The Bahamas, for instance:
Public procurement in The Bahamas
The law in this field is designed to regulate the market and open it up to competition, to counteract corrupt practices and to promote the free movement of goods and service.
Financial Administrative and Audit Act Public Procurement in The Bahamas is governed by the Financial Administrative and Audit Act and the Financial Regulations.
The Financial Administrative and Audit Act is used to guide the policy of the procurement process presently.
This Act does not specifically deal with the process but rather provides guidance for the formation of the Go-vernment Tender Board and the monetary value of goods or services they could make approval for.
Details of the actual procurement process are just referred to as government policy; it has no legal footing.
The proposed legislation, the Public Procurement Bill, attempts to legitimize the government's policy by giving it a legal framework.
The government uses a variety of tendering methods such as; select tendering, invited or negotiation tendering or public tendering.
Select Tendering is specifically geared towards contractors who are already known to meet certain prerequirement standards.
Invited or Negotiation Tendering is directed towards one company which the government has had a relationship with to satisfy emergency tendering obligations.
Public Tendering or Open Tendering means that all interested members of the public are invited to submit bids regardless of any prerequirements.
This is arguably better than no procurement guide at all, but it is hard to find any teeth to enforce this law or critically evaluate its acts and efficacy, at least as described in this editorial; I have no independent knowledge of the actual laws of The Bahamas.
The Commonwealth of the Northern Marianas Islands has what, at a glance, looks like a much more particular and objectively assessable procurement regulatory regime, adopted by regulation. See Northern Marianas Islands Administrative Code Chapter 70-30.
But digging deeper, the consistency and efficacy of the law is, at least theoretically, compromised by decentralization and exceptions that, perhaps, swallow the rules.
For instance, although the Commission Comment to Chapter 70-30 suggests that legislation authorizes the Department of Finance "to be in control of and be responsible for procurement and supply in the Commonwealth", one of the largest agencies in the government, the Board of Education, has its own rules and rule-making authority. (See, NMIAC Chapter 60-40.)
And so does the Marianas Visitors Authority (NMIAC Chapter 90-20), and the Port Authority (NMIAC Chapter 40-50), and the Utilities Corporation (NMIAC Chapter 50-50).
It reminds me of the Fleetwood Mac song, "Go Your Own Way".
And, when it comes to exceptions swallowing the rule, consider the general regulation, under the Department of Finance, regarding sole source procurement.
In this example, sole source section is governed by NMIAC § 70-30.3-225. Before examining this, however, consider the American Bar Association's Model Procurement Code for sole source selection, § 3-205, and corresponding regulation R3-205.01.
The ABA code and regulation make it explicit that sole source procurement "is not permissible unless a requirement is available from only a single supplier." Thus, if there are more than one potential sources from which to obtain the requirement, competition is required.
R3-205.01 requires that the determination as to whether a procurement shall be made as a sole source, "and the basis therefor", shall be in writing.
R3-205.01 provides only four "examples of circumstances which could necessitate sole source procurement", and it must be emphasized, each of these presumes only one potential provider:
(a) where compatibility of equipment needs is "paramount".
(b) where a sole supplier's item is needed for trial use or testing.
(c) where a sole supplier's item is to be procured for resale.
(d) where public utility services are to be procured.
NMIAC § 70-30.3-225, however, is much broader. It does not condition all sole source selection on the primary condition that there is no other source. It begins with sole source as a criterion, then goes on to allow other criteria, regardless if there are other providers.
§ 70-30.3-225(a) allows a contract to be awarded without competition when
"(1) The Director determines in writing that there is only one source for the supply, service, or construction; or (2) ... ; or (3) or ... (7) For policy consultants of the Governor, Lt. Governor, and presiding officers of the Legislature."This last sole source authority can arguably be read quite broadly.
On the bright side (for transparency and accountability), § 70-30.3-225(b) requires a
"written justification for sole source procurement shall be prepared by the official with expenditure authority and shall contain the specific unique capabilities required; the specific unique capabilities of the contractor; the efforts made to obtain competition; and the specific considerations given to alternative sources and specific reasons why alternative sources were not selected."I read this section as being applicable to any sole source procurement, not just the "classic" kind specified in § 70-30.3-225(a)(1).
Further regulatory "teeth" for sole source selection is found in NMAIC § 70-30.3-215(b), including,
"(b)(1)(iv) Reasonableness of Price. No presumption of reasonableness shall be attached to the incurring of costs by a contractor. The following factors will be used in determining whether costs are justified: cost information in sufficient detail to support and justify the contract; [etc.]"I am not saying by any stretch of implication that the CNMI's procurement regime is a get-out-of-jail-free system, but only that, in some critical use of the language in its regulations, it is broader than appears at first glance. Indeed, I have not conducted the kind of close examination of the CNMI procurement law as I have done for Guam. Maybe some day. A casual review suggests they have many common provisions. But the devil is always in the detail.
Of course, regardless what any jurisdiction's laws and regulations prescribe and proscribe, any regime is only as efficacious as the will of the government to abide by it, and enforce it.
If government ignores it's well intended procurement regime, it may as well hand out get-out-of-jail-free passes for its procuring officers and staff.
Related articles:
$392K sole-source contract to Ada planned as early as Sept.
Biden looking into awarding of non-bid contract
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