside organization with relevant expertise is included in the TEC.
The procurement division of the organization will then prepare a Request for Proposals (RFP) incorporating the specifications and other tender requirements such as specifying bid bonds and procurement bonds. Depending on the value of the procurement, Ministry Procurement Committee (MPC) and a Cabinet Appointed Procurement Committee (CAPC) will be appointed who are expected to screen the RFP to ensure that it does not favour a particular supplier. The RFP should also be written in simple language giving only the essential information so that the bid evaluation could be carried out expeditiously. Tenders with complicated RFPs invariably will end up in court cases. Once approved, the RFP is published in the media calling for proposals.
The functions of the NPC as listed above would require that the composition of the PCs and TECs as well as the RFP documents are approved by the NPC to ensure that members of the PCs are suitably qualified and also all qualified bidders are afforded an equal opportunity to participate in the bidding process, as required under the functions of the NPC. The author believes that this process does not happen now probably because there are no regulations gazetted by the NPC to that effect. This is one of the failures of NPC that needs to be rectified.
The bids received are first evaluated by the TEC and those meeting the specifications and other tender conditions are forwarded to the MPC and depending on the value of the tender, submitted to the CAPC as well. In making the final recommendation, compliance with specifications is given priority while taking note of the value of the bid offered as well as the suitability of the bidder for supplying the item or providing the service requested. If an unsuccessful bidder is not satisfied with the decision for the award, he may appeal to a standing Appeals Board requesting reconsideration of the evaluation.
CABINET INVOLVEMENT IN AWARDING CONTRACTS
It is the general practice today to seek the approval of the Cabinet of Ministers for bids worth above a certain limit. If one peruses the list of Cabinet decisions published weekly, it is noted that a significant number of decisions reported in every Cabinet meeting are in respect of approvals for awarding contracts for construction of buildings for the government including hospitals, Divisional Secretariats, schools, universities and other infrastructure facilities. Is this the function of the Cabinet of Ministers? Shouldn’t they spend their time on more important issues of national level?
The author would like to propose that the function of granting approvals for high-value contracts be vested with the NPC, relieving the Ministers of this responsibility. Afterall, the Cabinet cannot independently check the papers submitted to it for suitability of the item or whether correct procedures have been followed in selecting the successful bidder or not but have to depend on the recommendations of the CAPC.
On the other hand, if this responsibility is given to the NPC, it can independently verify whether the correct selection has been made after proper evaluation following the published procurement guidelines or not. Where necessary, NPC could co-opt outside experts for this purpose. However, one pre-requisite that needs to be followed is to have officers of the highest integrity to undertake such work.
Seeking cabinet approval may be limited to cases of large national scale developmental projects as well as on policy issues pertaining to procurements rather than granting approval for routine construction work. The Cabinet has no capability to verify whether the estimated costs are correct or not. It is best to leave it to the NPC.
CONCLUSION
Though the functions assigned to the NPC include monitoring and reporting to the appropriate authorities whether proper procedures have been followed in the procurement process undertaken by public sector organizations or not, the NPC has not been exercising this function adequately, probably due to want of commitment or lack of understanding of its functions by the Commission members. Hence, there is a need to have a more committed set of Commission members to make the NPC more effective rather than disbanding it.
In the event the 19th Amendment to the Constitution is repealed while introducing the 20th Amendment, it is still worth retaining the NPC by passing a separate Act of Parliament with more powers assigned to it. The NPC should be given powers to examine procurement processes undertaken by public sector organizations on its own initiative and to grant approval for high-value tenders, in addition to its current functions including monitoring.
Author
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Author
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There’s an ill more dangerous and pervasive than the Coronavirus that’s currently sweeping Sri Lanka. That is the fear to express one’s convictions. Across the public sector of the country in particular many persons holding high office are stringently regulating and controlling the voices of their consciences and this bodes ill for all and the country.
The corrupting impact of fear was discussed in this column a couple of weeks ago when dealing with the military coup in Myanmar. It stands to the enduring credit of ousted Myanmarese Head of Government Aung San Suu Kyi that she, perhaps for the first time in the history of modern political thought, singled out fear, and not power, as the principal cause of corruption within the individual; powerful or otherwise.
To be sure, power corrupts but the corrupting impact of fear is graver and more devastating. For instance, the fear in a person holding ministerial office or in a senior public sector official, that he would lose position and power as a result of speaking out his convictions and sincere beliefs on matters of the first importance, would lead to a country’s ills going unaddressed and uncorrected.
Besides, the individual concerned would be devaluing himself in the eyes of all irrevocably and revealing himself to be a person who would be willing to compromise his moral integrity for petty worldly gain or a ‘mess of pottage’. This happens all the while in Lankan public life. Some of those who have wielded and are wielding immense power in Sri Lanka leave very much to be desired from these standards.
It could be said that fear has prevented Sri Lanka from growing in every vital respect over the decades and has earned for itself the notoriety of being a directionless country.
All these ills and more are contained in the current controversy in Sri Lanka over the disposal of the bodies of Covid victims, for example. The Sri Lankan polity has no choice but to abide by scientific advice on this question. Since authorities of the standing of even the WHO have declared that the burial of the bodies of those dying of Covid could not prove to be injurious to the wider public, the Sri Lankan health authorities could go ahead and sanction the burying of the bodies concerned. What’s preventing the local authorities from taking this course since they claim to be on the side of science? Who or what are they fearing? This is the issue that’s crying out to be probed and answered.
Considering the need for absolute truthfulness and honesty on the part of all relevant persons and quarters in matters such as these, the latter have no choice but to resign from their positions if they are prevented from following the dictates of their consciences. If they are firmly convinced that burials could bring no harm, they are obliged to take up the position that burials should be allowed.
If any ‘higher authority’ is preventing them from allowing burials, our ministers and officials are conscience-bound to renounce their positions in protest, rather than behave compromisingly and engage in ‘double think’ and ‘double talk’. By adopting the latter course they are helping none but keeping the country in a state of chronic uncertainty, which is a handy recipe for social instabiliy and division.
In the Sri Lankan context, the failure on the part of the quarters that matter to follow scientific advice on the burials question could result in the aggravation of Islamophobia, or hatred of the practitioners of Islam, in the country. Sri Lanka could do without this latter phobia and hatred on account of its implications for national stability and development. The 30 year war against separatist forces was all about the prevention by military means of ‘nation-breaking’. The disastrous results for Sri Lanka from this war are continuing to weigh it down and are part of the international offensive against Sri Lanka in the UNHCR.
However, Islamophobia is an almost world wide phenomenon. It was greatly strengthened during Donald Trump’s presidential tenure in the US. While in office Trump resorted to the divisive ruling strategy of quite a few populist authoritarian rulers of the South. Essentially, the manoeuvre is to divide and rule by pandering to the racial prejudices of majority communities.
It has happened continually in Sri Lanka. In the initial post-independence years and for several decades after, it was a case of some populist politicians of the South whipping-up anti-Tamil sentiments. Some Tamil politicians did likewise in respect of the majority community. No doubt, both such quarters have done Sri Lanka immeasurable harm. By failing to follow scientific advice on the burial question and by not doing what is right, Sri Lanka’s current authorities are opening themselves to the charge that they are pandering to religious extremists among the majority community.
The murderous, destructive course of action adopted by some extremist sections among Muslim communities world wide, including of course Sri Lanka, has not earned the condemnation it deserves from moderate Muslims who make-up the preponderant majority in the Muslim community. It is up to moderate opinion in the latter collectivity to come out more strongly and persuasively against religious extremists in their midst. It will prove to have a cementing and unifying impact among communities.
It is not sufficiently appreciated by governments in the global South in particular that by voicing for religious and racial unity and by working consistently towards it, they would be strengthening democratic development, which is an essential condition for a country’s growth in all senses.
A ‘divided house’ is doomed to fall; this is the lesson of history. ‘National security’ cannot be had without human security and peaceful living among communities is central to the latter. There cannot be any ‘double talk’ or ‘politically correct’ opinions on this question. Truth and falsehood are the only valid categories of thought and speech.
Those in authority everywhere claiming to be democratic need to adopt a scientific outlook on this issue as well. Studies conducted on plural societies in South Asia, for example, reveal that the promotion of friendly, cordial ties among communities invariably brings about healing among estranged groups and produces social peace. This is the truth that is waiting to be acted upon.
Author
By Sanjeewa Jayaweera
It was on 3rd January 1972 that our family arrived in Karachi from Moscow. Our departure from Moscow had been delayed for a few weeks due to the military confrontation between Pakistan and India. It ended on 16th December 1971. After that, international flights were not permitted for some time.
The contrast between Moscow and Karachi was unbelievable. First and foremost, Moscow’s temperature was near minus 40 degrees centigrade, while in Karachi, it was sunny and a warm 28 degrees centigrade. However, what struck us most was the extreme warmth with which the airport authorities greeted our family. As my father was a diplomat, we were quickly ushered to the airport’s VIP Lounge. We were in transit on our way to Rawalpindi, the airport serving the capital of Islamabad.
We quickly realized that the word “we are from Sri Lanka” opened all doors just as saying “open sesame” gained entry to Aladdin’s cave! The broad smile, extreme courtesy, and genuine warmth we received from the Pakistani people were unbelievable.
This was all to do with Mrs Sirima Bandaranaike’s decision to allow Pakistani aircraft to land in Colombo to refuel on the way to Dhaka in East Pakistan during the military confrontation between Pakistan and India. It was a brave decision by Mrs Bandaranaike (Mrs B), and the successive governments and Sri Lanka people are still enjoying the fruits of it. Pakistan has been a steadfast and loyal supporter of our country. They have come to our assistance time and again in times of great need when many have turned their back on us. They have indeed been an “all-weather” friend of our country.
Getting back to 1972, I was an early beneficiary of Pakistani people’s love for Sri Lankans. I failed the entrance exam to gain entry to the only English medium school in Islamabad! However, when I met the Principal, along with my father, he said, “Sanjeewa, although you failed the entrance exam, I will this time make an exception as Sri Lankans are our dear friends.” After that, the joke around the family dinner table was that I owed my education in Pakistan to Mrs B!
At school, my brother and I were extended a warm welcome and always greeted “our good friends from Sri Lanka.” I felt when playing cricket for our college; our runs were cheered more loudly than of others.
One particular incident that I remember well was when the Embassy received a telex from the Foreign inistry. It requested that our High Commissioner seek an immediate meeting with the Prime Minister of Pakistan, Mr Zulifikar Ali Bhutto (ZB), and convey a message from Mrs B. The message requested that an urgent shipment of rice be dispatched to Sri Lanka as there would be an imminent rice shortage. As the Ambassador was not in the station, the responsibility devolved on my father.
It usually takes about a week or more to get an audience with the Prime Minister (PM) of a foreign country due to their busy schedule. However, given the urgency, my father spoke to the Foreign Ministry’s Permanent Sectary, who fortunately was our neighbour and sought an urgent appointment. My father received a call from the PM’s secretary around 10 P.M asking him to come over to the PM’s residence. My father met ZB around midnight. ZB was about to retire to bed and, as such, was in his pyjamas and gown enjoying a cigar! He had greeted my father and had asked, “Mr Jayaweera, what can we do for great friend Madam Bandaranaike?. My father conveyed the message from Colombo and quietly mentioned that there would be riots in the country if there is no rice!
ZB had immediately got the Food Commissioner of Pakistan on the line and said, “I want a shipload of rice to be in Colombo within the next 72 hours!” The Food Commissioner reverted within a few minutes, saying that nothing was available and the last export shipment had left the port only a few hours ago to another country. ZB had instructed to turn the ship around and send it to Colombo. This despite protests from the Food Commissioner about terms and conditions of the Letter of Credit prohibiting non-delivery. Sri Lanka got its delivery of rice!
The next was the visit of Mrs B to Pakistan. On arrival in Rawalpindi airport, she was given a hero’s welcome, which Pakistan had previously only offered to President Gaddafi of Libya, who financially backed Pakistan with his oil money. That day, I missed school and accompanied my parents to the airport. On our way, we witnessed thousands of people had gathered by the roadside to welcome Mrs B.
When we walked to the airport’s tarmac, thousands of people were standing in temporary stands waving Sri Lanka and Pakistan flags and chanting “Sri Lanka Pakistan Zindabad.” The noise emanating from the crowd was as loud and passionate as the cheering that the Pakistani cricket team received during a test match. It was electric!
I believe she was only the second head of state given the privilege of addressing both assemblies of Parliament. The other being Gaddafi. There was genuine affection from Mrs B amongst the people of Pakistan.
I always remember the indefatigable efforts of Mr Abdul Haffez Kardar, a cabinet minister and the President of the Pakistan Cricket Board. From around 1973 onwards, he passionately championed Sri Lanka’s cause to be admitted as a full member of the International Cricket Council (ICC) and granted test status. Every year, he would propose at the ICC’s annual meeting, but England and Australia’s veto kept us out until 1981.
I always felt that our Cricket Board made a mistake by not inviting Pakistan to play our inaugural test match. We should have appreciated Mr Kardar and Pakistan’s efforts. In 1974 the Pakistan board invited our team for a tour involving three test matches and a few first-class games. Most of those who played in our first test match was part of that tour, and no doubt gained significant exposure playing against a highly talented Pakistani team.
Several Pakistani greats were part of the Pakistan and India team that played a match soon after the Central Bank bomb in Colombo to prove that it was safe to play cricket in Colombo. It was a magnificent gesture by both Pakistan and India. Our greatest cricket triumph was in Pakistan when we won the World Cup in 1996. I am sure the players and those who watched the match on TV will remember the passionate support our team received that night from the Pakistani crowd. It was like playing at home!
I also recall reading about how the Pakistani government air freighted several Multi Barrell artillery guns and ammunition to Sri Lanka when the A rmy camp in Jaffna was under severe threat from the LTTE. This was even more important than the shipload of rice that ZB sent. This was crucial as most other countries refused to sell arms to our country during the war.
Time and again, Pakistan has steadfastly supported our country’s cause at the UNHCR. No doubt this year, too, their diplomats will work tirelessly to assist our country.
We extend a warm welcome to Mr Imran Khan, the Prime Minister of Pakistan. He is a truly inspirational individual who was undoubtedly an excellent cricketer. Since retirement from cricket, he has decided to get involved in politics, and after several years of patiently building up his support base, he won the last parliamentary elections. I hope that just as much as he galvanized Sri Lankan cricketers, his political journey would act as a catalyst for people like Kumar Sangakkara and Mahela Jayawardene to get involved in politics. Cricket has been called a “gentleman’s game.” Whilst politics is far from it!.
Author
Believe me, seeing certain videos, on social media, depicting action, on the dance floor, at some of these entertainment venues, got me wondering whether this Coronavirus pandemic is REAL!
To those having a good time, at these particular venues, and, I guess, the management, as well, what the world is experiencing now doesn’t seem to be their concerned.
Obviously, such irresponsible behaviour could create more problems for those who are battling to halt the spread of Covid-19, and the new viriant of Covid, in our part of the world.
The videos, on display, on social media, show certain venues, packed to capacity – with hardly anyone wearing a mask, and social distancing…only a dream..
How can one think of social distancing while gyrating, on a dance floor, that is over crowded!
If this trend continues, it wouldn’t be a surprise if Coronavirus makes its presence felt…at such venues.
And, then, what happens to the entertainment scene, and those involved in this field, especially the musicians? No work, whatsoever!
Lots of countries have closed nightclubs, and venues, where people gather, in order to curtail the spread of this deadly virus that has already claimed the lives of thousands.
Thailand did it and the country is still having lots of restrictions, where entertainment is concerned, and that is probably the reason why Thailand has been able to control the spread of the Coronavirus.
With a population of over 69 million, they have had (so far), a little over 25,000 cases, and 83 deaths, while we, with a population of around 21 million, have over 80,000 cases, and more than 450 deaths.
I’m not saying we should do away with entertainment – totally – but we need to follow a format, connected with the ‘new normal,’ where masks and social distancing are mandatory requirements at these venues. And, dancing, I believe, should be banned, at least temporarily, as one can’t maintain the required social distance, while on the dance floor, especially after drinks.
Police spokesman DIG Ajith Rohana keeps emphasising, on TV, radio, and in the newspapers, the need to adhere to the health regulations, now in force, and that those who fail to do so would be penalised.
He has also stated that plainclothes officers would move around to apprehend such offenders.
Perhaps, he should instruct his officers to pay surprise visits to some of these entertainment venues.
He would certainly have more than a bus load of offenders to be whisked off for PCR/Rapid Antigen tests!
I need to quote what Dr. H.T. Wickremasinghe said in his article, published in The Island of Tuesday, February 16th, 2021:
“…let me conclude, while emphasising the need to continue our general public health measures, such as wearing masks, social distancing, and avoiding crowded gatherings, to reduce the risk of contact with an infected person.
“There is no science to beat common sense.”
But…do some of our folks have this thing called COMMON SENSE!
