Improving Public Procurement Law in the Commonwealth of Dominica

Dominica Business Forum Inc
Dominica Business Forum (DBF) Inc
  1. DBF Inc and its constituent members, and certainly speaking to the BCAD, have always highlighted the importance of transparent public procurement practices and processes in stimulating sustainable growth in the private sector and the local economy.
  2. Good transparent public procurement practices which allow broad participation of the Dominican public reduces the opportunity for growth of parallel underground economies (black-market) and corruption in Government procurement.
  3. Good public procurement laws which are enforceable, and are enforced, underpin and are necessary in today’s Dominican society for good transparent public procurement practice to prevail and be the order of the day.
  4. Under Dominican Law there is the Public Procurement and Contract Administration Act #11 of 2012 (PP&CA Act #11 of 2012) which has not been enforced since its coming into force in January 2015. 
    1. The result is that the private sector has not benefited or given growth opportunities in a transparent manner from the expectation of enforceable good and transparent public procurement practices that should have emanated from this fairly good legislation. 
    1. The result also is that government credibility with respect to its non-facilitation of corruption and stemming of black-market economies in public procurement has been at an all-time low.
  5. In an attempt to rid itself of the perception that the government has facilitated corruption and a black-market economy in public procurement, the Government has made several pronouncements over the years about amending or repealing the current law: 
    1. The Government came up with an alternative bill in 2016 which was never presented for public scrutiny.
    1. In 2021, the Government presented to the public on 11th January 2021, the Public Procurement and Disposal of Public Property Bill 2021 (PP&DPP Bill 2021)..
  6. At a presentation to the DBF inc on 4th March 2021, the Ministry of Financed highlighted that its main issues with the PP&CA Act #11 of 2012 were
    1. Disclosure requirements risk injury to essential security interests of the State.
    1. Ambiguity in lines of responsibilities and accountabilities of several key actors and institutions: specifically, the roles and reporting responsibilities of the Financial Secretary, Permanent Secretaries and Chief Procurement Officer.
  7.  The DBF Inc through two (2) constituent members have done a thorough review and comparison of both the PP&CA Act 11 of 2012 and Public Procurement and Disposal of Public Property Bill 2021.  One of these members engaged a legal draftsman in the review, another engaged an individual with wide procurement practice and knowledge.
  8. The DBF Inc reviewers found:
    1. That the matters of concern by both the public sector (Ministry of Finance) and the private sector with respect to the shortcomings of the existing PP&CA Act #11 of 2012 could be easily resolved with amendments to the existing Act.
    1. That the PP&CA Act #11 of 2012 is a far superior piece of legislation than its proposed replacement the PP&DPP Bill 2021 in many areas including:
      1. Ensuring that the disclosure requirements do not risk injury to essential security interests of the State.
      1. Enhancing fairness, transparency and public confidence, broad participation and competition in public procurement, value for money.
      1. Ensuring that the hallmark of the public procurement process is the open competitive procurement method, the most appropriate in enhancing good, credible, fair and transparent public procurement practice.
      1. Riding the public procurement process of its ability to facilitate corruption and parallel black-market economies.
    1. Repealing the PP&CA Act #11 of 2012 and replacing it with the PP&DPP Bill 2021 would fail to achieve the purposes of the Act passed in 2012 associated with:
      1. Value for Money, Transparency, Broad Participation, Fairness and Equity, Accountability, Clarity of procurement event,
      1. Fostering Public Confidence in the procurement process,
      1. Increased economy – facilitate real domestic growth (limit public money going into the underground economy),
      1. providing tangible evidence that safeguards are effective,
      1. dealing efficiently with offenses and civil liability, and importantly,
  9. Repealing the PP&CA Act #11 of 2012 and replacing it with the PP&DPP Bill 2021 would continue to depress real economic growth, continue to retard the development of the private sector, and put to slumber the entrepreneurial spirit in the youth. 
    • Repealing the PP&CA Act #11 of 2012 and replacing it with the current draft of  PP&DPP Bill 2021 would also fail to achieve real solutions to the issues with “ambiguity in lines of responsibilities and accountabilities of several key actors and institutions” while maintaining adequate provisions for oversight and effective safeguards in public procurement.
  10. The DBF Inc has presented its findings, concerns and recommendations, through its Constituent Members, to the Ministries of Finance and Legal Affairs.
  11. The DBF Inc strongly recommends therefore:
    • That the Ministry of Finance and Ministry of Legal Affairs review with the Private Sector their concerns and recommendations, and take steps to amendment the existing Act to improve the likelihood that it will realise the purposes of the Act and facilitate the machinery to provide good transparent public procurement practices which will facilitate equity in opportunities for private sector growth in the real economy, and enhance transparency in the use of public resources.
    • That the entire business community, inclusive of the DAIC, should take a non-partisan approach in facilitating the enforcement of a good and transparent public procurement machinery and practice that will assist in the transparent growth of the private sector for the overall good of the Dominican economy.