COMMITTEE OF EXPERTS OF THE MECHANISM …
MECHANISM FOR FOLLOW-UP ON THE OEA/Ser.L
IMPLEMENTATION OF THE INTER-AMERICAN SG/MESICIC/doc.214/08 rev. 1
CONVENTION AGAINST CORRUPTION 9 June 2007
Thirteenth Meeting of the Committee of Experts Original: Spanish
June 23-27, 2008
Washington, DC.
GUYANA
REVISED VERSION OF THE DRAFT PRELIMINARY REPORT
COMMITTEE OF EXPERTS OF THE MECHANISM FOR FOLLOW-UP ON THE IMPLEMENTATION OF THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION
DRAFT PRELIMINARY REPORT ON IMPLEMENTATION IN THE CO-OPERATIVE REPUBLIC OF GUYANA OF THE CONVENTION PROVISIONS SELECTED FOR REVIEW IN THE SECOND ROUND, AND ON FOLLOW-UP TO THE RECOMMENDATIONS FORMULATED TO THAT COUNTRY IN THE FIRST ROUND[?]
REVISED VERSION
AS PER 23(F) OF THE RULES OF PROCEDURE
Document prepared by the Technical Secretariat
(Department of Legal Cooperation, Secretariat for Legal Affairs,
General Secretariat of the OAS)
NOTE FROM THE SECRETARIAT # 1:
1. Those sections of the draft that have been commented on by the Co-Operative Republic of Guyana, including any updated information that was provided, are identified through the notes from the Secretariat, and proposed texts are underlined and in bold. Likewise, texts that are proposed to be deleted are crossed out.
2. Those sections of the draft that have been commented on by Jamaica and The Bahamas, as members of the subgroup, are identified through notes from the Secretariat, and proposed texts are underlined and in bold. Likewise, texts that are proposed to be deleted are crossed out.
3. The texts proposed by the Secretariat, in response to the observations of the member countries of the review subgroup are identified through the notes from the Secretariat, and proposed texts are underlined and in bold.
4. Adjustments made as a result of comments on spelling and form that do not substantially affect the content of the draft have already been incorporated in the text. In addition, comments regarding changes to format and wording that substantially alter from the format adopted by the Committee of Experts are not reflected, in order to maintain consistency with previously adopted Reports.
INTRODUCTION
1. Contents of the Report
This Report presents, first, a review of implementation in the Co-Operative Republic of Guyana of the provisions of the Inter-American Convention against Corruption selected by the Committee of Experts of the Follow-up Mechanism (MESICIC) for review in the second round: Article III, paragraphs 5 and 8, and Article VI.
Second, the Report will examine follow-up to the recommendations that were formulated to the Co-Operative Republic of Guyana by the MESICIC Committee of Experts in the first round, which are contained in the Report on that country adopted by the Committee at its Seventh meeting, and published at the following web page:
2. Ratification of the Convention and adherence to the Mechanism
According to the official register of the OAS General Secretariat, the Co-Operative Republic of Guyana ratified the Inter-American Convention against Corruption on December 11, 2000 and deposited the instrument of ratification on March 15, 2001. As noted in the OAS General Secretariat’s register, Guyana formulated a reservation with respect to actions of seizure.[?]
In addition, the Co-Operative Republic of Guyana signed the Declaration on the Mechanism for Follow-up on the Implementation of the Inter-American Convention against Corruption on June 4, 2002.
I. SUMMARY OF INFORMATION RECEIVED
1. Response of the Co-Operative Republic of Guyana
The Committee wishes to acknowledge the cooperation that it received throughout the review process from the Co-Operative Republic of Guyana, and in particular from the Attorney General’s Chambers, which was evidenced, inter alia, in the Response to the Questionnaire.
For its review, the Committee took into account the information provided by the Co-Operative Republic of Guyana up to November 2, 2007, and that requested by the Secretariat, to carry out its functions in keeping with its Rules of Procedure and Other Provisions.
II. REVIEW OF IMPLEMENTATION BY THE STATE PARTY OF THE CONVENTION PROVISIONS SELECTED FOR THE SECOND ROUND
1. SYSTEMS OF GOVERNMENT HIRING AND PROCUREMENT OF GOODS AND SERVICES (ARTICLE III (5) OF THE CONVENTION)
. 1.1 SYSTEMS OF GOVERNMENT HIRING
1 Existence of provisions in the legal framework and/or other measures
The Co-Operative Republic of Guyana has a set of provisions related to the above systems, among which the following provisions related to the principal systems should be noted:
- Constitutional provisions, such as those that establish the Judicial Service Commission (Article 134) and the Public Service Commission (Article 135) as independent bodies, vested with the power to appoint persons to hold or to act in the relevant offices. The Judicial Service Commission is responsible for appointing judicial and legal officers such as magistrates and state counsel in accordance with Article 199(1) of the Constitution. Pursuant to Articles 201 (1) and (7) of the Constitution, the Public Service Commission is responsible for appointment to all public offices except those within the jurisdiction of the Judicial Service Commission, the Police Service Commission or the Teaching Service Commission, as well as the following offices: Auditor General, Solicitor General, Permanent Secretary, the Cabinet, Ambassador, High Commissioner or other principal representative of Guyana in any other country or accredited to any international organization. Additionally, Articles 199(2) and 201(2) provide, respectively, that the Judicial Service Commission and the Public Service Commission may delegate in writing, any of their powers to make appointments to the persons established therein.[?]
NOTE FROM THE SECRETARIAT # 2:
Jamaica proposes to amend the previous paragraph as follows:
Constitutional provisions, such as those that establish the Judicial Service Commission (Article 134), the Public Service Commission (Article 135), the Teaching Service Commission (Article 136), and the Police Service Commission (Article 137) as independent bodies, vested with the power to appoint persons to hold or to act in the relevant offices. The Judicial Service Commission is responsible for appointing judicial and legal officers such as magistrates and state counsel in accordance with Article 199(1) of the Constitution. Pursuant to Articles 201 (1) and (7) of the Constitution, the Public Service Commission is responsible for appointment to all public offices except those within the jurisdiction of the Judicial Service Commission, the Police Service Commission or the Teaching Service Commission, as well as the following offices: Auditor General, Solicitor General, Permanent Secretary, the Cabinet, Ambassador, High Commissioner or other principal representative of Guyana in any other country or accredited to any international organization. Article 208 provides that the Teaching Service Commission is responsible for appointing persons as teachers in the public service. In accordance with Article 212, with the exception of the Commissioner of Police and Deputy Commissioners of Police, the Police Service Commission has the power to appoint persons to offices in the Police Force of or above the rank of inspector. Police officers below the rank of inspector are appointed by the Commissioner of Police. Additionally, Articles 199(2), 201(2), 209(2), and 212(2) provide, respectively, that the Judicial Service Commission, the Public Service Commission, the Teaching Service Commission and the Police Service Commission may delegate in writing, any of their powers to make appointments to the persons established therein.
Jamaica further notes that it is important to include references to all the Service Commissions that provide a legal framework for systems of Government hiring.
The Co-Operative Republic of Guyana agrees with inclusion of the Teaching Service and Police Service Commissions as proposed by Jamaica and makes the following observation regarding the previous paragraph:
“The Judicial Service Commission is responsible for appointing judicial and legal officers. Please also see attached Appendix A submitted by the State party for further amplification re appointment and removal of judges, magistrates etc based on the constitutional reform process 1999-2003”.
In addition, the Co-Operative Republic of Guyana requests the inclusion of the following text:
“It should be noted by the Committee that extensive Constitutional and Parliamentary Reform in the 1999-2003 period for the former, and 2003-2006 period for the latter, as well as strengthening fiduciary oversight through legislative, systemic, and administrative means. In fact, it should be noted that Guyana as a Commonwealth country has instituted the most advanced constitutional and parliamentary reforms for the Caribbean region.
These interventions resulted from a massive countrywide process of consultations under a Presidential appointed Parliamentary Constitutional Reform Commission and the involvement and support of the Parliament, these have:”
“(i) provided for the creation of an expanded Parliamentary committee system that oversights all spheres of government in 4 sectoral committees ( Economic Services, Social Services, Foreign Services and Natural Resources);”
“(ii) brought the Auditor General’s Office, now called the Audit Office, directly under the Parliament and general supervision of the Public Accounts Committee (chaired by the Opposition), and authorized the Auditor General to submit his reports directly to the Speaker of the Parliament instead of through the Minister of Finance as was previously the case: ;”
“(iii) conferred on the Public Accounts Committee the power to appoint the members of the Public Procurement Commission, a new constitutional body enshrined in the Public Procurement Act 2003;”
“(iv) created a Parliamentary Standing Committee on Appointments to Constitutional Commissions which include appointments of members to the Public Service Commission, the Judicial Service Commission, the Police Service Commission, the four new Human Rights Commissions – the Ethnic Relations Commission, the Indigenous Peoples Commission, the Rights of the Child Commission, and the Women and Gender Equality Commission; these nominations are guided by spelt out procedures and a consensual mechanism that involve civil society from which the nominees emanate and the adoption by the Parliament and their subsequent submission to the President to appoint;”
“(v) removed the exclusive power of the President to appoint the members of the Service Commissions; presently the President has in some cases one appointee in his own right and in other cases he can only appoint one person with the agreement of the Leader of the Opposition;”
“vi) provided for the appointment of the Chancellor of the Judiciary, the Chief Justice and the Ombudsman only upon the agreement of the name(s)by the President and the Leader of the Opposition.”
In response to Jamaica’s proposed amendments, the Secretariat notes that the scope of analysis is limited to public servants in the civil service (including those of oversight bodies) and those that work in the legislative (who are not lawmakers) and the judicial branch. The hiring of public education workers and police members has not been analyzed in any of the previous country reports (including Trinidad and Tobago and The Bahamas). The Secretariat further notes that according to the criterion of “Equal Treatment” found in the Methodology for the review of the implementation of the provisions of the Inter-American Convention against Corruption selected in the Second Round, “[a]s concerns the review of information on the implementation of the selected provisions of the Convention, all States Parties shall enjoy equal and consistent treatment. With a view to ensuring compliance with this criterion, in particular, the following precautionary measures shall be adopted in addition to the principles outlined in the Report of Buenos Aires and the Rules:
a. All States Parties shall be reviewed within the framework of the round and in accordance with the same criteria and procedures;
b. The questionnaire shall be the same for all States Parties; and
c. All country reports shall have the same structure.”
In response to Guyana’s comments and the submission of Annex A, the Secretariat suggests the inclusion of the information contained in Article 199(3) of the Constitution as a footnote, in order to better clarify which offices the Judicial Service Commission is vested with the power to make appointments:
“Article 199 applies to the office of Commissioner of Title, Magistrate, Director of Public Prosecution, Deputy Director of Public Prosecutions, Registrar of the High Court, Deputy Registrar of the High Court, Registrar of Deeds, Deputy Registrar of Deeds and to such other offices (not being offices in respect of which provision for making of appointments is made by any provision of this Constitution other than Article 201) connected with the courts of Guyana or for appointment to which legal qualifications are required as may be prescribed by Parliament.”
- Administrative provisions, such as the Public Service Rules 2004 (PSR), which provide important regulations that govern the Public Service and which are applicable to those who fall under the Public Service Commission. Among those to be highlighted are:
NOTE FROM THE SECRETARIAT # 3:
Jamaica makes the following observation:
“Are there rules that govern other areas of the public service?”
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“(it) should be 1987 not 2004 (PSR)”
The Secretariat notes that the version submitted by the Co-Operative Republic of Guyana and which was reviewed in the preparation of the draft preliminary country report is dated 2004. It can be found at:
▪ Provisions which provide that the Secretary of the Public Service Commission shall from time to time publicly advertise existing vacancies in Ministries/Departments/Regions (Rule A15). If the vacancy is filled under delegated authority, the entity concerned shall arrange for the vacancy to be advertised by “Staff Vacancy” circular or public notice, whichever is appropriate. “Promotional posts”, however, are not advertised (Rule A17).
▪ Provisions requiring the approval of the Job Description and Job Specification before any vacant post can be filled (Rule B03).
▪ Provisions which provide that suitably qualified persons from outside the Public Service may, on application in response to vacancy advertisements, be eligible for consideration in the case of posts where service in the grade below is not a prerequisite for appointment (Rule A18).
NOTE FROM THE SECRETARIAT # 4:
Jamaica makes the following observation:
“What posts have a prerequisite of service in the grade below?”
▪ Provisions stating that whenever in the opinion of the Public Service Commission, it is possible and in the best interest of the particular service within the Public Service to do so, appointments to vacancies shall be made from within the particular service [Rule A22(1)]. If the Commission deems otherwise after considering any recommendations of a Permanent Secretary/Head of Department/Regional Executive Officer, the Commission may, with or without competition, appoint a person from within the Public Service who is in the opinion of the Commission the most suitable and best qualified [Rule A22(2)].
NOTE FROM THE SECRETARIAT # 5:
Jamaica makes the following observation:
“This sentence (If the Commission…) seems to be conveying the same idea as the previous sentence (Provisions stating that…). Is this sentence quoting the actual provision?”
In response to Jamaica, the Secretariat wishes to clarify that the first sentence in the paragraph refers to appointments to vacancies made from within the particular service, while in the second sentence it refers to appointments made from within the Public Service in general, when the Public Service Commission considers it is impractical or not in the best interest of the Public Service to make an appointment from within the particular service.
The actual provision reads:
“where in the opinion of the Commission after considering any recommendations of a Permanent Secretary/Head of Department/Regional Executive Officer, it is impractical or not in the best interests of the Public Service to make an appointment from within the particular service, the Commission may, with or without competition, appoint a person from within the Public Service who is in the opinion of the Commission the most suitable and best qualified.”
▪ Provisions which provide that apart from the requirements of satisfying the basic qualifications for the job as the Public Service Commission may from time to time specify, candidates may also be required to take written competitive examinations, attend interviews and take practical tests, where necessary (Rule A05).
NOTE FROM THE SECRETARIAT # 6:
Jamaica makes the following observation:
“What are some of the posts that are subject to these additional requirements?”
▪ Provisions stating that requests for permission to employ temporary staff must be accompanied by adequate supporting reasons and shall be addressed to the Permanent Secretary of the Public Service Ministry. Such requests should be confined to instances where the work is of a temporary or seasonal nature or so urgent that it is necessary to employ additional staff temporarily [Rule A07(1)]. In the case of temporary appointments against substantive vacancies, the request must be sent to the Secretary of the Public Service Commission for consideration and approval [Rule A07(2)]. that limit the employment of temporary staff to instances where the work is of a temporary or seasonal nature or so urgent that it is necessary to employ additional staff temporarily [Rule A07(1)]. Additionally, those provisions require that requests for permissions to employ temporary staff be accompanied by adequate supporting reasons and addressed to the Permanent Secretary of the Public Service Ministry [Rule A07(1)] except that in the case of temporary appointments against substantive vacancies, the request must be sent to the Secretary of the Public Service Commission for consideration and approval [Rule A07(2)].
NOTE FROM THE SECRETARIAT # 7:
Jamaica proposes to amend the previous paragraph as indicated.
The Co-Operative Republic of Guyana agrees with Jamaica’s proposed amendments and comments to the previous paragraph and makes the following observation:
“There is no recognition here, maybe based on the inadequate submission from Guyana, that government hiring is contingent on availabilities of funds. Therefore in the case of temporary, seasonal or urgent employment, the sector or agency has to demonstrate the availability of funds in their budget to pay and usually these are executed for a period of 3 months on contract.”
“The only period where all new employment was treated as temporary was in the 2002-2004 period when there was no Public Service Commission based on the new Parliamentary reforms which required the newly created Parliamentary Standing Committee on Appointment to Commissions to reach agreement on the nominations and gain approval of the National Assembly in order to make these nominations to the President for appointment.”
▪ Provisions which provide that probationary periods usually apply to first appointment and are normally of one year’s duration, which may be extended upon recommendation of the relevant Permanent Secretary/Head of Department/Regional Executive Officer (Rule A12).
NOTE FROM THE SECRETARIAT # 8:
Jamaica makes the following observation:
“What are the exceptions to this rule?”
▪ Provisions allowing Public Servants in professional and certain other categories to opt for contract appointment [Rule A08(1)], once the Permanent Secretary of the Public Service Ministry has been consulted and has agreed with to the proposed terms and conditions of the contract [Rule A08(4)].
With respect to challenge and appeal mechanisms, Article 202 of the Constitution and Rule A02(3) of the PSR provide that any person may appeal to the Commission from the decision of the person exercising the power delegated under Article 202 (1) of the Constitution. The Decision of the Commission is final, unless otherwise determined by the Public Service Appellate Tribunal.[?]
2. Adequacy of the legal framework and/or other measures
With respect to the constitutional and legal provisions that refer to the systems of government hiring that the Committee has examined, based on the information available to it, they constitute a set of measures relevant to promoting the purposes of the Convention.
Notwithstanding, the Committee considers it appropriate to make a number of observations on the advisability of developing and complementing certain legal provisions that refer to those systems.
As stated in Section 1.1.1., Rule A05 of the PSR provides that, besides having to satisfy the basic qualifications for the job, candidates may also be required to take written competitive examinations, attend interviews and take practical tests, where necessary. The Committee notes that the use of written competitive examinations and interviews is optional and that there is no further provision regulating the manner in which those selection procedures are to be carried out. Additionally, the legislation does not make it explicitly clear that selection into the Public Service is based on merit. In order to properly assure the openness, equity and efficiency of the government hiring system, the Committee believes that the legislation in place should explicitly state that selection is made on merit, based on the written competitive examinations and interviews. In this regard, the Committee will formulate a recommendation (see Recommendation 1.1(a) in Section 1 of Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 9:
Jamaica proposes to amend the previous paragraph as indicated for the reasons stated on page 4 of the Comments Document submitted by Jamaica.
The Co-Operative Republic of Guyana agrees with Jamaica’s proposed amendments and makes the following observation regarding the previous paragraph:
“The State Party firstly affirms that the policy of the government in hiring, filling vacancies, promotions, etc is based on merit. Secondly, with reference to written examinations, neither the Public Service Commission, nor the Public Service Ministry, nor the government is convinced that making written examinations mandatory across the entire public service is necessary as it would include the low echelons of the public service such as cleaners, drivers, office assistants which are not essential to those job descriptions. However, interviews and supporting documents are the norm.”
“It should also be noted that the entire public service is less than one –third of the entire Labour force in Guyana.”
SEE Note from the Secretariat #39 (Recommendation).
In addition, the Committee notes that Rule A07 of the PSR provides that requests for temporary appointments should only be made in instances where the work is of a temporary or seasonal nature or so urgent that it is necessary to employ additional staff temporarily. The Committee notes that this provision that allows for temporary appointments could be open to abuse as there is no definition of “temporary or seasonal nature” or of the term “urgent” and there is no express limit on the duration of such appointments. Though the rule requires prior approval of the Permanent Secretary of the Public Service Ministry (or of the Secretary of the Public Service Commission, in the case of temporary appointments against substantive vacancies), nowhere does it state that a justified reason is to be provided. Given the potential for abuse that this exception may allow, The Co-Operative Republic of Guyana should consider providing in the Public Service Rules, limits to the duration of the temporary appointment as well as parameters that define ‘temporary or seasonal nature’ and ‘urgent’, and require that a written justification be made. In this regard, the Committee will formulate a recommendation (see Recommendation 1.1(b) in Section 1 of Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 10:
Jamaica proposes to amend the previous paragraph as indicated for the reasons stated on page 4 of the Comments Document submitted by Jamaica.
The Co-Operative Republic of Guyana agrees with Jamaica’s proposed amendments and makes the following observation regarding the previous paragraph:
“Please see State Party’s earlier comments on original page 4 of the preliminary report which answers this concern. Jamaica’s comment supports Guyana’s earlier comments.”
With respect to Jamaica’s observations, the Secretariat wishes to clarify that the written justification concerned is that of the Permanent Secretary or the Secretary of the Public Service Commission, as applicable, when authorizing or denying the requests for temporary appointments.
The Secretariat further notes that the Committee has made this recommendation in previous country reports when the same situation was found (i.e. Country reports of Honduras, Panama and The Bahamas) SEE Note from the Secretariat #2.
SEE Note from the Secretariat #41 (Recommendation).
Furthermore, the Committee notes that there are general provisions in the PSR requiring the advertising of existing vacancies in the public service. The Committee notes, however, that there are no other regulations which provide clearly defined criteria on the advertisement of hiring opportunities in the public service or of vacancies or positions to be filled, including their content and form, as well as providing a timeframe for publication, making use of the mass media (e.g. newspapers or web pages), along with the requirements for candidates, the dates the selection process will begin and the procedures to be followed to take part in the process (see Recommendation 1.1 (c) in Section 1 of Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 11:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“Firstly, vacancies in the Public Service are advertised internally in the public service including those in the 10 regional administrations. Secondly, where these cannot be filled within the public service these are advertised using the media (more particularly the newspapers) with full details- requirements of the job, qualifications required, and deadline for submission and venue.”
SEE Note from the Secretariat #42 (Recommendation).
With respect to the existence of provisions for challenging the substantive aspects of the selection process under the purview of the Public Service Commission, and the Judicial Service Commission, the Teaching Service Commission and the Police Service Commission, the Committee observes the lack of detailed regulations in this regard. Thus, the Committee suggests the adoption of provisions regulating the challenge mechanisms, based on the principles of due process and natural justice, and which can be pursued both through administrative and judicial routes. These mechanisms should ensure the openness, equity, and efficiency of the process. The Committee will formulate a recommendation in this regard (see Recommendation 1.1(d) in Section 1 of Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 12:
Jamaica proposes to amend the previous paragraph as indicated.
The Co-Operative Republic of Guyana agrees with Jamaica’s amendment and makes the following observation regarding the previous paragraph:
“The Public Service Commission process of selection includes a series of procedures including advertisement, interviews and transfers. These are open to challenges through (a) long preserved and recognized practices of the trade union movement with the Public Service Commission, the Public Service Ministry and the Ministry of Labour; (b) petitions to the Public Service Appellate Tribunal (please note there has been no case presented for this body to address in the last 5 years) and (c) a recourse to the courts (this was used in the 1980s leading to a number of land-mark cases for the workers’ rights, one challenge in 1999-2000 and none in the last 5 years)”
“The provisions governing the selection process in the Public Service Commission and the Judicial Service Commission are vastly different. The JSC’s mandate in the selection of Judges is based on a number of requirements (see submission of State party at Appendix A attached).”
The Secretariat takes note of the information presented by the Co-Operative Republic of Guyana. However, it wishes to clarify that the legislation reviewed did not provide a detailed regulation of the challenge mechanisms intended to clarify, modify or revoke substantial actions in the personnel selection processes. Thus, the same criteria used in previous situations found in previous country reports was applied (i.e. Nicaragua, Honduras, Bolivia, Panama, Chile, El Salvador and the Dominican Republic) SEE Note from the Secretariat #2.
SEE Note from the Secretariat #43 (Recommendation).
With respect to the Judiciary, while Article 199(1) of the Constitution provides that the Judicial Service Commission has the power to make appointments of judicial and legal officers, the Committee notes that there appears to be an absence of legislation regarding the manner in which those positions are appointed. The Committee considers that the apparent lack of laws or regulations on the manner to conduct recruitment for these posts as well as for their advertisement, may not properly assure the openness, equity and efficiency of the government hiring system. In this regard, the Committee will formulate a recommendation (see Recommendation 1.1(e) in Section 1 of Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 13:
Jamaica makes the following observation to the previous paragraph:
“Constitution, Section 203 – deals with the appointment of the Director of Public Prosecutions by the Judicial Service Commission.”
The Co-Operative Republic of Guyana agrees with Jamaica’s comment and makes the following observation regarding the previous paragraph:
“Furthermore, Appendix A submitted advices that the Judicial Service Commission has an exclusive mandate by the Constitution to appoint Judges, the President only appoints on their recommendation.”
The Secretariat wishes to clarify that the provisions found in the Constitution are of a general nature and do not provide details on how the selection process is to be carried out. In addition, they do not seem to include other officials that belong to the judicial branch such as attorneys, law clerks, etc. SEE Note from the Secretariat #2.
SEE Note from the Secretariat #44 (Recommendation).
With regard to the hiring of servants of oversight bodies, the Committee notes, pursuant to Article 201(7) of the Constitution, the absence of laws or regulations on the recruitment of posts in the offices of the Auditor General and of the Solicitor General. In this regard, the Committee will formulate recommendations (see Recommendations 1.1(f) and (g) in Section 1 of Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 14:
Jamaica proposes to eliminate the previous paragraph for the reasons stated on page 5 of the Comments Document submitted by Jamaica.
The Co-Operative Republic of Guyana agrees with Jamaica’s proposal and makes the following observation regarding the previous paragraph:
“In addition, the Committee needs to be au fait with the Constitutional provision in relation to the appointment of the above-mentioned post holders. Where no laws exist or are silent the constitution then is the supreme authority in regard to such issues.”
“Furthermore the Public Accounts Committee of the Parliament is given powers of “general supervision” of the Audit Office and which has agreed to and won the approval of the National Assembly for the Audit Act (2004) and the Rules and Practices of the Audit Office (2006). This latter will be submitted electronically to the Committee as Appendix C by the State Party on May 6th, 2008.”
In response to the Co-Operative Republic of Guyana, the Secretariat wishes to clarify that the paragraph in question does not refer to the appointment of the Auditor General or the Solicitor General themselves, but to the appointment of persons employed by the Auditor’s General Department and the Solicitor’s General Department. In its comments, Jamaica stated that the Public Service Commission was responsible for the appointment of public servants to those Departments. If this is correct, the Secretariat suggests the elimination of the paragraph and of the corresponding recommendations, as proposed by Jamaica.
SEE Note from the Secretariat #45 (Recommendation).
3. Results of the legal framework and/or other measures
With respect to results, the Committee notes that in its response, the Co-Operative Republic of Guyana in its Response did not provide any information stated that it did not have any statistical data available.
NOTE FROM THE SECRETARIAT # 15:
Jamaica proposes to amend the previous paragraph as indicated.
The Co-Operative Republic of Guyana agrees with Jamaica’s proposed amendments.
In addition to highlighting the importance of fully replying to the questions on results in the Questionnaire, The Committee does not have information other than that referred to above that might enable it to make a comprehensive evaluation of the results of this topic. In this regard, it will formulate a recommendation to the Service Commissions. (See Recommendation 4.2 in Chapter III of this Report)
NOTE FROM THE SECRETARIAT # 16:
Jamaica proposes to amend the previous paragraph as indicated for the reasons stated on page 5 of the Comments Document submitted by Jamaica.
The Co-Operative Republic of Guyana agrees with Jamaica’s amendments and makes the following observation regarding the previous paragraph:
“The State Party also wishes to advice the Committee that after the 2006 elections, the President appointed a Presidential Advisor on Governance and the establishment of a Governance Unit in the Office of the President which has as one of its responsibilities the oversight, assistance in the preparation of State Party reports and ensuring that Guyana’s reporting status is in compliance with its obligations under the various treaties, conventions, etc to which it has been a signatory.”
“Furthermore, the 2008-2011 period has been dedicated to improving the collection of data by the various agencies in order to improve accountability, transparency, and more efficient use of limited resources. This follows on the investment made through loans in the financial and social sectors to improve fiduciary oversight and efficiency such as the GOG/IDB Fiscal and Financial Management Project, the multi-donor /GOG Poverty Reduction Strategy Programme (2002-2007). The introduction of the IFMAS system has improved the efficiency of releases of funds, checks and balances on expenditure, controls and transparency.”
“The State party therefore acknowledges and apologizes for the inadequacy of information that the Committee received in an unofficial response to the 2007 questionnaire.”
The Secretariat wishes to clarify that it received an official response to the Questionnaire of the Second Round of Review from the Government of Guyana through its Permanent Mission to the Organization of American States. The response was submitted via Note No. OAS: 9/1/5/1 dated November 21, 2007. The response is published on the MESICIC website:
2. GOVERNMENT SYSTEMS FOR THE PROCUREMENT OF GOODS AND SERVICES
1.2.1. Existence of provisions in the legal framework and/or other measures
The Co-Operative Republic of Guyana has a set of provisions related to the above-mentioned systems, among which the following should be noted:
- Constitutional provisions, such as those found in Article 212W of the Constitution, which provides for the establishment of an independent Public Procurement Commission for the purpose of monitoring public procurement and the procedures therefor in order to ensure that the procurement of goods, services and execution of works are conducted in a fair, equitable, transparent, competitive and cost effective manner. The functions of the Commission are established by set out in Article 212AA. Additionally, Article 212DD gives provides that the Commission shall have the power to require any person, or any entity, including a ministry or government department, to provide it with information for the purposes of any investigation it is carrying out or proposes to carry out, and on the measures that have been or are being taken for the implementation of the decisions of, or compliance with any provision relating to, the Commission. Moreover, Article 212EE provides that Parliament may by law establish a Public Procurement Commission Tribunal. Pursuant to Article 212BB, the that Tribunal has shall have the power to review any decision of the Commission and the decisions of the Tribunal are subject to an appeal to the Court of Appeal.
NOTE FROM THE SECRETARIAT # 17:
Jamaica proposes to amend the previous paragraph as indicated for the reasons stated on page 5 of the Comments Document submitted by Jamaica.
The Co-Operative Republic of Guyana agrees with Jamaica’s amendments and makes the following observation regarding the previous paragraph:
“The Public Procurement Commission (PPC) is enshrined in the Constitution vice an amendment of 2003 and in statute by the Public Procurement Act 2003 and Regulations. The mandate for the nominations for appointment to the Public Procurement Commission has been given to the Parliamentary Standing Committee on Public Accounts (PAC) which is chaired by the Opposition. The process of selection commenced in the 8th Parliament (2003-2006) and was unsuccessful in reaching agreement. This has recommenced in the 9th Parliament (Jan 2007 to date).”
“The PAC has been given 90 days with effect from March 12, 2008 to conclude the process of selection and nomination of members to the PPC by a National Stakeholders Forum involving all parliamentary political parties and civil society convened by the President.”
“The National Procurement and Tender Administration Board continues to operate in the interim in accordance with the legislative mandate that it has been given, and in accordance with the highest standards of transparency and accountability.”
- Statutory and other legal provisions applicable to all procuring entities, such as those contained in the Procurement Act 2003[?] and its Regulations,[?] which regulate the procurement of goods, services and the execution of works, in order to promote competition among suppliers and contractors and to promote fairness and transparency in the procurement process. Article 3(2) of the Procurement Act 2003 establishes that procurement involving national defense or security is excluded from the application of the Act.[?] The following provisions are of particular significance:
▪ Articles 25, 26 and 27 of the Procurement Act 2003, which, respectively, establish the following methods of procurement of goods, constructions and services: a) Open (or Public) Tendering; b) Restricted Tendering; [?] and, c) Request for Quotations.[?] In addition, Articles 28 and 29, respectively, exempt the methods of Single Source Procurement and Procurement through Community Participation from tender procedures.[?] Alternatively, Articles 44 to 51 provide specific regulations for the procurement for consulting services.
▪ Article 25(1) of the Procurement Act 2003, which stipulates that public tendering is mandatory. Nonetheless, Article 5(2) provides that a procuring entity may decide to use another method of procurement in accordance with the requirements of Articles 26 to 29, in which case the procuring entity shall record a statement of the grounds and circumstances upon which it relied to justify the use of that particular method of procurement, in the record of the procurement proceedings established by Article 10 of the Act.
▪ Article 24(1), which provides that public corporations and other bodies in which the controlling interest is vested in the State may, subject to the approval of the National Procurement and Tender Administration Board, conduct procurement according to their own rules or regulations, except that to the extent that such rules and regulations conflict with the Procurement Act (or its Regulations), the latter shall prevail. Article 24(2) further stipulates that if funds are received from the Treasury for a specific procurement, then the corporation is obliged to follow the rules contained in the Procurement Act and the Regulations.
▪ Article 14 of the Procurement Act 2003, which prohibits a procuring entity from splitting or causing to split contracts or divide or cause to divide its procurement into separate contracts where the sole purpose for doing so is to avoid the application of any provision of the Procurement Act 2003 or its Regulations.
▪ Article 16 of the Procurement Act 2003, which establishes the National Procurement and Tender Administration Board (hereinafter “National Board”) as an agency responsible for the administration of procurement and tenders the value of which exceeds such an amount prescribed by the regulations. Pursuant to Article 16(1), the National Board reports to the Minister of Finance. Additionally, Article 17(1) sets out its ordinary functions[?] while Article 17(2) sets out its extraordinary functions, pending the establishment of the Public Procurement Commission.[?]
▪ Article 19 of the Procurement Act 2003, which provides that the National Board shall create within each administrative region a Regional Tender Board (hereinafter “Regional Board”), with jurisdiction over procurement by the relevant regional administration, the value of which is less than such an amount prescribed by regulations. The functions of the Regional Boards are set forth in Article 20.[?] In addition, Article 21 empowers the National Board, at its discretion, to create District Tender Boards for procurement by Neighborhood Democratic Councils.
▪ Article 22 of the Procurement Act 2003, which provides that each Ministry, Department or Agency that engages in procurement, the value of which is less than such an amount prescribed by regulations, shall create a Tender Board with jurisdiction over procurement by the relevant Ministry, Department or Agency. Article 23 sets out the functions of these Tender Boards.[?]
▪ Article 4(1) of the Regulations to the Procurement Act 2003, which provides for the creation of an Internet Website[?] for the purpose of publicizing contract awards and to otherwise disseminate information about public procurement. Article 4(2) and (3) further provides that within five days of dispatching notice concerning the award of any contract exceeding G.$200,000 in value, the procuring entity shall provide a report[?] to the Administration. This report shall be published on the Website within two days of its receipt. Pursuant to Article 4(4), the information contained on the Website shall be freely available to the general public.
▪ Articles 6(1)(a) and 30, which stipulate, respectively, that the invitations to prequalify or the invitation to tender must be published in newspapers of wide circulation and posted in public places. Article 30 (1) further stipulates that the invitation to tender or to prequalify, as applicable, shall contain a brief description of the goods or construction to be procured and shall state the deadline for submission and where the solicitation documents and additional information regarding the tender may be obtained.
▪ Article 39 of the Procurement Act 2003, which establishes the rules regarding the examination and evaluation of tenders. Pursuant to Article 39(6)(a), all evaluation criteria for the procurement of goods, works or services in addition to price, will be quantified in monetary terms and the tender will be awarded to the lowest evaluated tender.
▪ Article 5 of the Procurement Act 2003, which sets out the qualification requirements for suppliers or contractors who want to participate in procurement proceedings. Among the requirements is that the supplier or contractor (including its directors or officers), must not have been convicted of any criminal offence related to its professional conduct or the making of false statements or misrepresentations as to its qualifications to enter into a procurement contract within a period of ten years preceding the commencement of the procurement proceedings, nor have been otherwise disqualified pursuant to administrative suspension or debarment proceedings in any jurisdiction over the last three years.
▪ Article 12 of the Procurement Act 2003, which prohibits those suppliers or contractors that submit offers in a tender process from giving or agreeing to give, to any current or former officer or employer of the procuring entity or other government authority, directly or indirectly, including through a family member, a gratuity in any form, an offer of employment, or any other thing or service of value, as an inducement with respect to an act or decision of, or procedure followed by, such appropriate board in connection with the procurement proceedings. Article 12 further stipulates that, in those cases, the appropriate board shall reject a tender or proposal and that such rejection and the reasons therefor shall be recorded in the record of the procurement proceedings and promptly communicated to the supplier or contractor.
▪ Articles 6(4) and 48(1) of the Procurement Act 2003, which, respectively, permit suppliers or contractors to submit queries for the clarification of the prequalification documents or of the request for proposals, within a reasonable time. These Articles also provide, respectively, that responses to said queries shall be given within a reasonable time and that, without identifying the source of the query, they have to be communicated to all suppliers or contractors to which the procuring entity provided prequalification documents or the request for proposals, as applicable.
▪ Articles 52 to 54 of the Procurement Act 2003 (Articles 10 to 15 of the Regulations), which regulate proceedings for administrative review of the procurement process. These provisions allow suppliers or contractors who have suffered or who may suffer loss or damage due to a breach of a duty imposed on a procuring entity by the Act, to formulate complaints for consideration by the procuring entity. The procuring entity shall issue, within five working days of receipt of the complaint, a written decision to the complainant, stating the reasons for the rejection of the complaint or advising on the corrective action that has been taken. In that connection, Article 11(2) of the Regulations provides that if the complainant is not satisfied with the decision of the procuring entity, or if the procuring entity fails to issue the decision within the five-day period, he/she may seek review by the Bid Protest Committee,[?] within three working days. The Bid Protest Committee has twenty working days to reach an award decision, which is not open to administrative review. Finally, Article 14 of the Regulations establishes the conditions for the suspension of procurement proceedings.
NOTE FROM THE SECRETARIAT # 18:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“It is unfortunate that the Committee was not advised of the existence of the website of the Audit Office of Guyana, where the 2006 Audit Procedures Manual 2006 is posted. The Code of Ethics and Auditing Standards of the International Organization of Supreme Audit Institutions (INTO SAI) are used by the Guyana Audit Office and act as a guideline where Guyana’s guidelines may be silent, ambiguous or non-existent.”
“Furthermore the legislative framework regarding tendering, reporting by agencies and statutory bodies are governed not only by the Procurement Act but also by additional pieces of legislation such as the Companies Act 1991, the Fiscal Management and Accountability Act 2003 and the Audit Act 2004, none of which are referred to in the preliminary report.”
In response to the Co-Operative Republic of Guyana, the Secretariat would like to inform that, pursuant to Section V (A) and (C) of the Methodology for the First Round of Review, the abovementioned legislation should have been analyzed during the First Round of Review [Section 1.2 (Standards of Conduct and Mechanisms to Ensure the Proper Conservation and Use of Resources Entrusted to Government Officials) and Section 3 (Oversight Bodies for the Selected Provisions – Article III, Paragraphs 1, 2, 4, and 11 of the Convention)].
2. Adequacy of the legal framework and/or other measures
With respect to the legal provisions governing public procurement systems that the Committee has examined, based on the information available to it, they constitute a set of measures relevant to promoting the purposes of the Convention.
Nonetheless, the Committee deems it appropriate to express some comments for the country under review to consider in supplementing, developing or adapting the legal framework and the government procurement measures now in force, in light of the following:
• First, as regards control mechanisms, the Committee notes an absence of provisions establishing sanctions for government servants and employees who fail to fulfill or infringe upon the provisions that govern the government procurement system. In this regard, the Committee will formulate a recommendation. (See Recommendation 1.2(a) in Section 1 of Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 19:
Jamaica makes the following observation regarding the previous paragraph:
“Section 8 of the Finance Administration and Audit Act (FAAA) provides for the imposition of a surcharge where an officer is or was responsible for any improper payment of public moneys or for any payment of such moneys which is not duly vouched. While this provision may not provide sufficient sanctions it may not be accurate to state that there is an absence of provisions. It may be better to note the provisions in the FAAA and state that these are not sufficient in relation to the various procurement provisions.”
The Co-Operative Republic of Guyana agrees with Jamaica’s observation.
In response to Jamaica, the Secretariat wishes to clarify that the “Financial Administration and Audit” Acts were analyzed in Section 1.2 of the First Round of Review regarding “Standards of Conduct and Mechanisms to Ensure the Proper Conservation and Use of Resources Entrusted to Government Officials”. In this section, the Secretariat notes that the Committee has specifically analyzed whether or not there are provisions establishing sanctions to those who violate the procurement rules. The Secretariat further notes that the same situation was found in previous country reports in this round of review (such as The Bahamas). In compliance with the criterion of equal treatment of the Methodology for the Second Round of Review, the same language was used. SEE Notes from the Secretariat #2 and #18.
SEE Note from the Secretariat #46 (Recommendation).
• Second, the Committee observes that Article 17(2) of the Procurement Act 2003 temporally assigns certain functions of the Public Procurement Commission to the National Board, while the former is not established. The Committee notes, however, that the National Board does not possess the same level of independence constitutionally provided for the Public Procurement Commission in order to carry out those functions. In this regard, the Committee will formulate a recommendation. (See Recommendation 1.2(b) in Section 1 of Chapter III of this Report).
• Third, the Committee observes that there are no provisions within the legislative regime in place regarding the existence of a is no public registry of providers. Therefore, the Committee urges the Co-Operative Republic of Guyana to consider establishing a national public registry of providers using, for example, computer technology to set it up, update it, and consult it. This registry could contain data on contractors’ record of performance or non-performance; area of work and/or specialty; technical and economic capacity; type of firm; and other information considered relevant. This registry should be compulsory for All State bodies and dependencies should be required to use the Registry, its purpose being to foster the principles of openness, equity and efficiency provided for in the Convention. The Committee also suggests that the country under review consider granting an agency the authority to exclude It would also be useful to allow for the exclusion and/or sanctioning of any contractor, for a certain period of time, from the proposed registry, as circumstances may warrant. There could, for example, be provisions outlining the reasons for an intended exclusion or sanction. This agency should also maintain a list of sanctioned contractors. A list of excluded and/or sanctioned contractors and information regarding reasons for the exclusion and/or sanctioning could be contained in the Registry. In this regard, the Committee will formulate recommendations. (See Recommendations 1.2(c) and (d) in Section 1 of Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 20:
Jamaica proposes to amend the previous paragraph as indicated for the reasons stated on pages 8 and 9 of the Comments Document submitted by Jamaica.
The Co-Operative Republic of Guyana agrees with Jamaica’s comments and proposed amendments and makes the following observation regarding the previous paragraph:
“The SP also acknowledges that this proposal is one under consideration and is in keeping with the SP’s interventions for modernization of the state sector.”
The Secretariat notes that similar language was used in other country reports in this round of review.
SEE Notes from the Secretariat #48 and #49 (Recommendation).
• Fourth, the Committee notes that the legislation in place does not provide for mechanisms to deal with conflicts of interest and/or the ineligibility of those bidders or contractors who have ties to the procuring entity or who are directly involved in the determination of needs or specifications, appraisal of bids, selection of alternatives, or approval of purchases or payments; as well as their respective spouses or partners. In this regard, the Committee will formulate a recommendation. (See Recommendation 1.2(e) in Section 1 of Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 21:
Jamaica proposes to amend the previous paragraph as indicated for the reasons stated on page 9 of the Comments Document submitted by Jamaica.
The Co-Operative Republic of Guyana agrees with Jamaica’s comments and proposed amendments and makes the following observation regarding the previous paragraph:
“It should be noted the population of Guyana is only 750,000 with a relatively small group of contractors/providers of services.”
“However, administrative measures of persons recusing themselves from the selection process where a conflict of interest presents itself and reinforced by the ruling party’s Code of Conduct for its elected officials helps to make this issue an unacceptable norm of the government system.”
SEE Note from the Secretariat #50 (Recommendation).
• Fifth, the Committee observes that there are no provisions measures in place within the legislative regime that require prior planning sufficiently in advance of the launch of procurement process, such as preparing studies, designs and technical evaluations, or assessing the appropriateness and timeliness of the purchase. The Committee believes that adopting measures that require prior planning would assure the openness, equity and efficiency of the system in place for the procurement of goods and services. In this regard, the Committee will formulate a recommendation. (See Recommendation 1.2(f) in Section 1 of Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 22:
Jamaica proposes to amend the previous paragraph as indicated for the reasons stated on page 9 of the Comments Document submitted by Jamaica.
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“Firstly, the assumption that there are no studies, design and technical evaluations etc prior to a tendering process is fallacious. All infrastructural works must have an engineer’s specifications and estimates which pre-supposes a technical study; more so with donor supported projects pre-feasibility studies, technical designs and evaluations are a prerequisite. Depending on the sums of money involved Ministerial or agency or regional tender boards are given specific sums which they can manage and which in the norm fall below $900,000 g (equivalent to $4500 USD) and for Regions are up to $6,000,000 (equivalent of $ 30000USD). In the former, three estimates must be provided before a selection is given.”
“Furthermore, the process for the release of allocated/budgeted funds is enshrined in legislation (Fiscal Management and Accountability Act 2003) and requires programme budgeting based on a programme of activities with time lines/schedules etc being presented by each agency, ministry, region at the end of each year for the coming year. This is reviewed every two months by the Ministry of Finance with the respective agencies etc to ensure that the agencies are on track as projected.”
“In addition as Jamaica observed these measures/provisions are in place through administrative measures.”
The Secretariat wishes to clarify that upon review of the information available to it, the Secretariat did not find any provision in the Procurement Act which requires prior planning sufficiently in advance of the launch of procurement process. The same situation was found in many previous country reports in this round of review, including Trinidad and Tobago and The Bahamas. SEE Note from the Secretariat #2.
SEE Note from the Secretariat #51 (Recommendation).
• Sixth, the Committee observes that neither the Procurement Act 2003 nor the Regulations prescribe minimum time limits for the publication of tendering opportunities. In this regard, the Committee will formulate a recommendation. (See Recommendation 1.2(g) in Section 1 of Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 23:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“This is an assumption, depending on the nature of the tender, the quantum of the funds to be expended and the planned or urgency of the task (sea defence or drainage unplanned for or expedited due to risk to safety or response to a disaster), time is allocated and publicly declared.”
Once again, the Secretariat wishes to clarify that there is no fallacy or assumption in the paragraph question. Upon review of the information available to it, more importantly the Procurement Act 2003, it did not find any provision which specifically establishes deadlines to the publications of tendering opportunities.
SEE Note from the Secretariat #52 (Recommendation).
• Seventh, the Committee notes that access to tender notices and contracts awarded is available via the link on the website of the National Board. However, it appears that the information regarding contracts awarded has not been updated since August 2007 is not updated on a regular basis. The Committee believes that the Co-Operative Republic of Guyana could consider further enhancing the use of electronic means to provide information regarding procurement, including the status of bids and awards and the progress of major projects would be beneficial. The Co-Operative Republic of Guyana may also wish to consider using Use of an electronic procurement system or electronic bidding in order to carry out the contracting needs of the State would be advantageous. In this regard, the Committee will formulate recommendations. (See Recommendations 1.2(h) and 1.2(i) in Section 1 of Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 24:
Jamaica proposes to amend the previous paragraph as indicated for the reasons stated on page 9 of the Comments Document submitted by Jamaica.
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“There is some uncertainty as to when this report was drafted as a check of the NPTA website as of Friday May 2, 2008 shows that the Minutes of the Board dated April 8, 2008 are posted and tender awards as of March 31st, 2008 are also posted. The awards of tenders are also archived so they can be accessed by the viewer.”
“In addition, the Committee should take note of the fact that access to telecommunications does not reach the entire or majority of the country and whilst the website allows for better transparency only a limited percentage of the population has access to the internet/computers. Therefore an electronic bidding or procurement system would in fact be discriminatory and premature at this stage to many small to medium businesses especially those removed from the capital.”
“The Committee may wish to take note that every week there is a press conference to which the contracts that have received a “No Objection” from the Cabinet (in keeping with the Procurement Act) are announced; the regional administrations and the Ministry of Finance also announce by press notification of the awards of the tenders via the newspaper and radio/television as needs be.”
SEE Note from the Secretariat #53 (Recommendation).
• Eighth, with respect to the criteria to be used in the evaluation of bids, including those of public works, the Committee takes note of the absence of such norms in the legislative regime. There appears to be no evaluation guidelines that provide objective selection factors or criteria. The only criteria is found in Article 39 (6)(a) of the Procurement Act, which states that all evaluation criteria for the procurement of goods, works or services in addition to price, will be quantified in monetary terms and the tender will be awarded to the lowest evaluated tender. The Committee further notes that the legislation does not expressly regulate the power to award contracts nor does it require that the outcome of a bid evaluation be substantiated clearly and accurately, especially when the procuring entity does not agree with the Evaluation Committee’s determination of the lowest evaluated bidder [Article 39(3)]. Given the above circumstances, the Committee believes that this does not provide the necessary guarantees that decisions are made that are not discretionary, arbitrary and subjective. Therefore, to preserve to ensure impartiality, transparency and equality of opportunity,. The Committee believes that the Co-Operative Republic of Guyana should consider adopting adoption of objective criteria for the evaluation of bids that are reflected in legislation or formulated in an administrative document would assist in providing those guarantees. In this regard, the Committee will formulate recommendations. (See Recommendations 1.2(j) and (k) in Section 1 of Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 25:
Jamaica proposes to amend the previous paragraph as indicated for the reasons stated on page 10 of the Comments Document submitted by Jamaica.
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“Again this is an assumption.”
“Standard bidding documents are administratively in use .They outline the evaluation procedures to be used by the specific evaluation committee in evaluating specific tenders.”
“The evaluation process for foreign funded tenders are based on their pre-established criteria and requirements in some cases pre-qualification of bids with set methodology of assigning points for technical, financial and skills. Once evaluation by the Evaluation Committee for that bid is completed, the bid is submitted to the NPTA Board and when it is completed it also has to receive the ‘No Objection” by the donor agency prior to its submission to the Cabinet for its “No Objection”.”
“It should also be noted that if there is dissatisfaction by a bidding entity, a challenge can be made to the donor agency and this would lead to a whole re-evaluation of the process by both the donor and the NPTA. Alternatively the bid can be annulled and a new tender is advertised.”
“It should also be noted that each bid has a different evaluation committee appointed by the NPTAB from among the list of NPTAB previously approved evaluators and selected from the public service with the technical competence. This is to reduce any knowledge prior to a tender being advertised and evaluated as to who the members of the evaluation committee may be.”
SEE Note from the Secretariat #54 (Recommendation).
• Ninth, the Committee has no information regarding provisions that allow for the establishment of citizen overseers or watchdogs to monitor the execution of contracts where their nature, importance or magnitude so warrants, in particular public works contracts. In this regard, the Committee will formulate a recommendation. (See Recommendation 1.2(l) in Section 1 of Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 26:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“The comment earlier illustrates that there are overseer or watchdog mechanisms, as well as the Audit Office, the Parliamentary Standing Committee on the Public Accounts, the Parliamentary Sectoral Committees , the Ethnic relations Commission, the use of Questions to Ministers through Notice of not, oral or written in the National Assembly to raise these issues.”
“Furthermore, the frequency and visibility of elected officials, in particular Ministers of the Government, with the public in outreaches to the communities allows for the citizens to raise their concerns, questions re contracts, awards of tenders and the quality of work and value for money. These forum our population vigorously utilize.”
SEE Note from the Secretariat #55 (Recommendation).
• Finally, the Committee notes a discrepancy between the procedural rules and time frames in the administrative review system established by the Procurement Act 2003 and the Regulations. The Committee believes that this discrepancy makes it confusing for bidders to make an effective protest against a bid outcome and therefore recommends the harmonization of such rules. (See Recommendation 1.2(m) in Section 1 of Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 27:
Jamaica makes the following observation regarding the previous paragraph:
“What is the discrepancy?”
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“We do not understand what discrepancy the Committee is referring to. Could the Committee elaborate more on this point so that the SP could address its concern?”
The Secretariat wishes to clarify that the discrepancy indicated in the paragraph in question refers to Article 52(1) of the Procurement Act, vis-à-vis Article 10(1) of its Regulations [legitimacy to complain]; Article 52(3) of the Procurement Act vis-à-vis Article 10(6) of its Regulations [different deadlines]; and Article 53(5) of the Procurement vis-à-vis Article 13(8) of its Regulations (as amended by Article 2 of the Regulations Amendment) [different deadlines].
3. Results of the legal framework and/or other measures
With respect to results, the Committee notes that the Co-Operative Republic of Guyana provided the following information regarding the number of contracts awarded in 2006:[?]
“There has been outstanding results obtained in the number of contracts awarded through public tender in Guyana in the year 2006, for example, in the area of Agriculture there have been six (6) public tender contracts awarded; Tourism one (1) public tender contract awarded; Health six (6) public tender contracts have been awarded; Guyana water incorporated two (2) public tender contracts have been awarded; Housing and Water thirty two (32) public tender contracts have been awarded; Linden Economic Advancement Program two (2) public tender contracts have been awarded; Local Government five (5) public tender contracts have been awarded; Ministry of Finance one (1) public tender contract awarded; Office of the Prime Minister one (1) public tender contract awarded; Public Works and Communication twenty one (21) public tender contracts have been awarded; Tourism one (1) public tender contract awarded”
“There is no available data on any sanctions which may have been imposed on contractors, however for further detailed information on the award of public tenders in Guyana, information is provided on the web site of the National Tender Board in Guyana, see .”
It would be useful for the Co-Operative Republic of Guyana to have contract statistics that reflect the nature of contracts awarded, the proportions that are by public tender and those that are by the other procurement methods such as restricted tendering, request for quotations, single source procurement and procurement through community participation. In this regard, the Committee will formulate a recommendation (see Recommendation 1.2(n) in Section 1 of Chapter III of this report).
NOTE FROM THE SECRETARIAT # 28:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“The SP regrets and apologises for the lack of information of and in some cases inaccurate as above information provided to the Committee. The SP commits to improve the provision of such information which is available and accessible as requested.”
SEE Note from the Secretariat #56 (Recommendation).
Considering that the Committee does not have additional information other than that referred to above that might enable it to make a comprehensive evaluation of the results of this topic, it will formulate a recommendation to the National Board in this regard. (See Recommendation 4.2 in Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 29:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“The website of the NPTA as of 2008 April 14th provides additional information on awards of tenders as of March 31st 2008, the listing of tenders awarded by sector handled by the NPTA. The Standard Bidding Documents can be found also for three categories—consultancies, goods and services and infrastructural works.”
2. SYSTEMS FOR PROTECTING PUBLIC SERVANTS AND PRIVATE CITIZENS WHO, IN GOOD FAITH, REPORT ACTS OF CORRUPTION (ARTICLE III (8) OF THE CONVENTION)
2. Existence of provisions in the legal framework and/or other measures
Regarding the existence of systems for protecting public servants and private citizens who, in good faith, report acts of corruption, in its response the Co-Operative Republic of Guyana indicates [?] that:
“They (sic) are no measures and/or laws establishing systems for protecting public servants and private citizens who, in good faith report acts of corruption, including protection of their identities.”
Nevertheless, the Co-Operative Republic of Guyana also indicates that Section 28 of the Integrity Commission Act #20 of 1997 makes provision for members of the public to lodge written complaints with the Integrity Commission for breach of any provision of the code of conduct established under the Schedule II of the Act.[?]
NOTE FROM THE SECRETARIAT # 30:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“Guyana has agreed to draft legislation to protect whistle blowers and the CARICOM Heads of State and Security Ministers have also recently agreed to draft witness protection legislation. Whilst there is none at the time, it would not be accurate to say that there are no measures and/or laws protecting public servants and private citizens as the very next section of this report refers to the Criminal Law Offenses Act, and earlier in the said report referred to the Audit Act , and the FMAA.”
“In addition, public servants and citizens can also make/lay complaints/charges or share information of corruption to the Integrity Commission, the Ethnic Relations Commission ( where possible ethnic discrimination), the Public Service Commission, the Police Complaints Authority, the Office of Professional Responsibility of the Guyana Police Force, weekly public days of Ministers, geographic or national Members of Parliament, petition the Public Accounts Committee or a sectoral committee of Parliament. Sensitivity is generally exercised with non-disclosure of sources of information.”
“Public servants whilst not required to, they are however, expected to expose irregular practices, abuse of procedures and corruption and their recourse can be administratively handled through a number of internal and non-disclosure mechanisms to protect their identity.”
“The most effective and successful tool in Guyana has been the use of the press, letters to the editors, public call-in programmes on radio/television to expose any perceived or real corruption. This method though not formal has successfully led to exposures on a number of occasions, leading to investigations and persons being brought before the courts.”
2. Adequacy of the legal framework and/or other measures.
Taking into account the previous section, it is not appropriate to make observations in this regard as there is no formal legislative regime in place for the protection of public servants and private citizens who, in good faith, report acts of corruption. Though citizens can report acts of corruption to the Integrity Commission, the mechanism in place is inadequate for promoting the purposes of the Convention. As such, the Committee will formulate the recommendations that it deems advisable for the Co-Operative Republic of Guyana to consider, in accordance with Article III(8) of the Convention. (See recommendation 2 in Section 2 of Chapter III of this Report).
3. Results of the legal framework and/or other measures
Considering that the Committee does not have additional information other than that referred to above that might enable it to make a comprehensive evaluation of the results of this topic, it will make a recommendation in this regard. (See Recommendation 4.2 in Chapter III of this Report)
3. ACTS OF CORRUPTION (ARTICLE VI OF THE CONVENTION)
3 Existence of provisions in the legal framework and/or other measures
The Co-Operative Republic of Guyana has a set of provisions related to the criminalization of the acts of corruption provided for in Article VI(1) of the Convention, among which the following should be noted:
a. With regard to paragraph (a) of Article VI(1):
- Section 338 (2) (a) of the Criminal Law Offences Act Cap 8:01, which provides: “If any person being an agent, corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person,[?] any gift or consideration as an inducement or reward for doing or forbearing to do, or for having after the enactment of this section done or forborne to do, any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business; he shall be guilty of a misdemeanour and liable on conviction on indictment to a fine of six thousand dollars and to imprisonment for two years, or, where the matter or transaction in relation to which the offence was committed was a contract with the State, or any government department or public body, or sub-contract to execute any work comprised in such a contract, to imprisonment for seven years.”
The Act defines ‘agent’ as “any person employed by or acting for another and includes a person serving under the State or under any corporation, municipal council, council of a local government district, established under the Municipal and District Councils Act, board of guardians, or any local authority under the Local Government Act”. It also defines ‘principal’ to include “an employer”. Additionally, “consideration” is defined as “valuable consideration of any kind”.
- Section 338 (3) of the Criminal Law Offences Act Cap 8:01, which provides: “Where in any proceedings under this section it is proved that any money, gift, or other consideration, has been paid or given to or received by a person in the employment of the state or any government department or public body, the money, gift or consideration shall be deemed to have been paid or given and received corruptly as the inducement or reward mentioned in this section unless the contrary is proved.”
b. With regard to paragraph (b) of Article VI(1):
- Section 338 (2) (b) of the Criminal Law Offences Act Cap 8:01, which provides: “If any person corruptly gives or agrees to give or offers any gift or consideration to any agent as an inducement or reward for doing or for forbearing to do, or for having after the enactment of this section done or forborne to do, any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business; he shall be guilty of a misdemeanour and liable on conviction on indictment to a fine of six thousand dollars and to imprisonment for two years, or, where the matter or transaction in relation to which the offence was committed was a contract with the State, or any government department or public body, or sub-contract to execute any work comprised in such a contract, to imprisonment for seven years.”
- Section 338 (3) of the Criminal Law Offences Act Cap 8:01, which provides: “Where in any proceedings under this section it is proved that any money, gift, or other consideration, has been paid or given to or received by a person in the employment of the state or any government department or public body, the money, gift or consideration shall be deemed to have been paid or given and received corruptly as the inducement or reward mentioned in this section unless the contrary is proved.”
c. With regard to paragraph (c) of Article VI(1):
- Section 334 of the Criminal Law Offences Act Cap 8:01, which provides: “Everyone who, being or expecting to be a public servant,[?] accepts, or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever, whether pecuniary or otherwise, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act, or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person with the legislative or executive government of Guyana or with any public servant as a public servant, shall be guilty of a misdemeanour and liable to imprisonment for three years.”
- Section 335 of the Criminal Law Offences Act Cap 8:01, which provides: “Everyone who accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification whatever, whether pecuniary or otherwise, as a motive or reward for inducing, by corrupt or illegal means, any public servant to do or to forbear to do any official act, or, in the exercise of his official functions, to show favour or disfavour to any person or to render any service or disservice to any person with the National Assembly, or the executive government of Guyana, or with any public servant, as a public servant, shall be guilty of a misdemeanour and liable to imprisonment for three years.”
d. With respect to paragraph (d) of Article VI(1):
- Section 3 of the Money Laundering (Prevention) Act, which provides: “A person who engages in money laundering[?] is guilty of an offence.”
- Section 4 of the Money Laundering (Prevention) Act, which provides: “Where an offence under the provisions of section 3 is committed by a body of persons, whether corporate or unincorporated, every person who, at the time of the commission of the offence, acted in an official capacity for or on behalf of such body of persons, whether as director, manager, secretary or other similar officer, or was purporting to act in such capacity, is guilty of that offence, unless he adduces evidence to show that the offence was committed without his knowledge, consent or connivance and that he exercised all due diligence to prevent the commission of the offence.”
- Section 6 of the Money Laundering (Prevention) Act, which provides: “A person guilty of an offence under the provision of section 3,4,or 5 is liable on conviction to a fine of not less than two hundred thousand dollars or more than one million dollars, and to imprisonment for a term of seven years.”
NOTE FROM THE SECRETARIAT # 31:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“The Committee may be interested to note that a new Anti-Money Laundering and Counter-Financing of Terrorism Bill to replace the Money Laundering (Prevention) Act was tabled by the government in the National Assembly in May 2007 which was sent to a Parliamentary Special Select Committee for review. The Committee has not completed its work.”
e. With respect to paragraph (e) of Article VI(1):
- Section 24 of the Criminal Law Offences Act Cap 8:01, which provides: “Everyone who becomes an accessory before the fact to any felony, whether it is a felony at common law or by virtue of any written law for the time being in force, may be indicted, tried, convicted, and punished in all respects as if he were a principal felon.”
- Section 25 of the Criminal Law Offences Act Cap 8:01, which provides: “Everyone who counsels, procures, or commands any other person to commit any felony, whether it is a felony at common law or by virtue of any written law for the time being in force, shall be guilty of felony, and may be indicted and convicted, either as an accessory before the fact to the principal felony together with the principal felon, or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon has or has not been previously convicted, or is or is not amenable to justice, and may thereupon be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished.”
- Section 26 of the Criminal Law Offences Act Cap 8:01, which provides: “Everyone who becomes an accessory after the fact to any felony, whether it is a felony at common law or by virtue of any written law for the time being in force, may be indicted and convicted, either as an accessory after the fact to the principal felony together with the principal felon or after the conviction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon has or has not been previously convicted, or is or is not amenable to justice, and may thereupon be punished in the same manner as any accessory after the fact to the same felony, if convicted as an accessory, may be punished.”
- Section 27 of the Criminal Law Offences Act Cap 8:01, which provides: “Every accessory after the fact to any felony (except where it is otherwise expressly enacted), whether the same is a felony at common law or by virtue of any written law for the time being in force, shall be liable to imprisonment for two years.”
- Section 28 of the Criminal Law Offences Act Cap 8:01, which provides: “Any number of accessories at different times to any felony, and any number of receivers at different times of property stolen at one time, may be charged with substantive felonies in the same indictment and may be tried together, notwithstanding that the principal felon is not included in the same indictment or is or is not in custody or amenable to justice.”
- Section 29 of the Criminal Law Offences Act Cap 8:01, which provides: “Where anyone becomes, within the Admiralty jurisdiction of the Court, an accessory to any felony cognizable by the Court, whether it is a felony at common law or by virtue of any written law for the time being in force, and whether the felony is committed within that jurisdiction or elsewhere, or is begun within that jurisdiction and completed elsewhere, or is begun elsewhere and completed within that jurisdiction, the offence of that person shall be felony, and in any indictment relating to the offence the venue in the margin shall be the same as if the offence had been committed in the county of Guyana in which it is tried, and it shall be averred to have been committed on the high seas:”
“Provided that nothing herein contained shall alter or affect any of the laws relating to the government of the Guyana Defence Force.”
NOTE FROM THE SECRETARIAT # 32:
Jamaica makes the following observation regarding the previous seven paragraphs:
“These all refer to the commission of a felony but the actual offences listed above are characterized as misdemeanours. Could the Cooperative Republic of Guyana clarify whether the Money Laundering offence is classified as a felony?”
In response to Jamaica, the Co-Operative Republic of Guyana makes the following observation:
“With reference to Jamaica’s query, a Money Laundering offense is classified as a felony.”
In light of the above, the Secretariat suggests the inclusion of the following paragraph in Section 3.2 (adequacy of the legal framework and other measures), as well as the corresponding recommendation in Section 3 of Chapter 3:
• With respect to paragraph (e) of Article VI(1):
- The Committee observes that Sections 24, 25, 26, 27, 28 and 29 of the Criminal Law Offences Act, which penalizes individuals who act as accessories after the fact, refer to the commission of a felony. With the exception of the money laundering offences found in the Money Laundering (Prevention) Act, the corruption offences prescribed by Sections 338(a) and (b), 334 and 335 of the Criminal Law Offences Act are characterized as misdemeanors. Thus, the Committee notes an absence of provisions criminalizing accessories after the fact with respect to corruption offenses, as required by Article VI(1)(e) of the Convention. The Committee will formulate a recommendation in this regard. (See recommendation 3.X in Section 3 of Chapter III of this report).
Recommendation:
Criminalize those who act as accessories after the fact with respect to corruption offenses, as required by Article VI(1)(e) of the Convention. (See Section 3 of Chapter II of this report)
- Section 31 of the Criminal Law Offences Act Cap 8:01, which provides: “Everyone who aids, abets, counsels, or procures the commission of any misdemeanour, whether it is a misdemeanour at common law or by virtue of any written law for the time being in force, may be indicted, tried, convicted, and punished in all respects as a principal offender.”
- Section 33 of the Criminal Law Offences Act Cap 8:01, which provides: “Everyone who, wherever no express provision is made by this Act, or by any other written law for the time being in force, for the punishment thereof, conspires with any other person to commit any felony not punishable with imprisonment for seven years or more, or any misdemeanour, or to do anything in any part of the world which, if done in Guyana, would be a felony not punishable with imprisonment as aforesaid, or a misdemeanour, shall be guilty of a misdemeanour and shall be liable to imprisonment for three years.”
- Section 34 of the Criminal Law Offences Act Cap 8:01, which provides: “Everyone who, in any case where no express provision is made by this Act, or by any other written law for the time being in force, for the punishment thereof, conspires with any other person to commit any felony punishable with imprisonment for seven years or more, or to do anything in any part of the world which, if done in Guyana, would be a felony punishable with imprisonment as aforesaid, shall be guilty of felony and liable to imprisonment for seven years.”
SEE Note from the Secretariat #32.
- Section 35 of the Criminal Law Offences Act Cap 8:01, which provides: “Everyone who, in any case where no express provision is made by this Act, or by any other written law for the time being in force, for the punishment thereof, attempts to commit, or incites or attempts to incite any other person to commit, any felony not punishable with imprisonment for seven years or more, or any misdemeanour, under this Act shall be guilty of a misdemeanour and liable to imprisonment for one year.”
- Section 36 of the Criminal Law Offences Act Cap 8:01, which provides: “Everyone who, wherever no express provision is made by this Act, or by any other written law for the time being in force, for the punishment thereof, attempts to commit, or incites or attempts to incite any other person to commit, any felony punishable with imprisonment for seven years or more under this Act shall be guilty of a misdemeanour and liable to imprisonment for two years.”
SEE Note from the Secretariat #32
- Section 37 of the Criminal Law Offences Act Cap 8:01, which provides: “Everyone who, in any case where no express provision is made by any written law for the time being in force for the punishment thereof, attempts to commit, or incites or attempts to incite any other person to commit, any indictable offence at common law or under any written law, other than this Act, for the time being in force, shall be guilty of a misdemeanour and liable to imprisonment for two years.”
- Section 337 of the Criminal Law Offences Act Cap 8:01, which provides: “Every person who, being a public servant in respect of whom either of the offences defined in the last two preceding sections is committed, abets the offence, shall be guilty of misdemeanour and liable to imprisonment for three years.”
NOTE FROM THE SECRETARIAT # 33:
Jamaica makes the following observation regarding the previous paragraph:
“It would be helpful if a footnote/endnote were added to briefly set out the preceding sections. Use of the margin notes in the Act would be sufficient.”
Based on Jamaica’s proposal, the Secretariat suggest the addition of the following text as a footnote:
“Section 335 – Taking a gratification in order, by corrupt or illegal means, to influence a public servant”.
“Section 336 – Taking a gratification for the exercise of personal influence with a public servant”.
1. Adequacy of the legal framework and/or other measures.
With respect to provisions related to the criminalization of the acts of corruption provided for in Article VI(1) of the Convention that have been examined by the Committee, based on the information made available to it, they constitute, as a whole, a set of provisions relevant to promoting the purposes of the Convention.
Nonetheless, the Committee considers it appropriate to make certain observations regarding the advisability for the Co-Operative Republic of Guyana to consider complementing and implementing certain provisions in this area, taking into account the following:
• With respect to paragraph (a) of Article VI(1):
- The Committee believes that Section 338 (2) (a) of the Criminal Law Offences Act can be modified in order to better reflect the elements for this crime as set out in the Convention. While this provision does address the issue of when a public servant accepts a bribe, it is silent as to when this is carried out directly or indirectly. In addition, it does not contemplate the act of solicitation. The Committee also believes that the penalties may not be adequate. In this regard, the Committee will formulate a recommendation. (See Recommendation 3.1 in Section 3 of Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 34:
Jamaica proposes to amend the previous paragraph as indicated.
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“With reference to the sections previously quoted from the Criminal Law Offences Act, the penalties in some cases carry a fine and imprisonment, in other sections imprisonment and no fine is stipulated.”
The Secretariat notes that the Committee has decided in the past not to make any recommendations regarding the adjustment of criminal penalties.
SEE Note from the Secretariat #61 (Recommendation).
• With respect to paragraph (b) of Article VI(1):
- The Committee believes that Section 338 (2) (b) of the Criminal Law Offences Act can be modified in order to better reflect the elements for this crime as set out in the Convention. While these provisions do address the issue of when a person offers or gives a public servant a bribe, it is silent as to when this is carried out directly or indirectly. The Committee also believes that the penalties may not be adequate. In this regard, the Committee will formulate a recommendation. (See Recommendation 3.2 in Section 3 of Chapter III of this Report)
NOTE FROM THE SECRETARIAT # 35:
Jamaica proposes to amend the previous paragraph as indicated.
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“Sections 334, 335, 337 and 338 of the Criminal Law Offences Act appear to cover all these concerns of the Committee.”
SEE Note from the Secretariat #62
• With respect to paragraph (c) of Article VI(1):
- The Committee believes that Sections 334 and 335 of the Criminal Law Offences Act can be modified in order to provide greater penalties reflecting the serious nature of the offence. In this regard, the Committee will formulate a recommendation. (See Recommendation 3.3 in Section 3 of Chapter III of this Report)
NOTE FROM THE SECRETARIAT # 36:
Jamaica proposes the inclusion of the previous paragraph.
SEE Note from the Secretariat #63 (Recommendation).
2. Results of the legal framework and/or other measures
The Co-Operative Republic of Guyana in its Response states that “To date there have been no judicial proceedings undertaken in the last five years in relation to the above provisions.”[?]
The Committee expresses its concern with respect to the above information. However, considering that the Committee does not have additional information other than that referred to above, which might enable it to make a comprehensive evaluation, such as an indication that no reports of corruption have been received, or that the reports that were received did not result in criminal investigations or subsequent judicial proceedings,. As such, it will formulate a recommendation in this regard (See Recommendation 4.2 in Chapter III of this Report).
NOTE FROM THE SECRETARIAT # 37:
Jamaica proposes to amend the previous paragraph as indicated for the reasons stated on page 16 of the Comments Document submitted by Jamaica.
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“There have been in fact a number of cases that have been brought in the courts by the state in relation to various types of corruption from abuse, to bribery to loss of revenue through embezzlement or conspiracy to embezzle. For example, cases in relation to members of the Police Force for bribery and theft, cases in relation to Customs officers and businessmen such as fuel smuggling, and undervalued entry of goods through Customs, etc. The courts however take a rather extended period to complete these cases. In the interim, the public servants involved are interdicted and receive 2/3 of their salary.”
“In addition to those instances where legal action is taken against offenders, there have also been a number of widely publicized instances where administrative action is taken against persons involved in mismanagement of public assets or pubic funds.”
III. CONCLUSIONS AND RECOMMENDATIONS IN RELATION TO THE IMPLEMENTATION OF THE PROVISIONS SELECTED IN THE FRAMEWORK OF THE SECOND ROUND
Based on the review conducted in Chapter II of this Report, the Committee offers the following conclusions and recommendations regarding implementation by the Co-Operative Republic of Guyana of the provisions contained in Article III(5) (systems of government hiring and for the procurement of goods and services); Article III(8) (systems for protecting public servants and private citizens who, in good faith, report acts of corruption); and Article VI (acts of corruption) of the Convention, which were selected for review within the framework of the second round.
1. SYSTEMS OF GOVERNMENT HIRING AND PROCUREMENT OF GOODS AND SERVICES (ARTICLE III (5) OF THE CONVENTION)
1.1. Systems of Government Hiring
The Co-Operative Republic of Guyana has considered and adopted certain measures intended to establish, maintain and strengthen the systems of government hiring, as discussed in Section 1.1 of Chapter II of this Report.
In light of the comments made in the above-noted section, the Committee suggests that The Co-Operative Republic of Guyana consider the following recommendation:
- Establish, Maintain and strengthen the systems of government hiring of public servants, when applicable, that assure the openness, equity and efficiency of such systems.
NOTE FROM THE SECRETARIAT # 38:
Jamaica proposes to amend the previous paragraph as indicated for the reasons stated on page 17 of the Comments Document submitted by Jamaica.
The Co-Operative Republic of Guyana agrees with Jamaica’s proposed amendments.
In meeting this recommendation, The Co-Operative Republic of Guyana could take the following measures into account:
a) Adopt, through the appropriate legislative or administrative procedures, a legal instrument provisions that explicitly provides that government hiring into the Public Service is to be based on the principle of merit, providing clearly defined criteria on the manner to carry out examinations and interviews and set out criteria upon which the evaluation will be made. (See Section 1.1.2. of Chapter II of this report);
NOTE FROM THE SECRETARIAT # 39:
Jamaica proposes to amend the previous paragraph as indicated.
b) Assess the necessity of making examinations and interviews a mandatory requirement for all or some of the posts in the public service and establish mechanisms that provide clearly defined criteria on the manner in which these examinations and interviews would be carried out. (See Section 1.1.2. of Chapter II of this Report);
NOTE FROM THE SECRETARIAT # 40:
Jamaica proposes the inclusion of the previous paragraph.
The Secretariat notes that if this new recommendation is approved, a new paragraph should be added in section 1.1.2. to justify it.
c) Adopt, through the appropriate legislative or administrative procedures, a legal instrument provisions that provides set out clear parameters on the conditions for the use of temporary appointments, limiting their duration and requiring a written justification for their application. (See Section 1.1.2. of Chapter II of this Report);
NOTE FROM THE SECRETARIAT # 41:
Jamaica proposes to amend the previous paragraph as indicated.
d) Adopt, through the appropriate legislative and/or administrative procedures, mechanisms that provide clearly defined criteria for the advertisement of hiring opportunities for vacancies within the public service, ensuring that use is made of the mass media (e.g. newspapers or web pages). (See Section 1.1.2. of Chapter II of this report);
NOTE FROM THE SECRETARIAT # 42:
Jamaica proposes to amend the previous paragraph as indicated.
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraphs:
“No objection to Jamaica’s proposal of a new paragraph as a new (b) and consequential renumbering as well as its other amendments in the original (a),(b),(c) which speaks to provisions whether by legal instrument or administrative procedures.”
“Furthermore, the State Party is of the opinion that it has answered these concerns in the earlier Section I of the preliminary report.”
“The Committee may also be interested in knowing that not only are the vacancies advertised internally in the public service and in the mass media (mainly the newspapers) but the recently appointed Public Service Commission ( May 2007) now publishes in the newspapers the persons who have been appointed to posts in the Public Service in the Ministries/agencies and in the 10 regional administrations. A quick perusal of the Sunday Chronicle May 4, 2008 will illustrate an example of this new initiative.”
e) Adopt, through the appropriate legislative and administrative procedures, challenge mechanisms that provide clearly defined criteria for challenging the substantive aspects of the selection process, based on the principle of due process and natural justice and which can be pursued both through the administrative and judicial routes. (See Section 1.1.2. of Chapter II of this report);
NOTE FROM THE SECRETARIAT # 43:
Jamaica proposes to amend the previous paragraph as indicated.
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“This concern has been answered earlier in the preliminary report and therefore the State party is of the view that this is not necessary.”
f) Adopt, through the appropriate legislative and administrative procedures, a legal instrument provisions that regulates the hiring of judicial and legal officers, based on the principles of merit and equality, providing set out the criteria upon which the evaluation will be made and provide clearly defined criteria on the manner for carrying out examinations and the advertisement of posts. (See Section 1.1.2. of Chapter II of this report);
NOTE FROM THE SECRETARIAT # 44:
Jamaica proposes to amend the previous paragraph as indicated.
g) Adopt, through the appropriate legislative and administrative procedures, a legal instrument that regulates the hiring of public servants serving in the offices of the Auditor General, based on the principles of merit and equality, providing clearly defined criteria on the manner for carrying out examinations and the advertisement of posts. (See Section 1.1.2. of Chapter II of this report);
h) Adopt, through the appropriate legislative and administrative procedures, a legal instrument that regulates the hiring of public servants serving on the offices of the Solicitor General, based on the principles of merit and equality, providing clearly defined criteria on the manner for carrying out examinations and the advertisement of posts. (See Section 1.1.2. of Chapter II of this report);
NOTE FROM THE SECRETARIAT # 45:
Jamaica proposes to eliminate the previous paragraphs.
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraphs:
“With reference to the original (e),(f),(g) above, the State Party agrees with Jamaica’s comment to delete (f) and (g). The Appendix A may help in answering the concerns which resulted in the recommendations at (e) and (g) and therefore in the view of the SP these are not necessary.”
“In relation to (f) the Rules and Procedures Manual 2006 of the Audit Office and the oversight and scrutiny of the Parliamentary Standing Committee on the Public Accounts “general supervision “of the Audit Office provides appropriate legislative and administrative procedures on this issue. The requirement that the Minister of Finance by Standing Order must submit a Treasury Memorandum in response within 90 days of the submission of a report of the Public Accounts Committee to the National Assembly deepens the level of accountability and public information and knowledge.”
1.2. Government Systems for the Procurement of Goods and Services
The Co-Operative Republic of Guyana has considered and adopted certain measures intended to establish, maintain and strengthen the systems for government procurement of goods and services, as discussed in Section 1.2 of Chapter II of this Report.
In light of the comments made in the above-noted section, the Committee suggests that the Co-Operative Republic of Guyana consider the following recommendation:
- Promote the adoption of provisions, in the government systems for the procurement of goods and services, which ensure the principles of openness, equity and efficiency under the Convention. In meeting this recommendation, the Co-Operative Republic of Guyana could take the following measures into account:
a) Develop and implement provisions that punish public officials in cases of non-compliance with the laws and regulations that govern public procurement, without prejudice to any other responsibilities under the existing system. (See Section 1.2.2. of Chapter II of this Report).
NOTE FROM THE SECRETARIAT # 46:
Jamaica proposes to amend the previous paragraph as indicated for the reasons stated on page 18 of the Comments Document submitted by Jamaica.
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“The provisions in the Criminal Law Offences Act, the Audit Act and the Fiscal Management and Accountability Act set the legal framework for compliance by public servants and public officers.”
The Secretariat notes that the same language was used in other country reports in this round of review.
b) Establish the Public Procurement Commission or another independent body responsible for monitoring public procurements and procedures, in order to ensure that the procurement of goods and services and the execution of works are done in a fair, transparent, competitive and cost-effective manner. (See Section 1.2.2. of Chapter II of this Report).
NOTE FROM THE SECRETARIAT # 47:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“The SP has already stated that the Public Procurement Commission is before the Parliamentary Standing Committee on Public Accounts and is expected to complete its submission on nominations for appointment within 90 days.”
c) Establish a national registry of contractors of works, goods or services, mandatory to all State bodies and dependencies, ensuring that the registry also includes a list of sanctioned contractors, in order to foster the principles of openness, equity and efficiency provided for in the Convention. (See Section 1.2.2. of Chapter II of this Report).
NOTE FROM THE SECRETARIAT # 48:
Jamaica proposes to amend the previous paragraph as indicated.
The Secretariat notes that similar language was used in other country reports in this round of review.
d) Implement, through legislative or administrative means, a mechanism to facilitate the exclusion and/or sanction of certain contractors from the national registry for stipulated reasons. (See Section 1.2.2. of Chapter II of this Report).
NOTE FROM THE SECRETARIAT # 49:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“Whilst there is no national registry of sanctioned contractors, Section 5 (1)(i-v) of the Procurement Act sets out the criteria and qualifications of the suppliers and contractors and (vi) states “that its past performance substantiated by documentary evidence would commend it for serious consideration for the award of the contract” provides for the non-consideration or exclusion of a contractor that has failed to perform.”
e) Develop and implement provisions that govern conflicts of interest and/or establish the ineligibility of bidders or contractors who have ties to the procuring entity or who are directly involved in the determination of needs or specifications, appraisal of bids, selection of alternatives, or approval of purchases or payments; as well as their respective spouses or partners. (See Section 1.2.2. of Chapter II of this Report).
NOTE FROM THE SECRETARIAT # 50:
Jamaica proposes to amend the previous paragraph as indicated.
The Co-Operative Republic of Guyana agrees with Jamaica’s proposed amendments.
f) Implement provisions measures that require prior planning sufficiently in advance of the launch of procurement process, such as preparing studies, designs and technical evaluations, and to assess the appropriateness and timeliness of the purchase. (See Section 1.2.2. of Chapter II of this Report).
NOTE FROM THE SECRETARIAT # 51:
Jamaica proposes to amend the previous paragraph as indicated.
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“This is done as a norm/prerequisite especially with infrastructural works and large expenditures.”
The Secretariat notes that similar language was used in other country reports in this round of review.
g) Implement provisions that establish minimum time limits for the publication of tendering opportunities in appropriate media. (See Section 1.2.2. of Chapter II of this Report).
NOTE FROM THE SECRETARIAT # 52:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“Please see the Procurement Act 2003, Section 25(1) and Section 30 (1)( 2) in relation to public tendering . Administratively the time given for bids to be submitted is not shorter than 2 weeks, unless in a emergency/disaster such as 2005 Jan- February Flood which affected 300,000 people or the 2008 recent overtopping of the sea wall by exceptionally high springtides which caused extensive flooding affecting thousands.”
“It should also be noted that Section 11(1) states that the procuring entity “shall publish notice of procurement contract awards within 7 days of awarding such contracts,” thus enhancing transparency and openness. This is practiced.”
h) Strengthen and increase the scope of use of electronic forms of communications, such as the internet, for publicizing the tender opportunities, status of bids and awards and the progress in the execution of major projects. (See Section 1.2.2. of Chapter II of this Report)
i) Develop and implement electronic procurement systems, so that the acquisition of goods and services may be carried out through those means. (See Section 1.2.2. of Chapter II of this Report)
NOTE FROM THE SECRETARIAT # 53:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“This is an on-going process as the country becomes more technologically advanced and telecommunications is improved these systems will also be expanded. The Committee may not know that two-thirds of Guyana is hinterland where less than one third of the population lives but where the vast natural resources of the country lie and where isolated communities need to be serviced. Note should be taken of the first steps which have been taken with the introduction of the IFMAS by the Ministry of Finance in 7 of the ten regions. This has greatly enhanced fiscal management and accountability.”
j) Implement provisions that provide for objective selection factors or criteria in the evaluation of bids, including those for public works. (See Section 1.2.2. of Chapter II of this Report)
k) Implement provisions that require that the outcome of a bid evaluation be clearly and accurately substantiated, when applicable. (See Section 1.2.2. of Chapter II of this Report)
NOTE FROM THE SECRETARIAT # 54:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“The introduction of the Standard Bidding Documents (available for the purposes of the Committee on the Audit Office website referred to earlier; available at all Ministries, agencies and regional and other local government organs) assists in reducing concerns/perceptions of subjectivism/arbitraries in the selection process.”
l) Implement provisions that facilitate the participation of citizen overseers or watchdogs in monitoring the execution of contracts where their nature, importance or magnitude so warrants, in particular public works contracts. (See Section 1.2.2. of Chapter II of this Report)
NOTE FROM THE SECRETARIAT # 55:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“Through the Local government bodies, organized regular contact with communities and their encouraged participation, and the use of the media, these have been found to be useful innovations that help in overseeing or watching/monitoring the implementation/execution of their taxpayers money. In addition there is the scrutiny and oversight at the Parliamentary level in the Public Accounts Committee and the 4 sectoral committees.”
m) Harmonize the provisions contained in the Procurement Act and in the Regulations which allow challenges to the procurement process at the administrative level (See Section 1.2.2. of Chapter II of this Report).
SEE Note from the Secretariat #27.
n) Maintain and publish statistics that reflect the nature of contracts awarded, the proportion that is by public tender, the proportion that is by restricted tendering, request for quotations, single source procurement and procurement through community participation. (See Section 1.2.3 of Chapter II of this Report).
NOTE FROM THE SECRETARIAT # 56:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“In relation to (n) this is an on-going process as the state sector in general becomes more modernized and where more timely collection of data allows for this information to be generated on a more regular basis from the 10 regional administrative bodies, Ministries and agencies.”
2. SYSTEMS FOR PROTECTING PUBLIC SERVANTS AND PRIVATE CITIZENS WHO IN GOOD FAITH REPORT ACTS OF CORRUPTION (ARTICLE III (8) OF THE CONVENTION)
The Co-Operative Republic of Guyana has not yet considered the adoption of measures intended to establish, maintain and strengthen systems for protecting public servants and private citizens who, in good faith, report acts of corruption, as set out in section 2 of Chapter II of this Report.
In light of the comments made in the above-noted section, the Committee suggests that the Co-Operative Republic of Guyana consider the following recommendation:
- Adopt a comprehensive legal and regulatory framework that provides protection for public servants and private citizens who, in good faith, report acts of corruption, including protection of their identities, in accordance with its Constitution and the basic principles of its domestic legal system (See section 2.2 in Chapter II of this Report).
In meeting this recommendation, the Co-Operative Republic of Guyana could take into account the following measures:
a) Protection for persons who report acts of corruption subject to investigation in administrative or judicial proceedings;
b) Measures to Protection not only the physical integrity of whistleblowers and their families, not only in relation to their physical integrity but also to provide protection in as it concerns the workplace, especially when the person is a public official and the acts of corruption involve superiors or co-workers;
NOTE FROM THE SECRETARIAT # 57:
Jamaica proposes to amend the previous paragraph as indicated.
The Co-Operative Republic of Guyana agrees with Jamaica’s proposed amendments.
The Secretariat notes that similar language was used in other country reports in this round of review.
c) Expand the existing mechanisms for reporting, such as anonymous reporting or protection of identity reporting, that guarantee the personal security and the confidentiality of the identity of public servants and private citizens who, in good faith, report acts of corruption;
d) Creation of mechanisms to report any threats or reprisals against whistleblowers, stating the which should include appropriate authorities to process protection requests and the bodies responsible for providing it;
NOTE FROM THE SECRETARIAT # 58:
Jamaica proposes to amend the previous paragraph as indicated for the reasons stated on page 20 of the Comments Document submitted by Jamaica.
The Co-Operative Republic of Guyana agrees with Jamaica’s proposed amendments.
e) Witness protection mechanisms that offer witnesses the same guarantees as public servants and private citizens;
NOTE FROM THE SECRETARIAT # 59:
Jamaica makes the following observation regarding the previous paragraph:
“It is noted that this recommendation has been included in previous reports but it is not clear.”
f) Mechanisms to facilitate international cooperation on the foregoing matters, when appropriate, including the technical assistance and cooperation provided for by the Convention, as well as the exchanges of experiences, training, and mutual assistance.
g) A simplified whistleblower protection application process.
h) Provisions which provide for administrative and criminal sanctions for the failure to observe the rules and/or duties relating to protection.
i) Provisions that clearly delineate the respective competence of judicial and administrative authorities with respect to this area, clearly distinguishing one from the other.
NOTE FROM THE SECRETARIAT # 60:
Jamaica proposes to amend the previous paragraph as indicated.
The Co-Operative Republic of Guyana agrees with Jamaica’s proposed amendments and makes the following observation regarding the previous paragraph:
“State Party has already indicated in this preliminary report in response to various sections its intention to bring new legislation in relation to whistleblowers and protection of informants/justice protection. With a small population, issues relating to identity protection (assumed to mean here identity change/relocation) do provide some legislative and administrative hurdles to not only Guyana but all of the CARICOM countries.”
3. ACTS OF CORRUPTION (ARTICLE VI(1) OF THE CONVENTION)
The Co-Operative Republic of Guyana has adopted measures aimed at criminalizing the acts of corruption provided for by Article VI(1) of the Convention, as discussed in Section 3 of Chapter II of this Report.
In light of the comments made in the above-noted section, the Committee suggests that the Co-Operative Republic of Guyana consider the following recommendation:
3.1. Modify Section 338 (2) (a) of the Criminal Law Offences Act, so as to make it more fully consistent with Article VI(1)(a) of the Convention, by incorporating therein, the elements of directly or indirectly accepting a bribe by a public servant or soliciting it. (See Section 3.2. of Chapter II of this Report). Modify Section 338 (2) (a) of the Criminal Law Offences Act to increase the monetary penalties which can be imposed.
NOTE FROM THE SECRETARIAT # 61:
The Bahamas proposes to amend the previous paragraph as indicated for the reasons stated on page 1 of the Comments Document submitted by The Bahamas.
2. Modify Section 338 (2) (b) of the Criminal Law Offences Act, so as to make it more fully consistent with Article VI(1)(b) of the Convention, by incorporating therein, the elements of directly or indirectly offering a bribe to a public servant. (See Section 3.2. of Chapter II of this Report). Modify Section 338 (2) (b) of the Criminal Law Offences Act to increase the monetary penalties which can be imposed.
NOTE FROM THE SECRETARIAT # 62:
The Bahamas proposes to amend the previous paragraph as indicated for the reasons stated on page 2 of the Comments Document submitted by The Bahamas.
3. Increase the penalties in relation to sections 334, 335 and 338(2) to reflect the gravity of the offences. (See Section 3.2. of Chapter II of this Report).
NOTE FROM THE SECRETARIAT # 63:
Jamaica proposes the inclusion of the previous paragraph.
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraphs:
“The Criminal Law Offences seeks to criminalize acts of corruption provided for in Article VI (1) of the Convention. In the opinion of the SP, Sections 333, 337(2) (3) and Part 1 Title 3 (Abetment and Conspiracy) of the said Act provide sufficient basis in answering the Committee’s concerns.”
4. GENERAL RECOMMENDATIONS
Based on the review and contributions made throughout this Report, the Committee suggests that the Co-Operative Republic of Guyana consider the following recommendations:
4.1 Design and implement, when appropriate, training programs for public servants responsible for implementing the systems, standards, measures and mechanisms considered in this Report, for the purpose of guaranteeing that they are adequately understood, managed and implemented.
4.2. Select and develop procedures and indicators, when appropriate and where they do not yet exist, to analyze the results of the systems, standards, measures and mechanisms considered in this Report, and to verify follow-up on the recommendations made herein. (see Sections 1.1.3, 1.2.3, 2.3 and 3.3 of Chapter II of this Report)
NOTE FROM THE SECRETARIAT # 64:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraphs:
“The SP wishes to advice that Recommendation 4.1 is acknowledged and on-going and with reference to Recommendation 4.2, the SP recognizes and will work towards improving the mechanisms in place and introducing those that are feasible based on the country’s own limited human and financial resources.”
5. FOLLOW-UP
The Committee will consider the periodic update Reports submitted by the Co-Operative Republic of Guyana concerning progress in implementing previous recommendations, within the framework of the plenary meetings of the Committee and in accordance with the provisions of Article 31 of the Rules of Procedure and Other Provisions.
Similarly, the Committee will review the progress in implementing the recommendations made in this Report, in accordance with the provisions of Article 29 of the Rules of Procedure.
Regarding the progress made in implementation of the recommendations issued in the report adopted during the first round of review, the text of which is annexed hereto,[?]/ Guyana says that “to date, there have been no concrete steps taken to implement the above measures suggested by the Committee. Further, there is no Internet website where information in detail may be obtained on the abovementioned measures.” Guyana further notes that “to date, there is no available data on any difficulties that have been observed in the process of implementing the above recommendation” without adding any other information using the standard format adopted by the Committee for submissions of such information, as provided for in Article 29 of its Rules of Procedure.
NOTE FROM THE SECRETARIAT # 65:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraphs:
“The SP wishes to be advised as to this submission from Guyana which is referred to in quotes in the second sentence of the above-mentioned paragraph ( “ Guyana says …….. above recommendation ”as the SP is not aware of any such official or formal submission.”
“The SP regrettably had not officially responded to the 2007 questionnaire. The omission of Guyana has been in not reporting the status of implementation of the first round, rather than in not implementing and it hopes that its comments on this report have showed that efforts are being made to implement the Convention.”
SEE Note from the Secretariat #16.
In this connection, the Committee is concerned that the State undergoing review has not advanced in the implementation of the recommendations suggested in the First Round of Review. The Committee consequently offers the following remarks:
1. The Committee believes it should note the following background details regarding what the MESICIC State Parties agreed to with respect to following up on implementation of recommendations:
a. The Document of Buenos Aires – which created the MESICIC and which was signed by all of the Mechanism’s member states – establishes that one of its goals is “to follow up on the commitments made by the States Parties to the Convention and to study how they are being implemented.” It also states that its characteristics include ensuring “equal treatment among States Parties” and that it is “conducted on the basis of consensus and on the basis of the principle of cooperation among States Parties.”
b. Article 29 of the Rules of Procedure, adopted through the consensus of all the members of the Committee at its Eighth Regular Meeting (September 2005) provides that:
“Article 29. Follow-up within the framework of future rounds. At the start of a new round, there shall be included within the questionnaire a section on “Follow-up on Recommendations” to enable the review of progress made in implementing the recommendations included in its country report adopted in previous rounds. To that end, each State Party shall submit the appropriate information in the standard format that the Committee shall provide as an Annex to the Questionnaire.”
“With respect to the implementation of recommendations, the State Party shall refer to any difficulties that may have arisen in the process. Should it deem it to be appropriate, the State Party may also identify the domestic agencies that have participated in implementing the recommendations, as well as identify specific technical assistance or other needs connected with the implementation of the recommendations.”
“During the second and subsequent rounds, the country report of each State Party shall address the steps taken to implement the recommendation adopted by the Committee in previous country reports. The country report shall note those recommendations that have been satisfactorily considered and those that need additional attention by the country under review.”
c. In accordance with the terms of Article 29 of the Rules of Procedure, the Committee adopted, by consensus and as a part of the second round questionnaire,[?]/ the standard form to be used by the states to present information on the progress made with respect the recommendations extended during the first round. Similarly, the Committee adopted by consensus the methodology for review in the second round,[?]/ which establishes all provisions and considerations regarding the scope of the follow-up that the Committee is to conduct with respect to the recommendations extended to each country in the first-round country reports.
2. The report adopted in connection with Guyana as a part of the first round of review, including the recommendations formulated for that State therein, was adopted with the consensus of Guyana as the country under review and in accordance with the procedure established in the Document of Buenos Aires and the Rules of Procedure.
3. Related to each of the recommendations set out in the country reports, the Committee includes, in each case and in accordance with the analysis carried out, a series of measures that it believes the country undergoing review could take into account in order to progress with the implementation of those recommendations.
In accordance with the consideration given to the recommendations, the country undergoing review can always progress with their implementation by adopting the measures suggested by the Committee or other alternative measures that it deems appropriate.
Consequently, the standard form adopted by the Committee for States to report their progress with implementing the first-round recommendations allows the State to indicate the measure or measures suggested by the Committee or the measure or measures taken by the State to implement the corresponding recommendation and to briefly describe the specific steps it has taken in connection with those measures.
4. In accordance with the provisions of Article 29 of the Rules of Procedure, this standard form allows the country undergoing review to set out the possible difficulties it sees in the implementation of the various recommendations and, in addition, to identify which of its domestic agencies have participated in the implementation of the corresponding recommendation and to identify specific needs (such as technical assistance or help in other areas) associated with its implementation.
5. The Committee would like to stress that in accordance with the decisions taken by the States Parties to the MESICIC, the information sought on each state’s progress with implementing the recommendations and the standard form on which it is to be provided is intended, as one of its basic aims, to facilitate, promote, and strengthen cooperation among the States Parties, in compliance with the terms of the Convention, the Document of Buenos Aires, and the Rules of Procedure.
Thus, Article 29 of the Rules of Procedure establishes that: “During the second and subsequent rounds, the country report of each State Party shall address the steps taken to implement the recommendations adopted by the Committee in previous country reports. The country report shall note those recommendations that have been satisfactorily considered and those that need additional attention by the country under review.”
6. The lack of concrete steps taken with respect to the implementation of the recommendations deeply concerns the Committee and it has the even more serious consequence of making it impossible very difficult to pursue the basic goal of facilitating, promoting, and strengthening cooperation among the States Parties, in accordance with the terms of the Convention, the Document of Buenos Aires, and the Rules of Procedure. Thus, in the absence of relevant information on the difficulties detected by the country undergoing review, it is not impossible to facilitate international cooperation for the State in overcoming those problems.
NOTE FROM THE SECRETARIAT # 66:
The Bahamas proposes to amend the previous paragraph as indicated for the reasons stated on page 2 of the Comments Document submitted by The Bahamas.
The Co-Operative Republic of Guyana agrees with The Bahamas’ proposed amendments.
Bearing in mind the considerations set out above, the Committee urges Guyana to take concrete steps in the implementation of the recommendations formulated to it in the First Round Report and to report on its progress at the forthcoming meetings of the Committee, in compliance with Article 31 of the Rules of Procedure.
The Committee will continue to duly monitor the implementation of the recommendations it extended to Guyana, in accordance with the terms of its Rules of Procedure.
NOTE FROM THE SECRETARIAT # 67:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraphs:
“The State Party acknowledges the difficulties posed in relation to the Committee’s review of the SP’s implementation of the recommendations of the First Round of Review.”
“The State Party furthermore regrets that the Committee did not receive the update as requested and will commit itself that there will be an improvement in the future. However, the SP hopes that the additional information proved in response to this preliminary report will help to demonstrate Guyana’s efforts to be in compliance with the Convention.”
ANNEX
RECOMMENDATIONS FORMULATED TO THE CO-OPERATIVE REPUBLIC OF GUYANA IN THE FRAMEWORK OF THE FIRST ROUND OF REVIEW
1. STANDARDS OF CONDUCT AND MECHANISMS TO ENFORCE COMPLIANCE (ARTICLE III, PARAGRAPHS 1 AND 2 OF THE CONVENTION)
1. Standards of conduct intended to prevent conflicts of interest and enforcement mechanisms
Recommendation 1.1:
In light of the comments made in that section, the Committee recommends that the State under review consider strengthening the implementation of the provisions on conflicts of interest, and ensure that the laws on this matter are applicable to all public officials and employees, so as to permit the practical and effective application of a public ethics system.
Measures suggested by the Committee:
a. Formulate specific standards, when appropriate, to limit the actions of public servants in specific situations, in accordance with the functions and activities of each institutions and the specific nature and importance of the different offices, and mechanisms for enforcing them.
b. Develop a system of admission to and retention in public service, incorporating measures that allow the resolution of cases in which private interests conflict with the public interest, including the strengthening of the bodies that regulate this area, and consider preventive mechanisms to ensure that no appointments are made which are contrary to the rules in force on incompatibility.
c. Strengthen the relevant bodies, in order to improve their ability to ensure compliance with the requisites defined for the office and seek to ensure that no appointments are made in the public service that are contrary to the rules in force on ineligibility and incompatibility.
d. Develop, when necessary, other mechanisms to identify or detect any causes that might occur in the course of the exercise of public functions and that might give rise to conflicts of interest, such as officials declaring their private interests.
e. Develop, when necessary, provisions that restrict the participation of former public officials in situations that involve taking undue advantage of that condition, for a reasonable period of time.
f. Consider strengthening the rules in force governing sanctions, incorporating other types of administrative sanctions other than those already envisaged, such as suspension, the relinquishment of the private interests in conflict, nullity of any decisions by a person in such a position; and withdrawal from official involvement in the matter.
NOTE FROM THE SECRETARIAT # 68:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraphs:
“The State Party continues to hold the opinion that the Integrity Commission Act to which all elected officials at the national regional and local government levels, constitutional post holders, the judiciary, Permanent Secretaries, Regional Executive Officers, heads of agencies, heads of the Disciplined Forces, etc must report in an established form with procedures on an annual basis has established the legal framework for a public ethics system.”
“Interventions to strengthen the Integrity Commission Act and the functioning of the Integrity Commission are under consideration.”
2. Standards of conduct to ensure the proper conservation and use of resources entrusted to government officials in the performance of their functions and enforcement mechanisms
Recommendation 1.2:
In light of the comments made in that section, the Committee recommends that the State under review perform an analysis on the enforcement and the efficiency of the standards of conduct for the conservation and proper use of the public resources as well as of the mechanisms that exist in Guyana to ensure compliance with these standards as instruments for the prevention of corruption. As a result of this review, the country under review could consider the adoption of measures to promote, facilitate, consolidate or ensure the application of these instruments for that end.
NOTE FROM THE SECRETARIAT # 69:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“The State Party has made strenuous efforts to tighten up on the accounting and auditing systems and the fiduciary oversight over the last two years. This has been done with the assistance of the GOG/IDB Fiscal and Financial Management Programme. Guyana is now benefiting from an agreement with the US the Millennium Challenge Account with additional technical and financial support to further strengthen fiduciary oversight including strengthening areas of revenue collection, customs etc. .A copy of the areas which will be addressed can be forwarded to the Committee within this week.”
3. Standards of conduct and mechanisms concerning measures and systems requiring government officials to report to appropriate authorities acts of corruption in the performance of public functions of which they are aware
Recommendation 1.3:
In light of the comments made in that section, the Committee suggests that the State under review consider strengthening the existing mechanisms that require public officials to report to appropriate authorities acts of corruption in the performance of public functions of which they are aware to the appropriate authorities.
Measures suggested by the Committee:
a. Establish measures and systems that require all public servants to report to appropriate authorities acts of corruption in the performance of public functions of which they are aware, and facilitate compliance with this obligation through whatever measures are considered appropriate.
b. Adopt and implement protection measures for public servants to encourage them to report acts of corruption in good faith.
c. Review the application of the provision contained in section 28(3) of the Integrity Commission Act, in order to ensure that it does not become an impediment to, or inhibit, discourage, or intimidate public officials from reporting acts of corruption in the performance of public functions of which they are aware.
d. Implement adequate measures, including training for public servants on how to report acts of corruption, and the requisites for reporting them, and on protection mechanisms for those who report such cases in good faith.
NOTE FROM THE SECRETARIAT # 70:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraphs:
“The State party advises that these are on-going.”
2. SYSTEMS FOR REGISTERING INCOME, ASSETS AND LIABILITIES (ARTICLE III, PARAGRAPH 4 OF THE CONVENTION)
Recommendation 2:
In light of the comments made in that section, the Committee recommends that the State under review consider strengthening the systems for declaring income, assets and liabilities.
Measures suggested by the Committee:
a. Maximize the use of systems to study the contents of the declarations of income, assets and liabilities, and to adopt suitable measures to detect and prevent conflicts of interest and cases of illicit enrichment, using modern technologies, whenever possible, to expedite their presentation and improve systems, analysis or investigation of cases.
b. Consider the possibility of making adjustments or legal reforms to the power granted by the Integrity Commission Act to the Commission or the President, whichever is applicable, in order to impose the appropriate administrative sanctions without the authorization of another organ or official.
c. Consider adjustments or legal reform of the existing system of sanctions, including other conducts, such as the late presentation of declarations or other types of sanctions.
d. Review the possibility of extending the five-year term established in section 23 (b) of the Integrity Commission Act as a limit for instituting legal proceedings in respect of such unlawful acts committed by an official who no longer performs public functions.
e. Consider the advisability of granting to a body or official other than the President the administration, verification and application of the system for declaring assets and liabilities in respect of members of the Integrity Commission.
f. Regulate the conditions, procedures and other relevant aspects as regards making disclosures of income, assets, and liabilities public, as appropriate, in accordance with the fundamental principles of the domestic legal system.
NOTE FROM THE SECRETARIAT # 71:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraphs:
“The State Party reiterates that interventions to strengthen the Integrity Commission Act and the Commission are under consideration.”
3. OVERSIGHT BODIES FOR THE SELECTED PROVISIONS (ARTICLE III, PARAGRAPHS 1, 2, 4 AND 11 OF THE CONVENTION)
Recommendation 3:
Taking into account the considerations stated in that section, the Committee suggests that the State under review consider strengthening or creating oversight bodies to enforce compliance with the provisions of Chapter III, paragraphs 1, 2, 4 and 11 of the Convention, providing them with the resources needed to carry out their functions in full and establishing the mechanisms necessary for the institutional coordination of their actions and their periodic evaluation and follow-up.
NOTE FROM THE SECRETARIAT # 72:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“The SP is in favour of strengthening those bodies in existence rather than creating more and newer ones.”
“Oversight bodies such as the Supreme Court of Justice, the filling of the vacancy of the post of the Ombudsman, the Director of Public Prosecutions, the Police Complaints Authority, the Police Service, the Public Service and Judicial Service Commissions, the Attorney General’s Chambers, the Integrity Commission need to be strengthened whilst the investigative and enforcement aspect in the Police Force, the Guyana Revenue Authority, the Financial Intelligence Unit will need special attention to develop their skills in detecting/tracking/uncovering and prosecuting crimes of corruption .”
“Two major GOG/IDB funded loans in Citizen Security Programme ( $ 20MUSD) which will address the modernization of the Guyana Police Force, the Justice Sector Reform Programme ( $25MUSD0 which will address improved administration of justice will contribute to the development of the legislative and administrative capacity of these critical arms of Law and Order. Secondly, the GOG/US Millennium Challenge Account and the GOG/IDB Competitive Strategy will enhance areas relating to the strengthening and growth of the private sector and the fiduciary oversight and capabilities of the state agencies.”
“The extensive Parliamentary reforms in the 2006 period of the 8th Parliament has strengthened the level of fiduciary oversight by the establishment in the constitution and in the revised Standing Orders of the Parliament for an empowered Public Accounts Committee, four new standing sectoral committees which oversight government’s performance and which can summon Ministers to answer question. These five committees’ meetings are open to the public and media. The new Standing Committee to Appoint Members of the constitutional bodies has reduced the powers of the President in relation to the appointment of the 3 Service Commissions.”
4. MECHANISMS TO PROMOTE THE PARTICIPATION BY CIVIL SOCIETY AND NONGOVERNMENTAL ORGANIZATIONS IN EFFORTS TO PREVENT CORRUPTION (ARTICLE III, PARAGRAPH 11 OF THE CONVENTION)
4.1 General participation mechanisms
Recommendation 4.1:
Given the recommendations formulated with respect to each of the following mechanisms, consider the need for Guyana to reassess and strengthen its general approach for encouraging the participation of civil society and non governmental organizations in efforts to prevent corruption.
4.2. Mechanisms for access to information
Recommendation 4.2:
The Committee believes that Guyana should consider preparing and approving legal provisions supporting access to information.
Measures suggested by the Committee:
a. Develop and regulate the processes through which requests are received in order to respond to them on a timely basis, for appeals in cases where requests are denied, and establish sanctions in the event of failure to comply with the obligation to furnish public information.
b. Consider the creation or adoption of systems to ensure that the public has access, when appropriate, to information on public government organizations and their financial and program planning activities, specifically including oversight bodies responsible for matters covered by this report.
NOTE FROM THE SECRETARIAT # 73:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraphs:
“The State Party has taken this matter under consideration.”
4.3. Mechanisms for consultation
Recommendation 4.3.1:
Develop standards and procedures capable of supporting consultation mechanisms to encourage civil society organizations and citizens to provide opinions and proposals to be taken into account.
Recommendation 4.3.2:
Design and implement programs to publicize consultation mechanisms, and when appropriate, provide civil society, nongovernmental organizations and public officials and employees with the training and instruments necessary for effective implementation of those mechanisms.
NOTE FROM THE SECRETARIAT # 74:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraph:
“Yes, this is actively implemented as a policy of the government and enshrined in the constitution. Administratively this is a norm for all Ministries/agencies/regions etc and in formulating policy and making decisions.”
4.4. Mechanisms to encourage participation in public administration
Recommendation 4.4:
The Committee considers it useful to formulate recommendations 4.3.1 and 4.3.2 of this section with respect to the mechanisms to encourage participation in the public administration.
4.5. Mechanisms to encourage participation in the follow-up of public administration
Recommendation 4.5:
The Committee considers it useful to formulate recommendations 4.3.1 and 4.3.2 of this section with respect to the mechanisms for the follow-up of the public administration.
Review whether the sanction for the malicious filing of false complaints established by Section 28(3) of the Integrity Commission Act is an impediment to the participation of civil society.
5. ASSISTANCE AND COOPERATION (ARTICLE XIV)
Recommendation 5.1:
Ensure that both the mutual assistance treaties signed and the Convention are applied in specific cases of corruption.
NOTE FROM THE SECRETARIAT # 75:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraphs:
“Please see Appendix B reference Guyana’s status.”
Recommendation 5.2:
Promote the adoption and effective application of the Mutual Assistance in Criminal Matters Bill.
NOTE FROM THE SECRETARIAT # 76:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraphs:
“This Bill has to be returned in the 9th Parliament as it lapsed.”
Recommendation 5.3:
Determine and prioritize specific areas where technical cooperation by other States party might be useful in strengthening their capacities for preventing, detecting, investigating and punishing acts of corruption.
NOTE FROM THE SECRETARIAT # 77:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraphs:
“Recent (2008) regional meetings on Crime and Violence with CARICOM countries and neighbouring countries have created a much greater willingness and commitment by the countries to work jointly more cohesively and collaboratively. The experience of CARICOM region hosting of the Cricket World Cup West Indies 2007 has laid a strong foundation for nw and additional mutual criminal assistance.”
6. CENTRAL AUTHORITIES (ARTICLE XVIII)
Recommendation 6.1:
Appoint the Central Authority provided for in Article XVIII of the Convention for the purposes of international assistance and cooperation foreseen therein, either through approval of the provisions in this area found in the Mutual Assistance in Criminal Matters Bill referred to in the response to the questionnaire, or by taking the appropriate administrative decisions.
NOTE FROM THE SECRETARIAT # 78:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraphs:
“The State Party advises this is under consideration.”
Recommendation 6.2:
Formally notify the General Secretariat of the OAS the appointment of the central authority, pursuant to the prescribed formalities.
Recommendation 6.3:
Ensure that once the authority has been appointed it has the resources it needs to adequately fulfill its functions.
7. GENERAL RECOMMENDATIONS
Recommendation 7.1:
Design and implement, as appropriate, training programs for public officials responsible for applying the systems, standards, measures and mechanisms considered in this report, to guarantee that they are properly understood, handled and applied.
Recommendation 7.2:
Select and develop procedures and indicators, as appropriate, for verifying follow-up of the recommendations contained in this report, and notify the Committee accordingly through the Technical Secretariat. For said purposes, Guyana could take into account the list of broader indicators applicable to the inter-American system that were available for selection, as necessary, by the State under review, and which have been published by the Technical Secretariat of the Committee on the OAS Internet website. The State under review could also take into account any information arising from the review of mechanisms developed pursuant to recommendation 7.3 below.
Recommendation 7.3:
Implement the recommendations contained in this report and develop, as appropriate and where none exist, procedures to review the mechanisms mentioned herein.
Recommendation 7.4:
Optimize the general statistical records of the oversight bodies so as to allow objective review of the results of the legal framework and other measures that are adopted.
NOTE FROM THE SECRETARIAT # 79:
The Co-Operative Republic of Guyana makes the following observation regarding the previous paragraphs:
“The State party has acknowledged and responded to the above-mentioned Recommendations at no. 7 in this report and advices and assures that these are on-going matters to be addressed all the time in improving transparency, accountability and efficient and effective use of limited resources.”
[1] This draft preliminary Report was prepared in accordance with the provisions of Articles 23 (a), 27 and 29 of the Committee's Rules of Procedure (SG/MESICIC/doc. 9/04 rev. 2), as well as the methodology for reviewing implementation of the Convention provisions selected in the framework of the second round (SG/MESICIC/doc. 171/06 rev. 2) and the format for country reports (SG/MESICIC/doc. 173/06 rev. 1), which the Committee adopted at its ninth meeting, held at OAS headquarters in Washington, DC, from March 27 to 31, 2006.
[2] Guyana’s reservation states that: "The Cooperative Republic of Guyana does not consider itself bound to extend the actions of seizure under Article XV of the present Convention to the extent that such actions violate the provisions of Article 142(1) of the Constitution of the Cooperative Republic of Guyana." Article 142(1) of the Constitution provides in pertinent part that “No property of any description shall be compulsory taken possession of, and no interest in or right over property of any description shall be compulsory acquired, except by or under the authority of a written law-”guarantees protection against the seizure of property as a fundamental right and it specifically protects property and all related interests or rights against compulsory seizure, except as authorized by written law.
[3]
[4] Ibid.
[5]
[6] Response to the Questionnaire, pg. 8,
[7] Response of the Co-Operative Republic of Guyana to the second round questionnaire, p. 9.
[8] Response of the Co-Operative Republic of Guyana to the second round questionnaire, pp. 9-10.
[9] The Interpretation and General Clauses Act includes in the definition of “person” any body of persons corporate or unincorporated [Section 5(1)].
[10] Response of the Co-Operative Republic of Guyana to the second round questionnaire, p. 13.
[11] See annex to this Report, containing the recommendations extended to Guyana in the report of the first round of review.
[12] See “Questionnaire” at:
[13] See “Methodology” at:
[i] Article 199(2) of the Constitution reads as follows: “The Judicial Service Commission may, by directions in writing and subject to such conditions as it thinks fit, delegate any of its powers under the preceding paragraph to any one or more of its members or to any person holding or acting in an office in respect of which power to make appointments is vested in the President acting in accordance with the advice of the Commission or to which this article applies.”
Article 201(2) of the Constitution reads as follows: “The Public Service Commission may, by directions in writing subject to such conditions as it thinks fit, delegate any of its powers under the preceding paragraph to any one or more members of the Commission or, with the consent of the Prime Minister, to any public officer, or, in relation to any office on the staff of the Clerk of the National Assembly, to the Clerk”.
[ii] Pursuant to Section 9(1) of the Public Service Tribunal Appellate Act, the only appealable matters are the following: 1- Appointment by promotion of any person to public office and 2- Exercise of disciplinary control of any person holding, or acting in, any public office.
[iii] Pursuant to Article 3(2) and (3) of the Procurement Act 2003, the Act does not apply to procurement involving national defense or national security unless the procuring entity, subject to the approval of the National Board, expressly so declares to suppliers or contractors when first soliciting their participation in the procurement proceedings.
[iv] Pursuant to Article 26(1)(a) of the Procurement Act 2003, the “restricted tendering” method of procurement can only be used if the goods, construction or services, by reason of their highly complex or specialized nature, are available only from a limited number of suppliers or contractors, in which case all such suppliers or contractors shall be invited to submit tenders. In addition, Article 26(1)(b) of the Procurement Act and the Schedule 2 of its Regulations establish the following maximum threshold for the use of this procurement method: G.$ 1,000,000, in case of contracts for goods and services (other than consulting services) and G.$ 5,000,000, in the case of contracts for construction. Article 26(2) further provides that when the “restricted tendering” procedure is used, only suppliers or contractors invited by the procuring entity due to their qualifications can submit tenders. All other steps and requirements applicable to open tendering contained in Articles 30 to 43, shall be complied with.
[v] Pursuant to Article 27(1) of the Procurement Act 2003 and the Schedule 2 of its Regulations the maximum threshold for use of the “request for quotations” method is G.$ 800,000. In addition, Article 27(2) of the Procurement Act 2003 stipulates that prior to awarding a contract under the “request for quotations” method of procurement; the procuring entity shall obtain and compare quotations from as many qualified suppliers or contractors as feasible, but not fewer than three. Moreover, Article 27(3) provides that the procuring entity shall make its best efforts to check prices on the Internet to ensure the reasonableness of quoted prices and shall publish the price of its most recent procurement at least once a quarter in a newspaper of national circulation.
[vi] Article 28 of the Procurement Act 2003 states: “The procuring entity may engage in single-source procurement when - (a) the goods or construction are available only from a particular supplier or contractor, or a particular supplier or contractor has exclusive rights with respect to the goods or construction, and no reasonable alternative or substitute exists; (b) the services, by reason of their highly complex or specialized nature, are available from only one source; (c) owing to a catastrophic event, there is an urgent need for the goods, services or construction, making it impractical to use other methods of procurement because of the time involved in using those methods; (d) the procuring entity, having procured goods, services, equipment or technology from a supplier or contractor, determines that additional supplies must be procured from that supplier or contractor for reasons of standardization or because of the need for compatibility with existing goods, services, equipment or technology, taking into account the effectiveness of the original procurement in meeting the needs of the procuring entity, the limited size of the proposed procurement in relation to the original procurement, the reasonableness of the price and the unsuitability of alternatives to the goods in question; or (e) the procuring entity applies section 3 (2), to procurement involving national defense or national security and determines, as a result of national security concerns, that single-source procurement is the most appropriate method of procurement.”
Article 29 of the Procurement Act 2003 states: “In circumstances where procurement is conducted in poor remote communities, where the competitive procedures described in this Act are not feasible, goods, works and services the value of which does not exceed such an amount as may be prescribed by regulations (G.$ 1,500,000), may be procured, either - (a) in accordance with procedures that promote efficiency through participation of community organizations; or (b) through single source procurement from direct contracting of suppliers or contractors located near the community.”
[vii] Article 17(1) of the Procurement Act 2003 provides that “the National Board shall be responsible for exercising jurisdiction over tenders the value of which exceeds such an amount prescribed by regulations, appointing a pool of evaluators for such period as it may determine, and maintaining efficient record keeping and quality assurances systems”.
[viii] Article 17(2) of the Procurement Act 2003 provides that “In addition, pending the establishment of the Public Procurement Commission, the National Board shall be responsible for -
(a) making regulations governing procurement to carry out the provisions of this Act;
(b) determining the forms of documents for procurement including, but not limited to -
(i) standard bidding documents;
(ii) prequalification documents;
(iii) contracts;
(iv) evaluation forms; and
(v) procurement manuals, guidelines, and procedures.
(c) organizing training seminars regarding procurements;
(d) reporting annually to the Minister on the effectiveness of the procurement processes, and recommending therein any amendment to this Act that may be necessary to improve the effectiveness of the procurement process;
(e) as provided for in section 53, upon request, reviewing decisions by the procuring entities;
(f) adjudicating debarment proceedings.”.
[ix] Article 20 of the Procurement Act 2003 establishes, inter alia, the following functions to the Regional Boards:
(1) Each Regional Board shall nominate for consideration by the National Board qualified individuals to serve on an Evaluation Committee;
(2) Each Regional Board shall in accordance with the Procurement Act and the regulations oversee the administration of procurement in its respective administrative region;
(3) Each Regional Board shall prepare, using such standardized forms and criteria as have been prepared by the National Board, solicitation documents for tenders subject to its jurisdiction. A Regional Board may, with the approval of the National Board, make such minor alterations or modifications to such forms and criteria as are deemed necessary on a case-by-case basis;
(4) Each Regional Board shall determine whether suppliers or contractors satisfy such qualification requirements as may be imposed under Article 5(1);
(5) For each procurement subject to its jurisdiction, a Regional Board shall select from the pool of evaluators appointed by the National Board under Article 17, three evaluators with expertise, to serve as members of the Evaluation Committee for such procurement;
(6) In selecting evaluators to serve on an Evaluation Committee, a Regional Board is not restricted to selecting individuals from its administrative region;
(7) The Evaluation Committee shall evaluate the tenders pursuant to Article 39.
[x] Article 23 of the Procurement Act 2003 establishes the following functions to the Ministerial, Departmental or Agency Tender Boards:
(1) Each Ministerial, Departmental and Agency Tender Board shall nominate for consideration by the National Board qualified evaluators to serve on Evaluation Committees;
(2) Each such Tender Board shall, in accordance with the Procurement Act and the regulations, oversee the administration of procurement for its respective Ministry, Department, or Agency;
(3) Each such Tender Board shall prepare, using such standardized forms and criteria as have been prepared by the National Board, solicitation documents for tenders subject to its jurisdiction; and may, with the approval of the National Board, make such minor alterations or modifications to the forms and criteria as are deemed necessary on a case-by-case basis;
(4) Each such Tender Board shall determine whether suppliers or contractors satisfy the qualification requirements in accordance with Article 39 (8).
(5) For each procurement subject to its jurisdiction, each such Tender Board shall select from the pool of evaluators appointed by the National Board under Article 17, three evaluators with expertise, to serve as members of the Evaluation Committee for such procurement.
(6) Each such Tender Board shall transmit to the Evaluation Committee, in a timely manner, all tenders timely received from contractors or suppliers pursuant to Article 35.
(7) The Evaluation Committee shall evaluate the tenders pursuant to Article 39.
[xi] Pursuant to Article 4(2) of the Regulations to the Procurement Act 2003, this report must contain the following information about the contract: (a) name of the procuring entity; (b) date of award; (c) name of the party to whom the contract was awarded; (d) object of the contract (short description and classification); (e) amount and currency of the contract; (f) procurement method used; (g) number of tenders, proposals and quotations received; and (h) contract identification number/letter.
[xii] The Bid Protest Committee is established under regulation 12 of the Procurement Regulations 2004. It has the power to review any decision, act or omission by a procuring entity upon written request by a supplier or contractor, pursuant to the procedure established under regulation 13.
[xiii] Section 334 of the Criminal Law Offences Act states: “Public servant denotes a person falling under any of the following descriptions, namely,
(a) the President;
(b) every member of the Cabinet;
(c) every person holding an office of emolument in a civil capacity in the service of the Government;
(d) every commissioned officer in the Guyana Defence Force;
(e) every judge, magistrate, or justice of the peace;
(f) every officer of a court of justice whose duty it is as that officer to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the court, and every person specially authorised by a court of justice to perform any of those duties;
(g) every juryman;
(h) every arbitrator or other person to whom any cause or matter has been referred for decision or report;
(i) every person who holds an office by virtue of which he is empowered to place or keep any person in confinement;
(j) every officer of Government whose duty it is, as that officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety, or convenience;
(k) every officer whose duty it is, as that officer, to take ,receive, keep, or expend any property on behalf of Government, or to make any survey, assessment, or contract on behalf of Government, or to investigate or to report on any matter affecting the pecuniary interests of Government, or to make, authenticate, or keep any document relating to the pecuniary interests of Government, or to prevent the infraction of any law for the protection of the pecuniary interests of Government, and every officer in the service or pay of Government or remunerated by fees or commission for the performance of any public duty;
(1) every officer whose official duty it is to take, receive, keep, or expend any property, to make any survey or assessment, or to levy any rate or tax for any common purpose of any village, town or district, or to make, authenticate, or keep any document for the ascertaining of the rights of the people of any village, town or district;
(m) every member of, and every person employed by, a local authority under the Local Government or by a council; (as defined in the Municipal and District Councils Act);
(n) Every person, other than a person falling under any of the descriptions in the preceding subparagraphs, who holds an office listed in Schedule I of the Integrity Commission Act.”
[xiv] Pursuant to Section 2 (j) of the Money Laundering (Prevention) Act, “money laundering” means (i) engaging directly or indirectly, in a transaction that involves property that is the proceeds of crime, knowing or believing the same to be the proceeds of crime, or (ii) receiving, possessing, managing, investing, concealing, disguising, disposing of or bringing into or removing from Guyana any property that is the proceeds of crime, knowing or believing the same to be the proceeds of crime.
Additionally, Section 2(m) provides that “proceeds of crime” means any property derived or obtained directly or indirectly, through the commission of a prescribed offence, whether committed in Guyana or elsewhere; and includes any property which is knowingly mingled with property that is so derived or obtained. Bribery is included in the list of prescribed offences.
NOTE FROM THE SECRETARIAT # 80:
Jamaica proposes to amend the previous paragraph as indicated.
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