THE UNIVERSITY OF THE WEST INDIES
ST. AUGUSTINE
PRINCIPAL CHALLENGES TO THE DEVELOPMENT OF
EFFICIENT PROCUREMENT PROCESSES IN THE PUBLIC
SECTOR IN TRINIDAD AND TOBAGO
PRMG6007 – PROCUREMENT MANAGEMENT, LOGISTICS
& CONTRACTING
Professor Winston H. E. Suite
of
The University of the West Indies
FACULTY OF
ENGINEERING
SEON CHARLES
04707759
2010
ii
Abstract
Public procurement is the process of acquiring property and services using public
money to accomplish specified public purposes. The current legal and regulatory
framework embodied in the Central Tenders Board Ordinance, 1961, (The Ordinance)
applies mainly to Government ministries and departments and some statutory
authorities. There are other agencies using public funds, including State-owned
enterprises, statutory authorities and civil society whose procurement practices fall
outside the ambit of the Ordinance. The current public procurement system in Trinidad
and Tobago is faced with numerous challenges which hinder the development of an
efficient system to guide the spending of public funds. This report attempts to highlight
and discuss the effects of these principal challenges on the public sector procurement
system. The report also provides recommendations, suggestions and strategies for
mitigating the effects of these challenges.
iii
Table of Contents
Abstract ............................................................................................................................. ii
List of Figures ................................................................................................................... v
List of Tables ................................................................................................................... vi
Chapter 1 - Introduction .................................................................................................... 1
Chapter 2 - Literature Review ........................................................................................... 3
2.1
Overview of the Current Public Procurement Process ....................................... 3
2.1.1 Definition of Public Procurement .................................................................... 3
2.1.2 The Evolution of the Legislative and Regulatory Framework ......................... 4
2.1.3 Current Procurement Practice observed by the Central Tenders Board .......... 6
Chapter 3 - Discussion of the Principal Challenges to the Development of Efficient
Procurement Processes in the Public Sector in Trinidad and Tobago ............................ 10
3.1
Design and Build Procurement System ............................................................ 10
3.1.1 Challenges Faced by the Adoption of a Design and Build Procurement
System ..................................................................................................................... 13
3.1.2 Recommendations to Combat Challenges of Design/Build Approach .......... 14
3.1.3 Performance Based Contracts ........................................................................ 15
3.1.4 External Consultancy Services....................................................................... 16
3.2
Alleged Corruption in All Stages of the Procurement Process ........................ 16
3.2.1 How corruption operates in the Public Procurement Process ........................ 18
3.2.2 Mitigation Strategies for Corruption in Public Procurement ......................... 21
3.3
Presence of Foreign Contractors ...................................................................... 31
3.3.1 Chinese Experience in Trinidad and Tobago ................................................. 31
3.3.2 Local Contractor Praised ................................................................................ 34
3.3.3 Recommendations .......................................................................................... 34
3.4
Public Sector Procurement Process .................................................................. 38
3.4.1 Deficiencies in the Legal and Regulatory Framework................................... 38
3.4.2 Absence of Uniformity in the Tendering Process .......................................... 39
3.4.3 Human Resource Limitations ........................................................................ 39
iv
3.4.4 Lack of Regulatory Oversight ........................................................................ 40
3.4.5 Absence of a Complaints Mechanism and Dispute Resolution ..................... 41
3.4.6 Lack of National Registry .............................................................................. 41
3.4.7 Lack of an Electronic Public Information System ......................................... 41
3.4.8 Concerns of Local Suppliers .......................................................................... 41
3.4.9 Poor Data Collection and Reporting .............................................................. 42
3.4.10 Current Best Practices .................................................................................. 42
3.4.1 Operating Principles for Best Procurement Practice...................................... 42
3.4.2 Legislative Models Effecting Current Best Practice ...................................... 46
3.4.3 The Preferred Procurement Model ................................................................. 48
3.5
Funding............................................................................................................. 51
3.5.1 Recommendations .......................................................................................... 52
3.6 Weakness of Local Contractors’ Organization, Registration, Management,
Labour, Skill, Familiarity with New Technology Required for Mega Projects .......... 53
3.6.1 Registration .................................................................................................... 53
3.6.2 Management ................................................................................................... 54
3.6.3 Labour ............................................................................................................ 54
3.6.4 Skill and Familiarity with Mega Projects ...................................................... 54
3.6.5 Recommendations .......................................................................................... 55
Chapter 4 - Conclusion ................................................................................................... 56
References ....................................................................................................................... 57
v
List of Figures
Figure 2.1: Procurement Cycle ......................................................................................... 6
Figure 3.1: Design and Build Procurement System ........................................................ 12
vi
List of Tables
Table 3.1: Corruption Related Risks at each stage of the Procurement Process ............ 18
1
Chapter 1 - Introduction
Public contracting is the main way a government operates and public money is spent. A
contract is a binding agreement or business arrangement for the supply of goods or services.
Examples include the purchase of office supplies for a governmental office and the contracting
for the design of a complex concession system for an airport. These contracts are meant to buy or
produce goods or services that benefit citizens directly, for example the construction of a road or
a sewage system. Others benefits citizens indirectly, such as the contracting out of consultancy
services to redesign the customs agency.
Public contracting occurs at different governmental levels: in municipalities, provinces or
states and in national governments. While national level procurement can be bigger in terms of
value per contract, local government contracting is significant in terms of the number of
processes and their impact. The term procurement is often used in this field. Procurement refers
to the acquisition of goods and services by any individual or organization (public, private and
international).
An efficient public procurement process is one that always seeks to deliver value for money,
accountability and transparency to the client. However, this is not the situation in today’s public
procurement system within Trinidad and Tobago. Currently, the region of Trinidad and Tobago
is faced with numerous challenges which hinder and stifle the development efficient procurement
processes in the public sector. These challenges include but not limited to the following:
1. Conditionalities of the International Lending Agencies
2
2. Weakness of local contractors’ organization, registration, management, labour, skill and
familiarity with new technology required for mega-projects
3. Funding
4. Presence of Foreign Contractors
5. Design and Build Procurement System
6. Bi-lateral financing with foreign labour
7. Level of procurement experience and expertise in local actors
8. Productivity level vs International operators
9. Alleged corruption in all stages of the procurement process
10. Legislative framework – HSE legislation and regulation
 Public Sector Procurement Process
This report discusses the principal challenges and attempts to provide solutions,
recommendations and strategies to combat these challenges. The challenges that were considered
to be of utter importance included nos. 2, 3,4,5,7 and 9 from the listed previously stated. These
were considered to be principal challenges because these issues are currently plaguing society
and most prevalent in Trinidad and Tobago’ public procurement system. The construction sector
of Trinidad and Tobago can be considered as the most severe pathogen to these hosts of public
procurement challenges.
3
Chapter 2 - Literature Review
This chapter attempts to define the public procurement process, it also describes the
legislative and regulatory framework behind public procurement in Trinidad and Tobago and
provide a synopsis of the procurement cycle observed by the Central Tenders Board.
2.1 Overview of the Current Public Procurement Process
2.1.1 Definition of Public Procurement
Procurement can be defined as the acquisition of goods and services including the
undertaking of works and consultancy services for use by the client organization. Procurement is
therefore a comprehensive process that includes inter-alia design, publicity, tendering, receiving,
opening and evaluation of offers, award and signing of contract, guarantees, installation, testing
and start up operation, service and maintenance (Central Tenders Board n.d.).
Public procurement involves the utilization of public money in a complex of processes and
choices in which needs are evaluated, scope of works, products or services identified, form of
delivery and methodology for making contractual choices determined, contractual arrangements
entered into and works or services performed.
Public procurement distinguishes itself from private procurement through the utilization of
public money and as a result is subject to a greater degree of transparency and accountability
than obtains in the private sector. The utilization of public money imposes on all agents a duty of
care in the public interest and a duty to safeguard and ensure the attainment of value for money.
The utilization of public money also demands that such utilization will be undertaken only for
the purposes intended and authorized. Public procurement occurs wherever public money is
spent on the acquisition, maintenance and disposal of property, or the procurement of works and
4
services. This means that the legal framework will apply not only to Government ministries and
departments but also to statutory authorities, State-owned enterprises (SOEs) and civil society
bodies. Wherever and whenever public money is being spent, the public interest must be
paramount (Ministry of Finance of Trinidad and TObago 2005).
2.1.2 The Evolution of the Legislative and Regulatory Framework
During the period 1956 to 1960, there was a significant increase in Public Sector in-house
construction activity which gave rise to a number of financial management problems. This led in
1961 to the establishment of a legislative and regulatory framework known as The Central
Tenders Board Ordinance No. 22 of 1961 which incorporated the development of the following:
i.
A Cost Accounting Division in the Ministry of Finance
ii.
The Central Tenders Board (CTB)
The Cost Accounting Division in the Ministry of Finance was the agency charged with the
responsibility of spending public funds and is therefore accountable to the population for such
expenditure. The majority of this expenditure involves the procurement of goods and services.
Approximately 75% of the Budget allowances for this procurement are through the Tendering
Process.
The Central Tenders Board was therefore established by Act No. 22 of 1961 to ensure that
the proper procedures are followed to obtain the most suitable supplies and services from
available resources. The Central Tenders Board forms an integral part of the Financial
Regulations as it is the Government Agency responsible for awarding contracts as requested by
Government Ministries, Departments and certain Statutory Bodies. The Central Tenders Board
(CTB) was instated to be “…the sole and exclusive authority in inviting, considering and
accepting or rejecting offers for the supply of articles or for the undertaking of works or any
5
services necessary for carrying out the functions of Government or any statutory bodies, and to
dispose of surplus or unserviceable articles belonging to the Government or any statutory
bodies.”
These measures applied the principles of efficiency, transparency and accountability, as
understood at that time, to the management of public procurement. Over the years, the
Government of the Republic of Trinidad and Tobago has played an increasingly influential role
in the public procurement system.
In 1979, the Ordinance was amended to allow the Government to act on its own behalf.
This reflected a major shift in policy on the role of the CTB as Government’s sole procuring
agency. The amendment also increased the powers of the CTB to contract consultants.
In 1987, the Ordinance was amended further to provide for the handling of matters in the
event of an emergency without reference to the CTB.
In 1991, an amendment provided for a Special Ministerial Tenders Committee to be
established at the Ministry of National Security to procure arms, ammunition, and equipment for
the Defense Force and the Protective Services.
In 1993, an amendment validated the National Insurance Property Development
Company Ltd (NIPDEC) as a procurement agency for Government outside the ambit of the
CTB.
Further decentralization of the procurement regime was also effected from 1979 onwards by
the establishment of new statutory corporations and the removal of some earlier established
statutory bodies from the purview of the CTB. The CTB now has an exceedingly diminished role
as compared to 1961.
6
2.1.3 Current Procurement Practice observed by the Central Tenders
Board
Note: The text highlighted in red for steps 5 & 6 indicates the alteration to the Procurement
cycle to represent Selective Tendering
Figure 2.1: Procurement Cycle
Source: Central Tenders Board. "Procurement Cycle." In Central tenders Board of Trinidad and Tobago
Information Booklet, 14. 2008
The following is a synopsis of the Procurement Method observed by the Central Tenders Board
(Central Tenders Board n.d.):
7

The Client Ministry or Department conducts a needs assessment, reconciling its needs
with available funding. A Bid Package is subsequently prepared and submitted to the
Central Tenders Board Division.

Upon receipt of the bid package, the Central Tenders Board reviews the documents and
ensures that they conform to the Central Tenders Board Regulations and Procedures.

Once all documentation received from the Client Ministry is reviewed and found to be
within the proper procedures, the Central Tenders Board invites bids/tenders publicly or
selectively.

Tenders are invited publicly by advertising tender notices locally, in the press and in at
least two (2) newspapers of wide circulation; and internationally, in reputable Journals
and the Development Business Forum. Tenders are also published on the Central Tenders
Board’s Website.

Tenders are invited selectively from a shortlist of registered contractors, consultants and
firms that have all undergone a prequalification exercise.

Tenders received are opened publicly on the closing date of the tender and are forwarded
to an evaluation team approved by the Board.

The Central Tenders Board then reviews the evaluation reports prepared by the team. The
evaluation team may also be required to provide explanations of aspects of their report.

The Award of Contract is subsequently decided upon by the Central Tenders Board. In
the case of consultancies, the two-envelope system is used.

Letters of Acceptance are issued to successful bidders by the Central Tenders Board
Division.
8

In the case of major projects, the form of contract Agreement is prepared by the Chief
State Solicitor’s Office who formally arranges the execution of the contract Agreement
by parties to the contract.

All Contracts awarded are published monthly by the Central Tenders Board in the
Trinidad and Tobago Gazette and on the organization’s website. Copies of the Contracts
awarded are also submitted to the Auditor General.

The Client Ministry or Department is responsible for administering the contract.
However, the Central Tenders Board may become involved in this stage of the process
only if called upon to resolve a dispute or approve a variation to the contract outside of
the client’s jurisdiction.

A report is submitted to the Central Tenders Board, upon completion of the contract,
which in turn authorizes the release of performance bonds and the refund of deposits. The
Auditor General is responsible for financial audits.

Tender committees within the Client Ministries or Departments may act for the Central
Tenders Board within limits, as provided by the Central Tenders Board Ordinance (No.
22-1961, as amended). Such committees are chaired by representatives of the Central
Tenders Board and follow the procedures of the Division. In cases where the value of the
acquisition is below a certain limit, the committee has the ability to award the contract.

Permanent Secretaries and Departmental Heads can also procure goods and services
below a certain financial limit. All financial limits are defined in the Regulations, Rules
and Procedures of the Central Tenders Board.

Most statutory bodies, all State-owned enterprises and NIPDEC are fully responsible for
their own procurement procedures. Agencies/Bodies outside of the governance of the
9
Central Tenders Board may be engaged by government ministries as contractors for
major capital works.

State enterprises are required to invite a representative of the Central Tenders Board to sit
on panels considering Tenders above a certain level. The award of contracts by these
agencies is subject to monitoring by a Central Audit Committee, established within the
Ministry of Finance.
10
Chapter 3 - Discussion of the Principal Challenges to the
Development of Efficient Procurement Processes in the
Public Sector in Trinidad and Tobago
This chapter presents discussions of the principal challenges to the development of efficient
processes in the public sector in Trinidad and Tobago. Recommendations for overcoming these
challenges are provided where possible.
3.1 Design and Build Procurement System
Currently there is battle looming in the industry over the concept of design/build as the
preferred building construction delivery method. This method challenges what we have come to
accept as the norm, which is the system of design/ bid/ build or client design and tender where
the latter process involves the client hiring the architect and the architect assembles the design
team of engineers and quantity surveyors together. They prepare a preliminary design and cost
estimates in accordance with the client’s brief and instructions, and contractors are then invited
to tender.
This method of delivery for construction projects has been around since the 1500s with the
master carpenter/master-builder having full responsibility for the design and construction of
building projects. However, around the eighteenth century, the professional class of architects
and engineers replaced the master carpenter or master-builder of earlier times. The architect
eventually became the client representative taking charge of projects from conception to
completion including the outfitting of most projects with requisite furnishing. The system of
client
design-tender
then
took
root
as
the
preferred
method
of
delivery.
11
However, this process became very adversarial and confrontational between the owner, designer
and contractor - with much time and money being spent on litigation and or the avoidance of
litigation when projects failed to meet budgetary and completion schedules (Joseph 2008).
These failures were due to a number of factors, the main ones being:
i.
The inability of the architect and quantity surveyor to keep current with construction cost.
ii.
Incomplete design at the tender stage, resulting in final construction drawings that varied
greatly, both in scope and specifications, from the preliminary tender documents.
iii.
Client change orders during the construction stage, resulting in completed work having to
be demolished and rebuilt or materials already procured having to be replaced. This
problem, originates from a lack of meaningful communication between the client, the
architect and the contractor. Proper communication would allow for value engineering
during the process of construction or even at the time of tender.
iv.
Improper allocations of risks.
v.
Lengthy delays in decision making and providing information to the contractor.
vi.
Adversarial relationships between all parties resulting from some or all of the above.
The design/build method as we know it today was reintroduced to reduce the adversarial
relationship and increase the efficiency and cost effectiveness of construction project delivery by
having a single entity take responsibility for the entire project. This is actually nothing new to
the construction sector here in Trinidad and Tobago. This procurement system is one where a
single contract is awarded for the design and construction of the work to be performed. It
suggests that the client enters into contract with one agency for the complete delivery of the
project. This system is also referred to as a turnkey system or package deal (see Figure 3.1).
12
Design
Client
Construct
Design and Build – Joint Venture
Design
Client
Construct
Design and Build – Separate Departments
Figure 3.1: Design and Build Procurement System
This approach offers the following advantages (Suite n.d.)
i.
It facilitates greater unity between the two functions. It allows the design process to be
carried out just ahead of the construction process and therefore result in less time for the
project.
ii.
It removes the adversarial relationship which could arise in the traditional procurement
system.
iii.
It facilitates late changes in the design when they do arise.
iv.
This system is highly economic hence this leads to greater savings and a lower contract
price.
13
3.1.1 Challenges Faced by the Adoption of a Design and Build Procurement
System
3.1.1.1 Prohibition of Local Firm from acting as Main Contractor
The design and build approach is usually adopted by the government for the procurement
of large projects. As evidence suggests, this leads to improved project outcomes but it prohibits
an experienced local firm from acting as the main contractor due to capacity constraints (mainly
financial) and an inability to carry the additional risks. In most cases when this occurs, the local
firms and enterprises are used as subcontractors to subcontract sections of the work or to procure
supplies. The widespread subcontracting of local firms has a negative impact on the development
of an efficient procurement system within the public sector (Wells and Hawkins 2008).
3.1.1.2 Corruption
In the case of the design-build procurement method, the occurrence of corruption is likely
to increase because the entire process, as compared with that of the more traditional methods, is
less transparent with fewer opportunities for oversight by independent supervisors. The selection
process of a design-builder is itself an opportunity for corruption. It is often referred to as a
‘beauty parade’ because there is a variety of criteria such as design, cost, schedule, quality,
experience and financial resources that can be easily manipulated under the guise of a
supposedly transparent process to achieve any desired result. Whereas in the traditional methods,
the project stages such as pre-design, design, financing, planning and construction are
supervised/overseen by a variety of independent agencies and interests, in design-build the
project stages are reduced from five to three, or even less, thereby reducing transparency and
making it more difficult to supervise/oversee and to detect the possibility of corruption.
14
Corruption is another factor that contributes to the degradation of an efficient public procurement
process (Archibald 2009).
3.1.1.3 Integrity and Quality of Design
The fact there is an absence of independent scrutiny and supervision on the contractor
within a design and build system creates a source of concern. It raises curiosity towards the
integrity and quality of the design, the selection and use of materials and the general quality of
the works. Another area of concern deals with the liability of the design and build contractor.
While it does appear that the contractor should be liable for the design and construction, the
question rests with how will the client establish what is the nature and extent of the damage or
fault and hence the liability, particularly when these faults are not immediately apparent. The
concealing of faults and poor quality designs originating from the utilization of the design and
build approach in public procurement certainly affects the efficiency of the process (Suite n.d.).
3.1.2 Recommendations to Combat Challenges of Design/Build Approach
This section attempts to describe possible solutions to the problems encountered by the
design and build approach currently used by the Government of Trinidad and Tobago for the
public procurement process.
3.1.2.1 Joint Venture Design and Build Approach
In the case where local firms may be prohibited from acting as the main contractor as
seen in the design and build approach, a modification to this system can utilized as another
innovative way of creating opportunities for small contractors on a sizeable project. This
modification involves the formation of a joint venture (see Figure 3.1) between foreign
contractors and local contractors. An example of this system exists where the foreign firm is
15
employed as the management contractor and the local firm as the labour contractor. This
example is demonstrated in Zambia for the delivery of access roads. A hybrid
consultant/management contractor called an ‘Implementing Engineering Firm’ (IEF) was
appointed to execute and supervise the work, with supervision assistance form the district
councils. The IEF signed a contract for the works with the tender board and then contracted
small scale labour-based contractors to carry out the work. A total of 47 labour based contractors
were employed on the project and together they built 700km of gravel roads in five years at a
cost of around $7,000/km (Wells and Hawkins 2008).
This joint venture system is also depicted in the water projects in Trinidad and Tobago
where Mekorot Development and Enterprise Ltd. From Israel will work with the Water and
Sewerage Authority of Trinidad and Tobago to develop, plan and build projects worth $100
million. The work includes a project to improve the drinking water supply system, the overall
supply management, and upgrading water treatment plants. Mekorot Development and
Enterprise is already active in Trinidad. Last September, the company signed a consultancy and
training agreement with WASA, and in November an agreement was signed for developing
water management and carrier infrastructures (Barkat 2010).
3.1.3 Performance Based Contracts
Performance-based contracts (1) describe the work in terms of what is to be the required
output rather than how the work is to be accomplished; (2) place the responsibility for quality
performance on the contractor; and (3) stipulate formal and measurable performance standards,
including surveillance plans.
16
Performance based contracts is another way of promoting involvement of local actors in
the public procurement process as they expand the range of acceptable solutions and permit the
inclusion of indigenous technologies. They are also seen as having potential to reduce corruption
(Wells and Hawkins 2008).
Incentives should be included for cost-savings, improved financial accountability, and
effective use of sub-contractors where quality and cost-savings can be enhanced.
3.1.4 External Consultancy Services
In order to reduce the occurrence of flaws in publicly procured projects, the client i.e. the
relevant Ministry, Government Department or Statutory Authority should source independent
advice from a consultancy agency to vet the design and monitor the construction phase.
However, this option involves the client paying additional fees.
3.2 Alleged Corruption in All Stages of the Procurement Process
Experts identify procurement as one of the areas most prone to corruption in the construction,
health and education sectors. Corruption in public procurement:

affects the efficiency of public spending and donors' resources.

harms companies that produce goods and services as it increases operation costs,
reduces competitiveness and, in the medium term, is not good business.

leads to a distortion of fair competition, the waste of scare resources and the neglect of
basic needs, thus perpetuating poverty;

can give rise to massive market inefficiencies and, in the extreme, lead to the destruction
of development opportunities; and
17

can add 20-25% to the costs of government procurement and frequently result in inferior
quality goods and services and unnecessary purchases.
Contracting is the main way a government operates and public money is spent. In this sense,
contracts are the vehicles for implementing public policy. A significant portion of
construction, health and education expenditure goes to procurement or contracts for goods
and services. Preventing and controlling corruption in procurement is, therefore, a
determining factor in policy and project efficiency (Trinidad and Tobago Transparency
Institute 2008).
The Construction Sector in Trinidad and Tobago
The construction sector is the primary vehicle used by governments and aid agencies to
achieve physical development in developing countries and is the conduit through which billions
of dollars enter the national economy. Therefore, it is no surprise that construction procurement
acts as a magnet for persons wishing to illegally line their pockets.
Trinidad and Tobago is described as a developing country but we are not typical because
we rely less on aid than most other developing countries. This is because we enjoy a per capita
income of
US$14,000.00, the highest in the region, mainly due to the income derived from our hydrocarbon
resources. Our procurement rules, therefore, have been developed over the years more from self
regulation than from impositions from external agencies as is the case with most developing
countries. Nonetheless, in common with other developing countries, we rely very heavily on the
construction industry as the main vehicle in our development thrust. As a consequence, the
18
record shows that construction procurement has been one of the more fertile grounds for
corruption locally (Hart 2008).
3.2.1 How corruption operates in the Public Procurement Process
Corruption in public procurement can take the form of bribery, extortion, deception
(fraud) or simple abuse. The risks of corruption in public contracting can be more easily
understood in relation to each stage of a contracting process. Most contracting processes broadly
follow the same steps. It is generally believed that the risk of corruption is especially high during
the evaluation phase of a contracting process, when offers are studied in order to select the
contractor. But the risks are not limited to this phase. Corruption can occur even before a
contracting process starts, when decisions are taken about what to contract. Some projects start
off ear-marked for award to a particular party. There is also room for abuse once the contracting
process has finished and the contractor has been selected. Underperformance, contract
renegotiation, change orders, over-billing, and non compliance are just some of the forms of
abuse (U4 Anti-Corruption Resource Center n.d.).
The table below synthesizes some of the corruption related risks at each stage of the process:
Table 3.1: Corruption Related Risks at each stage of the Procurement Process
Stage A: Decision to contract ( identification of need)
Description
Main risks (examples)
The government decides to
purchase or sell goods or
services, or to outsource the
management of a unit.
The decision does not follow a policy rational or an existing need but
rather the desire to channel benefits to an individual or and
organisation. For example, demand is created for a good no one buys
simply to benefit the company's owner.
Stage B: Identification/definition of contract characteristics (technical requirements, characteristics of
goods and services, etc.)
Description
Main risks (examples)
The government determines
Characteristics (technical or not) are made to favour a special supplier
19
what it needs to buy or sell or
privatize (technical
requirements, specific
characteristics) and how it will
go about it (contracting method,
agency responsible, etc)
or contractor and not to properly address the need identified;
Exceptions to an open bidding process are abused, leading to single
source processes);
Participation of relevant stakeholders is limited, making it difficult to
assess the need and relevance of the characteristics as they are being
defined;
Evaluation criteria are not set from the start or are not objective,
thereby making them prone to abuse
Stage C: Contracting process
Description
Main risks (examples)
A contracting process opens. It
should take place according to
what method the law
determines be used to receive
proposals (e.g. open bidding
system) or evaluate contractors
(e.g. single source)
Invitation to tender (an open bid) is not publicised, thereby restricting
the number of bidders that participate;
When short-lists are used, companies bribe to be included or to gain
access to them;
Invitation to tender is publicised but very little time is given to
present offers, making it difficult for bidders without prior knowledge
of the contract to present bids;
Abuse of confidentiality or lack of publicity creates unequal playing
field for bidders;
In single-source processes, lack of publicity or transparency leads to
unjustifiable decisions;
Bidders or contractors collude to influence prices or to share the
market by artificially losing bids, or not presenting offers.
Stage D: Contract award
Description
Main risks (examples)
Contract process ends and a
decision is made in order to
select the winning bidder (in
open bids) or the contractor (in
single-source processes).
Evaluation criteria are not clearly stated in tender documents,
leaving no grounds to justify the decision;
Evaluation of bids is subjective or leaves room for manipulation and
biased assessments;
Contract awards are not publicised (nor the grounds for the
decision).
Stage E: Contract implementation and supervision
Description
Main risks (examples)
The contract is signed with the
selected bidder or contractor
Contract changes and renegotiations after the award are of a nature
that changes the substance of the contract itself;
20
Supervising agencies/individuals are unduly influenced to alter the
contents of their reports so changes in quality, performance, equipment
and characteristics go unnoticed;
Contractor's claims are false or inaccurate and are protected by those
in charge of revising them;
Subcontractors and partners are chosen in a non-transparent way, are
unaccountable or are used to channel bribes.
Additional Risks
Additional risks are created by confusing or contradictory legislation. In some cases, for
example, donor and credit agencies require their procurement procedures to be used instead of
national procedures. In some cases, this has been helpful; but in others, requirements for
transparency are higher under national legislation. In this case, an important tool to prevent
corruption is lost. An additional burden is created if the local implementation agency is not
familiarized with the donor or credit agency's guidelines, or if it has to simultaneously handle
several processes under different regulations.
Research has told us that corruption in procurement takes place because of - and is
worsened by - the following factors:
Size
Bribes are often calculated as percentages of the total sum, representing a proportional
relationship. Hence, the more money involved the more reason to demand a bribe.
Mystification
The more high technology involved, or seemingly involved, the more attractive the
project will be to the potential beneficiaries. This kind of "mystification" reduces the risk of
21
being criticized for paying too much. (For example: How many people can say whether a
particular fighter aircraft should have cost $21million rather than $23million?)
Immediacy
The term of office may be brief to many politicians, but also to officials. From this it
follows that the most attractive projects are those in which the full purchase price, or at least a
very substantial deposit, is payable at an early stage.
Discretion
The discretionary authority of public officials often represents a golden opportunity to obtain
bribes. Discretionary power is at its greatest when the public demand and the public preferences
are delegated to the public agent and defined during a bilateral bargaining process. Then the civil
servant is choosing the private part, while price and other contract conditions are the result of the
negotiation process. The discretionary authority includes

The power of invitation

The power of short-listing or pre-qualification

The choice of technology

Confidential information

Modifications of the contract

Bilateral negotiation of governmental contracts
3.2.2 Mitigation Strategies for Corruption in Public Procurement
It is possible to combat and prevent corruption in public contracting. There is now a
global consensus on the need to curb corruption that encompasses companies, governments,
donors and credit agencies and civil society organizations around the world.
22
For many years, it was believed that the only way to fight corruption in public contracting
was through law enforcement and control. While this is clearly necessary, it often comes too late,
after the damage has been caused. More importantly, corrupt behaviour should be prevented by
giving those involved in contracting the opportunity to avoid it and the pressure to do so.
Moreover, it is important to realize that there is no single solution to the problem.
Contracting processes need to be permanently monitored. Supervision and control play a key role
since good rules are necessary but not always enough to curb corruption. It is also important to
have clear and publicly available procedures and to have regular audits by external parties (U4
Anti-Corruption Resource Center n.d.).
3.2.2.1 Good Rules, Transparency and Monitoring
Good rules, transparency and monitoring are three elements that help to prevent corruption.

In the case of absent rules or rules which can be manipulated to one's advantage, donors
should assist governments in elaborating and enforcing procurement laws and procedural
guidelines which comply with international standards.

These procurement rules should at least minimize confidentiality, state open bidding from
pre-qualified suppliers as a principle, guarantee access to information, and make sure
bidding documents, procedures, evaluations and awards are publicly and timely available.
They should also establish administrative review systems, foster objective evaluation
criteria and provide structures for it. These rules should ensure that the different
procurement
functions
and
responsibilities
(selection,
quantification,
product
specification, pre-selection of suppliers and adjudication on suppliers) are divided among
23
different offices, committees and individuals, each with the appropriate expertise and
resources for the specific function.

Access to information can be provided through documentation and communication
systems, including online systems, where information can be shared with auditors,
complainants and the general public. Tools for improving electronic procurement systems
are supported by the World Bank and other donors.

Efficient management is one of the most effective preventive mechanisms. It promotes
transparency and accountability, facilitates oversight and citizen participation, and brings
legitimacy to governmental decisions. Rules that follow these principles also provide a
good basis to prevent corruption.

Written procurement procedures should outline the whole process, using explicit criteria
to award contracts.

Rules are not enough, however, and law enforcement mechanisms are often weak.
Monitoring by local experts and independent oversight agencies can help make existing
norms effective. Civil society also has an important role to play in monitoring.
Transparency International has developed and implemented a number of monitoring tools
to increase transparency and access to information that involve cooperation between
governments, companies, donors and civil society. Monitoring should also include an
annual external audit.

Donors can also promote integrity in the private sector, e.g. through information
campaigns for small and medium sized businesses. It is the latter who lose out in corrupt
24
procurement deals as larger firms can more easily afford to position themselves vis-à-vis
decision-makers.
Some contracting or procurement problems stem from inefficiencies in the contracting
system. Some tools that help to correct these inefficiencies may also prevent corruption and vice
versa. But this is not always the case. For example, speeding up the procurement process may
increase the risks of corruption if transparency and accountability are not assured. Conversely, a
strategy to prevent corruption, if not implemented appropriately, may introduce unnecessary
delays. This means that a careful consideration of impact and implementation should be
performed. Adequate training of procurement officers, the establishment of multidisciplinary and
multi-party evaluation committees, rotation principles for procurement officials and the
establishment of accountability and report procedures, are key in fighting corruption. Incentives
promoting 'good behaviour' for individuals are also needed, such as the performance-based staff
incentive structures. Systems usually plan punishment for 'bad behaviour', but experience proves
that rewards for good behaviour can motivate individuals. The development of codes of conduct
for staff is also extremely important.
3.2.2.2 Competitive Bidding
Competitive bidding includes a good public procurement system that can ensure fair
competition and best value for money. There is also broad agreement about the main elements in
a competitive bidding process; namely, it should feature:

Public notification of bidding opportunities

Documents that clearly set out the needs, describe the bidding process and contract terms
and conditions, and give the criteria for choosing the winner
25

Submission of secret sealed bids that are opened in the presence of the bidders at a
specified time and place

Impartial evaluation and comparison of bids by competent evaluators without influence
or interference by bidders or other parties

Award of the contract to the bidder complying with all requirements and offering the best
bid, as defined by the published selection criteria.
3.2.2.3 Political Commitment
Research has demonstrated that the fight against corruption must start with an explicit
commitment by the prime leadership of the country. Ending the pettier forms of corruption in the
bureaucracy is almost impossible if grand political corruption persists. Accordingly, political
commitment is a necessary condition for successful procurement reform.
An anti-corruption reform of the public procurement system depends on the political will
to disclose the state budgets, to extend the obligation to keep accounts, to establish external
monitoring systems and to improve public access to bureaucratic and political information.
3.2.2.4 Uprooting of Corrupt Relationships
Because the challenge in the arrangement of corrupt agreements is often the search for a
proper counterpart, an important anti-corruption strategy is to disturb these established, secret
connections, and further increase the transaction costs of corruption. Rotation of public officials
responsible for procurement is one possibility.
26
3.2.2.5 Simplification of Rules
It is important to make the underlying rules as clear and simple as possible, so that people
know what an honest system is supposed to produce. Uncertain and variable rules tend to create
opportunities for corruption. Information about areas of responsibility and degrees of
discretionary authority among public officials should for instance also be made accessible to
ordinary people.
3.2.2.6 Bench-marking and off-the-shelf items
The goods procured should be "simplified". Anti-corruption benefits are just one of
several economic reasons to prefer standardized products to more specialized custom-made or
"state-of-the-art" products. The state administration should apply private market prices as
benchmarks and specify their requirements in terms of standard off-the-shelf items. This would
reduce both the cost of procurement as well as the risk of corruption.
3.2.2.7 Supplementary Work
In particular construction, but to a certain extent also procurement, tend to become much
more expensive than envisaged in the first plans. This is a global problem.
Accordingly, the way additional work is specified in the contract is important. Does such
kind of work have to go through a new procurement procedure? Or is it supposed to be carried
out by the same enterprise? The latter might end up in a monopoly price if not prices of
supplementary work are determined in advance. And what is the definition of supplementary
work? These questions should be clearly answered in the procurement contract, while decisions
to change or supplement the project should be monitored with caution by officials external to the
centre in charge of the contract award.
27
3.2.2.8 Inspection
All kinds of procurement decisions have to be monitored in some way. For discretional
procurement decisions this represents a certain challenge. While elements like technical value,
times of execution, costs of utilization to some extent can be monitored objectively; there will
often remain an aspect of evaluation that is clearly individual. Also to enable inspection of these
judgments, specific objectives are the solution. When significant problems arise during
execution, a committee should respond, and not just one official.
3.2.2.9 Codes of conduct and rules of disqualification
Rules to ensure integrity make it easier for public officials to renounce corruption. Codes
of conduct are a "compulsory" part of any procuring institution. However, they should not just
remain on the paper, but characterize all forms of bureaucratic activity. A step in that direction
would be to include ethical standards in the legal framework. Codes of conduct are supposed to
serve as an obstacle for private interests to interfere with those of the government. Important
elements are the way gifts and personal benefits should be treated; forms of communication and
association with external agents involved in administrative cases; what to do when fraud or
corruption is discovered among colleagues; and what to do when uncertainty about these issues
arises.
3.2.2.10 Competition
Competition is usually efficient to curb corruption in procurement. Monopoly suppliers
are one element, but also monopoly providers of public services can be problematic. In a given
example where the office issuing drivers licenses frequently demands bribes, even when you
have all papers in perfect order, an idea could be to establish other public offices with the same
28
authority. That way you could address the office which doesn't add the extra price the bribe
money incurs. Competition in the provision of public services has in some cases been forwarded
as a possible solution.
3.2.2.11 Anti-Corruption Tools Developed by Transparency International
The following three anti-corruption tools have been developed by – or their development
facilitated by- Transparency International (Trinidad and Tobago Transparency Institute 2008)
Integrity Pact
The Integrity Pact (IP) is aimed at preventing corruption in public contracting. It consists
of a process that includes an agreement (entered into before bids are invited) between a
government or a government department (at the federal, national or local level) and all prequalified bidders for a public contract. It contains rights and obligations to the effect that neither
side will: pay, offer, demand or accept bribes; collude with competitors to obtain the contract; or
engage in such abuses while carrying out the contract. The IP also introduces a monitoring
system that provides for independent oversight and accountability.
Through the use of the IP, governments are able to reduce the high cost of corruption in
procurement, privatization and licensing arrangements. Successful implementation of the IP on a
major project can go a long way to restoring public confidence in a country’s public procurement
processes.
The IP has shown itself to be adaptable to many legal settings and flexible in its
application. In the case of Trinidad and Tobago, no new legislation is required for its
introduction. Obviously, the legal requirement will vary from country to country and that would
need to be examined locally. So far, the IP has been successfully introduced in about 20
29
countries around the world with some major success reported. Regrettably, despite lobbying by
TTTI, the government of Trinidad and Tobago is yet to use the IP on any of its projects.
Anti-Corruption Forums
Another tool promoted by TI is the infrastructure anti-corruption forum. This is a private
sector anti-corruption alliance between the infrastructure industry (represented by business and
professional associations and companies) and civil society (represented by TI and other
organisations with particular interest in the infrastructure sector). The forum agrees and promotes
anti-corruption actions in the infrastructure sector and liaises as necessary with government and
other national bodies.
In the UK an Anti-Corruption Forum (ACF) was successfully established in 2004. It is an
alliance of TI’s UK chapter with business associations, professional institutions and companies
with interests in the domestic and international infrastructure, construction and engineering
sectors. Over 1,000 UK companies and 200,000 engineers and construction managers are
represented on the Forum.
The purpose of the UK ACF is to promote industry-led actions which can help eliminate
corruption. The members believe that corruption can only be eliminated if governments,
financiers, business and professional associations, and companies working in these sectors cooperate in the development and implementation of effective anti-corruption actions.
The Project Anti-Corruption System (PACS)
The Project Anti-Corruption System is an integrated and comprehensive system designed to
assist in the prevention of corruption on construction projects. It uses a variety of measures
30
which impact on all project phases, on all major participants and at a number of contractual
levels.
The developers of PACS have started from the premise that corruption on construction
projects is a complex problem. It may occur in the form of bribery, extortion, fraud or collusion.
It can take place during any phase of a project, including project identification, planning,
financing, design, tender, execution, operation and maintenance. In each project phase,
corruption may involve any one or more of the participants i.e. government, state enterprises,
project-owner, financiers, consultants, contractors, sub-contractors, suppliers, joint venture
partners, and agents. It may occur at any level of the contractual structure.
PACS is modular system comprising:

standards that recommend anti-corruption measures which should be used on
construction projects; and

templates that provide the tools by which the measures recommended in the PACS
Standards may be implemented.
A government, a public or private sector project owner, or a funder can:
a) assess its existing project anti-corruption measures against the PACS Standards;
b) modify its existing measures in accordance with the PACS Standards; and/or
c) use some or all of the PACS Templates, appropriately customised, in order to implement
its anti-corruption measures.
31
3.3 Presence of Foreign Contractors
In most developing countries the construction sector plays an important role in the developmental
process. Developed countries can also derive the benefits of the construction industry. Construction is a
major consumer of products from the primary sector as well as the manufacturing sector. The construction
sector provides critical backward and forward linkages.
The sheer size of the market in construction presents significant opportunities for competent firms
and individuals no matter where they are based or their size, provided they have the necessary interest,
opportunity and support. However, like in other countries, regional firms must receive support politically
and economically from the Governments of the region.
It is claimed that firms within the Caribbean Community (CARICOM) are not as competitive as
they should be against firms from other parts of the world. However a significant number of professionals
in the region are of the opinion this may not always have to do with elements of industry efficiency per se
and that the support, subsidies and incentives (albeit often hidden) available to foreign firms create unfair
terms of trade and are largely responsible for the imbalances in ‘competitiveness’ as measured by winning
international competitively bid contracts. The region is also faced with the phenomenon of cheap labour
from countries such as China and questionable working conditions.
3.3.1 Chinese Experience in Trinidad and Tobago
The Chinese presence began elsewhere in the region. Their presence was evident with the design
and construction of the sporting facilities for the hosting of the Cricket World Cup matches. The Chinese
construction company – Shanghai Construction, was introduced to Trinidad and Tobago with the design
and construction of the Prime Minister’s residence and diplomatic centre at cost of nearly TT$150
million. It has since expanded further locally with the design and construction of cultural centres
in Port of Spain and San Fernando and government office buildings and even houses in Tobago.
In some cases, the Government of China has financed these projects at concessionary terms.
32
There has been at least one report in the local press that a private developer was also using
‘Chinese labour’.
Several issues arise from this development in the region. Issues that relate to the
importation of a foreign design style and culture, the displacement of local consultants,
contractors and labour, the importation of materials that are usually available locally, the use of
materials that may not satisfy local construction codes, the absence of independent supervision
and certification of the designs and construction works, that the Chinese are supposed to be
delivering projects much faster and more economically than local contractors (Lewis and Imbert
n.d.).
Lack of Transparency
The Chinese projects fail the ‘transparency’ test because the details of the contractual
arrangements between government and the Chinese contractors are being treated like state
secrets. There has been no disclosure to the public, or to Parliament, of the contract terms.
Generally, there has been no consultation by government on the proposed plans. The designs of
the Cultural Centres in T&T have been finalized without design inputs from the facilities
intended users. After much lobbying, very limited consultation took place, after the fact, and
resulted in delays to the projects because of the resulting need to go back to the drawing board.
In the case of the Prime Minister’s Residence and Diplomatic Centre, no stakeholder
consultation took place.
Lack of Accountability
The Chinese projects fail the ‘accountability’ test because there is no overseeing of the
contractor’s work by independent competent local professionals. In the case of the the Prime
33
Minister’s Residence and Diplomatic Centre, there was an electricity outage during the first
function, the tour by media and special guests. If press reports are correct, the outage was the
result of the electrical design and installation not meeting the standards of local codes. Further,
the Electrical Stand-by Generator is reported to have failed to operate as intended because of
design faults.
Value for money
It is impossible to determine whether Trinidad and Tobago is receiving value for money
from the Chinese awarded projects, simply due to the lack of information. It can be deemed that
they fail to deliver value for money. This conclusion can be drawn from the following
observations:

Firstly, in most cases, the Chinese contractors are not made to tender in competition with
local or regional contractors, therefore, no one is sure if contracts are awarded for the best
price. The international norm is that competitive tendering is a prerequisite for ensuring
value for money and every credible funding agency such as the World Bank etc. insist on
it but for exceptional circumstances.

Secondly, an important part of the ‘value for money’ equation which has not been met is
the transfer of technology from the foreigners to locals. There was a failure in the
appointment of local understudies on any of these projects. Therefore, when the Chinese
labourers depart, Trinidad and Tobago may be left in a situation where we may
experience difficulty in maintaining buildings due to the lack of sharing of first-hand
knowledge with the locals.
Further, maintenance of the buildings will require the
sourcing of materials and equipment that are not readily available in the local market.
34
These two issues have raised concern as to whether the Chinese contractors are receiving
preferential treatment not enjoyed by local contractors (Trinidad and Tobago Transparency
Institute 2008).
It can be concluded that the high influx of foreign contractors stifles the expansion of local content.
This means that it reduces the chances for local people to earn income through employment on the
construction site or in the supply industries. It also reduces the opportunities for local businesses as
contractors, subcontractors, producers or suppliers of material and equipment and increased local
knowledge and skills. Procuring services and goods from local contractors and suppliers and using
techniques adapted to the local resource endowment, will generate income locally and make a substantial
contribution to economic growth.
3.3.2 Local Contractor Praised
The reputation of local contractors in Trinidad and Tobago is at such a deplorable state
that when a local contractor succeeds to deliver a project on time, their performance is well
recognized and appraised. According to the article “Local contractor praised” dated 22nd
September 2009, a local contractor Sharoz Enterprises Lrd. was commended by the Minister of
Legal Affairs for delivering of St. Mary’s Primary School on time and within budget despite
Government’s preference for foreign contractors (Bethel 2009). This gesture by the Government
indicates the extent at which the potential of local contractors is viewed by the public.
3.3.3 Recommendations
Leveling the Playing Field
The following describes recommendations and alternatives that should be introduced into the
public sector (Lewis and Imbert n.d.).
35

Avoid combination/multi-stage contracts, which make them too big for local firms, for example,
financing, construction and installation works as in major turnkey contracts. Disaggregate very
large projects into multiple contracts where feasible so that

Established protocols for consortia of local firms and joint ventures between local and foreign
firms for adequate technology transfer and equitable sharing of risk, responsibility and profits.

Review pre-qualification criteria, particularly the weighting given to ‘local experience’, which
should be significant.

Promote the use of uniform standards and specifications relevant to the region. Legislation is
needed to codify building codes and expeditious approval of plans.

Facilitate access by local firms to funds to enable interest rate equalization and in the provision of
insurance and bonds to alleviate disadvantages of the small size of the economy and firms.

Address the issue of unfair tax concessions for foreign consultants and contractors.

Restrict the right to Commercial Presence by a foreign firm when this can be shown to be
detrimental to local firms.
Local firms need to collaborate, as consortia or joint ventures where appropriate, with other firms to gain
size and financial strength to compete for larger contracts.
Institutional Strengthening

Local associations need institutional support for the further development of the professional
bodies (e.g. tax-free status as a charitable body).

Professional associations should have institutional representation on Boards of Directors of
engineering related public sector institutions.

Government regulatory/approval agencies need strengthening with adequate professional
resources.
Training and Recognition of Qualifications

Strengthen technical and technology-based training in the region.
36

Promote standardization of technical and technology-based training in the region.

There is a need for an agreed standard for accrediting skilled artisans, tradesmen and craftsmen.
This is the responsibility of the Caribbean Association of National Training Agencies (CANTA).

There should be mandatory local registration of all professionals and firms as a precondition for
offering construction and installation services in the region.

For regional equivalency and reciprocity, it is necessary that similar registration legislation be
enacted in each country.

The Caribbean Accreditation Council for Engineering and Technology (CACET) should be
established as soon as possible and become a member of the Washington Accord.

There is a need for a system for reciprocal recognition of similarly registered and licensed
professionals from other countries or regions.

Limit foreign personnel to professional and senior supervisory staff.
Information Flow and Access
Both Governments and the private sector organizations have a responsibility:

To facilitate and encourage information flow through the local sector, especially documentation
and access to project proposals and data.

To carry out further studies into the performance of the construction sector for baseline data on
construction costs, educational and training programmes and human resources in the various
categories of skills.

To initiate a process whereby Governments, developmental and lending agencies would provide
information on development plans, proposals and tenders.

To establish and maintain an up-to-date website on the Caribbean Single Market and Economy
and trade negotiations and agreements and their implications for the regional industry.
Modified Procurement Strategies
37
The Government of Trinidad and Tobago adopted a meticulous tendering process for the
procurement of the Interchange Project along the Uriah Butler Highway. This strategy involved a
delay in the process of approximately six months to allow local contractors to participate in the
project by entering into joint ventures with their foreign counterparts. This effort to include the
local content into the project proved useless because not a single local contractor submitted a bid.
After considerable due diligence and independent verification a contract was signed with foreign
contractor Vinci. Although this attempt was not successful, this strategy can be adopted for
future projects as a method for improving the efficiency of public procurement (Tack Chan
2009).
38
3.4 Public Sector Procurement Process
Since as early as 1987 there have been several attempts to reform the current public procurement
process. Weaknesses in this process include (Ministry of Finance of Trinidad and TObago 2005):
3.4.1 Deficiencies in the Legal and Regulatory Framework
The existing procurement legislation is considered archaic by all stakeholders and in need
of major reform if it is to meet current needs and to conform to current best practice. The
underlying principle of accountability in the CTB Ordinance was compromised by prescribing
the CTB as the procuring agency of the State, while at the same time limiting its activities mainly
to the tendering stage. The processes, as prescribed particularly in relation to the award of
contracts, do not reflect involvement in the full procurement cycle. (see Figure 2.1)
The critical decisions involved in spending public money for property and services are
made at step 1 of the procurement cycle. These decisions permeate the process and affect the
award of the contract. In law, the CTB has no direct involvement in the design of the Terms of
Reference (TOR), nor the preparation of Requests For Proposal (RFPs), nor the monitoring or
the execution of the contract. Further, after the award of a contract, all matters that are dealt with
fall within the domain of contract law to which the CTB cannot be a party.
Even within its realm of responsibility, the CTB in many cases refers the documents back
to the client Ministry/Department as a consequence of obvious faults, which appear to predispose
a particular outcome in contradiction to the principle of fair competition, and compromises the
integrity of the procurement process. As a consequence, the process is often delayed.
Some contractors, suppliers and consultants share the view that there are too many stages
in the procurement process, especially where it is necessary to go back and forth from CTB to
39
client. They argue that the resultant delays affect tender prices and more often than not justify
price increases since the validity period of three months expires before a contract is awarded.
Because of concerns that the procurement procedures are outdated, different forms of
project delivery systems such as Design Finance Construct (DFC), Build Own Lease Transfer
(BOLT) and Build Own Operate Transfer (BOOT) are used to shorten the procurement cycle.
The Ordinance does not apply to tendering on financial matters and as a result does not
accommodate these systems. These limitations effectively put the procurement activity of these
projects outside the ambit of the CTB.
In addition, amendments to the CTB Ordinance have led to the use of off-budget
arrangements and the proliferation of procurement activities not covered by the legal and
regulatory framework.
3.4.2 Absence of Uniformity in the Tendering Process
State-owned enterprises and NIPDEC are fully responsible for their own procurement
activities. These procuring entities tend to use their own standard bidding documents (SBD’s)
and procedures, thereby creating unnecessary parallel systems. While the CTB has striven for
uniformity in the tendering process, in practice this uniformity has not been achieved. The net
result is a complete lack of standardization at all levels of the procurement cycle, and particularly
so in the standardization of bidding documents. Standardization is an essential prerequisite for
the utilization of digital technology and the modernization of organizational processes.
3.4.3 Human Resource Limitations
The current staffing and training of the CTB’s personnel constrains the organization’s
ability to adequately service ministries and departments. The organization is restricted also in its
ability to be current with present practices in a rapidly changing technological environment.
40
Currently, the office of the Chief State Solicitor prepares all major contracts in the goods,
works and services areas. However, it is neither staffed nor structured to deal efficiently with the
volume and complexity of the work involved or with rapid changes in technology contracts. This
contributes to delays in the preparation and execution of contracts and is a major deficiency in
the system.
Many State-owned enterprises, NIPDEC and Statutory Bodies, also lack staff properly
trained in procurement. In fact, procurement is not looked upon as a professional discipline in its
own right.
3.4.4 Lack of Regulatory Oversight
The partially decentralized nature of the current system extends the contracting authority
among the various players without providing adequate monitoring. Cabinet has authority to
direct Ministries/Departments to use selected State-owned enterprises under Section 20A (1) (c)
of the Ordinance thereby bypassing the regulatory oversight of the CTB. In most cases, these
companies lack the technical capability to conduct the activities under contract and award subcontracts using their own procurement rules and procedures.
The CTB does not have the authority to regulate. The regulatory procurement framework
lacks the authority to audit the procurement system and ensure compliance with the rules and
procedures for the award and implementation of contracts. However, under the
Constitution, the Auditor General is responsible for auditing and reporting annually on public
expenditure matters.
41
3.4.5 Absence of a Complaints Mechanism and Dispute Resolution
Although the CTB receives and acts upon supplier complaints with respect to the
procurement process, there is no formal independent complaint and dispute resolution
mechanism in place.
3.4.6 Lack of National Registry
Each procurement agency keeps its own register for inviting bids, and uses its own
procedures for prequalification registration. There is no national registry of contractors,
consultants and suppliers. The absence of such a registry creates additional work for consultants
and contractors by having to register with the various agencies.
3.4.7 Lack of an Electronic Public Information System
There is no system in place to provide suppliers or the public at large with full, up-to-date
and electronically accessible information on tender opportunities, the publication and status of
bids and awards, or the progress of major projects.
3.4.8 Concerns of Local Suppliers
Notwithstanding the Government’s stated objective of supporting the development of
local industry, local contractors, consultants and other suppliers do not believe that they are
being fairly considered in the tendering process. There are concerns that some SOEs negate fair
competition by the use of the selective tendering process without due regard to the
prequalification or registration criteria. The Ordinance does not stipulate any guidelines or
restrictions limiting the use of this method of procurement.
42
3.4.9 Poor Data Collection and Reporting
Procurement records are maintained by both CTB and State-owned Companies. There is no
minimum requirement, however, on the contents of such records and the maintenance period that
is applicable to all procuring entities. Furthermore, there is no adequate centralized reporting of
the awards of government contracts.
3.4.10 Current Best Practices
In response to the evolving complexities of the global marketplace, many countries are
reforming their governmental procurement systems. These efforts are leading to general
agreement on what constitutes good public procurement practice. An analysis of these reform
efforts suggests that any system of public procurement should:

be efficient and reflect best business practice;

be publicly acknowledged as fair, open and above reproach;

involve civil society as a check and balance to ensure transparent practices;

be ethical: the conduct of all parties must be that of mutual trust, respect and integrity;

promote competition and not discriminate;

promote the competitiveness of local business;

clearly identify relevant decision-makers; and

be alert to the impact of technology in the marketplace and avoid bureaucratic red tape;
3.4.1 Operating Principles for Best Procurement Practice
Based on a survey of a number of reformed procurement systems in the Commonwealth,
including Jamaica and Australia, and those in operation by multilateral financial institutions,
some core operating principles which characterize these systems have been identified. These
43
principles are primarily Value for Money, Transparency and Accountability. They redefine the
economic concerns, identify with the public interest, and impact the procurement process. How
these principles are implemented in best practice is outlined below.
3.4.1.1 Value for Money
Value for Money in the context of current best practice in procurement means the
attainment of the best combination of price and quality to meet the particular need in the shortest
possible time. It is essential that procurement attains the best quality of property and services for
the price that is paid, or the lowest price for the acceptable quality of property and services. It
does not necessarily result in the lowest priced goods available or the absolute highest quality
available. It is the best combination of price and quality to meet the particular need. An
assessment of Value for Money must take into account not only the immediate cost of property
and services procured, but also:
the performance of the suppliers in meeting their contractual obligations, quantitatively and
qualitatively;
financial considerations including the source and cost of funds;
the cost of maintenance support; and
the anticipated price on disposal.
In other words, life cycle costing must be done as part of the evaluation process leading
to the recommendation for award. Measures which might be employed to effect Value for
Money include:
Undertaking of value analyses for contracts over a specified limit;
Public consultation on the rationale and elements of major projects during the design phase
before the bidding documents are finalized;
44
Greater use of standard clauses in Conditions of Contract;
A registration system of endorsed suppliers, contractors and consultants who get preferential
consideration for contracts by virtue of that registration after a thorough prequalification or
evaluation exercise;
Prompt payment of suppliers, contractors and consultants by Government agencies and the
introduction of penalty interest in the event of late payment;
Monitoring of the execution of large contracts by civil society;
Coordinated purchasing by Government departments to take advantage of volume discounts
(bulk purchasing);
The use of measurable criteria to determine the best combination of price and quality.
3.4.1.2 Transparency
Transparency through internal and external scrutiny is an essential element of
accountability and should be an inherent characteristic of all processes and procedures, plans,
actions or decisions relating to procurement. Given that procurement systems are a key indicator
of the prevailing culture of governance, it is a generally stated imperative of reform that
procurement systems be transparent, particularly with respect to details of bids and awards.
Best procurement practice requires that all information regarding the process be in the
public domain. The potential suppliers of property and services must have full access to
information on procurement requirements, rules and decision-making criteria. Bids are opened
publicly and all decisions are fully recorded and published. The public is therefore able to debate
the rationale of projects, particularly the large ticket items or those of strategic importance, and
to monitor the implementation of contracts awarded.
45
Some measures employed in other jurisdictions to incorporate the principle of
Transparency into the procurement process are:

public reporting, of all business opportunities in an adequate and timely fashion and in a
separate gazette, for example a Procurement and Disposal Gazette, and the Internet;

greater use of e-procurement;

reporting of details of awards, agreements, and reasons for selection of the supplier,
contractor or consultant;

oral debriefing of all unsuccessful bidders by the awarding agency;

public access to details of different tendering procedures;

incorporation of the draft Agreement and/or Contract in the tender documents;

publication of bids and awards with price;

incorporation of specified ethical standards and codes of conduct into the Terms of
Reference, Requests for Proposal, tender notices and letters of invitation
3.4.1.3 Accountability
In the context of current best practice in public procurement, officials of buying agencies
are not only clearly identified but are held directly accountable within the framework of
ministerial responsibility to Government, Parliament and the public. In conducting their duties,
they are protected from the undue influence of the Executive.
They are obliged by law to ensure that their procurement practices reflect the policies and
principles that are specified. In addition, they are subject to heavy penalties and personal liability
if the policies and principles laid down are not manifested in transactions involving public
money.
46
Some measures in current best practice to incorporate the principle of Accountability in
procurement are:

all interested parties are required to sign a joint undertaking guaranteeing the integrity of
the process and accepting sanctions in the event there is a lapse, arbitration in the event of
disputes, and monitoring by a third party such as a civil society body;

identification of contact persons and relevant decision-makers together with details of the
extent of their authority and contact information;

keeping of proper auditable records, which can be scrutinized at any point of the process;
and

instituting and enforcing heavy penalties for parties in transgression as well as adverse
publicity and debarment from future consideration both in their corporate and individual
personas.
3.4.2 Legislative Models Effecting Current Best Practice
The Prescriptive Model
The UNCITRAL model law typifies this model. It prescribes in detail for the purchaser
as decision maker a range of procedures for different types of transactions that reflect the
principles of value for money and good governance. Some consider this model to be a more
relevant and sophisticated version of the current model of the CTB Ordinance. Like the
Ordinance, it does not address the contract implementation phase. Modification of any of its
provisions requires Parliamentary approval. This results in some operational rigidity making it
less suitable for a rapidly changing environment.
Generally the provisions in the UNCITRAL Model Law treat in detail with the process of
solicitation, pre-qualification proceedings, submission of tenders, evaluation of tenders, principal
47
methods of procurement, and alternative methods of procurement such as two-stage tendering,
competitive negotiations and single service procurement.
The Institutional Model
This model, reflected in the Contractor General Act of Jamaica, concentrates on
establishing the institutions involved in managing Government contracts together with their
reporting relationships. The Jamaican law establishes the office of Contractor General as a
Commission of Parliament to ensure that the award and implementation of Government contracts
do not involve impropriety or irregularity. It constitutes the National Contracts Commission to
promote efficiency in the award and implementation of contracts. Specification of procedures
and monitoring are the responsibility of these institutions. The law does not explicitly adopt the
core principles of value for money, transparency and accountability nor does it explicitly draw
the link between procurement and policy objectives. The emphasis is on investigation and
sanctions.
The Principle Model
The conceptual basis of the legal framework of this model is the ethical use of public money
and public property by an agency within the prescribed principles of Value for Money,
Accountability and Transparency. The legislation, in addition to prescribing the principles, also
establishes the broad parameters that promote best procurement practices. This is achieved by the
development and implementation of mandatory guidelines which are amplifications of the
operating principles, and address issues such as:

the requirement that procurement specifications are rendered in functional and
performance terms;

means of improving the cycles of competitive tendering and contracting;
48

determination of Value for Money;

achievement of good governance;

bonded suppliers in the case where the prime responsibility for procurement resides with
individual buying agencies;

preferential treatment afforded to local suppliers;

open and effective competition which would include public notification of opportunities
and of evaluation criteria to be used in the bid process;

public consultation on major contracts;

review of the procurement process at critical points of the procurement cycle;

a joint undertaking by all parties to comply with an agreed code of ethics;

publication of details of contracts;

an endorsed supplier system; and

the impact of other policies, such as those pertaining to national competitiveness and
industry development, on the procurement process.
3.4.3 The Preferred Procurement Model
3.4.3.1 Introduction
The emergence of the global economy, increasing decentralization of Government
functions, greater discretionary powers of public officials, the disparate objectives of public
procurement, and the weaknesses of the current system have led to the need to regulate
procurement in new ways.
While the attainment of Government’s policy objective is conventionally through the
operation of Government Ministries and Departments, the trend increasingly is towards the
49
achievement of public objectives through contractual arrangements with State-owned enterprises,
statutory bodies and private organizations, incorporated and unincorporated.
Any discussion for a preferred procurement model for Trinidad and Tobago must
therefore acknowledge the increasing use of these bodies and agencies as a common means of
achieving Governmental objectives.
The success of the procurement system depends on a clear articulation and understanding
of what the legal and regulatory framework seeks to achieve. The framework must reflect the
various objectives and the relative weights given to these objectives. In the context of Trinidad
and Tobago, these objectives must include:

value for money in public spending,

greater public accountability,

promotion of greater transparency in public procurement,

consistency with and support of government policies,

effective and efficient contract performance,

balance between a commitment to develop local businesses and the need to

provide a level playing field, and

a trade-off between control, rules, regulations and accountability on the one hand,

and efficiency, flexibility, judgment and innovation on the other.
A regulatory framework that accommodates the demands of these objectives is the Principle
Model, appropriately modified to take into account the domestic environment.
The underlying philosophy of the Principle Model is that once a body is spending public money
there follows an obligation on that body to account for Value for Money – which by definition
encompasses efficient and effective delivery of the property and services for which public money
50
is spent. It is the use of “public money” that determines the degree of public accountability for
expenditure – not the institutional or organizational framework of the spender.
Critical to the new procurement regime is therefore a clear understanding of “public money”
which, as articulated in legal models reflecting current best procurement practice and effective
accountability, encompasses:
a.
all money received by a public body, regardless of source; and
b. all money received by a non-public body, from a public body.
The legal framework will embrace expenditure by –
a. a public organization for a public or private purpose; or
b. a private organization for a public purpose regardless of the source or type of funding
where it can be reasonably inferred that the State is ultimately liable.
In addition, public accountability may exist for private money where that money is used for a
public purpose even though the spender may be a private organization generally raising funds
independently of the State.
The test lies not with the mode of incorporation or even the extent of public control or
funding, but whether or not it can be reasonably inferred that the ultimate financial responsibility
is to be borne by the State.
3.4.3.2 The Preferred Model
Government’s policy, as articulated in Vision 2020, is for greater transparency and
accountability in public sector decision-making, and best practice in public procurement.
The proposed new procurement regime must deal therefore with all components of the public
procurement cycle and affect all involved in public procurement without fear or favour.
51
From this perspective, the Principle Model, appropriately adapted to the economic, social and
political environment of Trinidad and Tobago is the preferred model. It provides an overarching
framework for all agencies involved in procurement using public money with immutable
parameters in which the operating principles and guidelines are not negotiable.
This Model addresses many of the weaknesses with the current system:
It recognizes the validity of the tendering process of agencies while providing an overarching
uniform system which affects all transactions;
It increases openness and accountability, thereby enabling greater scrutiny by the public;
It enables stakeholder participation in the development of policies and guidelines;
It enables flexibility to accommodate technological change;
It removes ambiguities in the reporting relationships and strengthens Parliamentary oversight
of public expenditure in procurement;
It enables greater monitoring of contract execution;
It provides a specific dispute resolution mechanism and proposes clear sanctions in the event of
breach.
3.5 Funding
Funding is one of the difficulties encountered by local enterprises (many of which are
small) in accessing the public procurement market. These include the high fixed costs of access
(regulation and prequalification costs), the high costs of tender information, the policy of
bundling contracts which favours large firms and financial constraints. The most critical
constraint to local construction firms winning contracts is lack of access to capital, particularly
working capital. One of the key advantages of Chinese contractors in construction markets is
52
their ready access to cheap finance from state owned banks. Foreign contractors often get tax
concessions on imported materials and equipment, concessions which are denied to domestic contractors,
particularly in construction. In a recent study, Ghana contractors complained of having to pay import
duties and VAT on metal framework imported from Spain, while foreign contractors can bring in such
items duty free (Wells and Hawkins 2008). The above factors combine to ensure that providers of
construction services from the least developed countries are often unable to compete for projects in their
own home markets. While supply side assistance is also needed, the fact remains that lack of access to the
market is the most critical factor inhibiting the development and growth of many small local producers.
3.5.1 Recommendations
The following list includes solutions that Government can adopt in order to get more local
contractors involved in the public procurement processes.

Waiving or lowering the requirement for performance bonds

Lowering the cost of accessing tender information by either charging for the cost of
reproducing the documents or supplying the documents free of charge

Introducing a prompt payment regime

Providing cash advances
Government should also consider separating the purchase of materials from the provision
of labour services as this may give better outcomes in terms of utilizing local contractors and
suppliers. It would open up the public procurement market to the large number of labour
contractors who do not have the capital and are not willing to take the risk of supplying
materials. At the same time it would give the client greater control over the source and quality of
53
materials. This approach, however, requires strict controls on the purchasing, storing and issuing
of materials.
3.6 Weakness of Local Contractors’ Organization, Registration,
Management, Labour, Skill, Familiarity with New Technology
Required for Mega Projects
Incompetency in local contractors’ organization, registration, management, labour, skill,
and familiarity with new technology required for Mega projects is as a result of the level of
procurement experience and expertise in local actors. A quick review of Trinidad and Tobago’s
current local environment reveals that in this very heated construction industry with demand
exceeding supply for construction services there exists a high mobility of critical resources
(professionals, skilled and unskilled labour moving from company to company) and low
investment in systems and skills development by consultants/contractors to increase capacity.
Local contractors in Trinidad and Tobago currently exhibit the following features which prove to
be a hindrance to the development of efficient public procurement processes.
 Limited utilization of project management best practices
 Lack of expertise in certain specialized fields e.g. hotel renovations, smart buildings
 Greater affinity to “good enough” than “excellent”
 Lack of consequence and project recovery
3.6.1 Registration
A possibility exists that the local contractors are not familiar with the registration process
which ,may discourage local contractors and suppliers from tendering for public projects, This
54
dilemma is due to the absence of a system to efficiently provide suppliers of property and
services and the public with all the relevant.
3.6.2 Management
A failure of local contractors to adopt project management best practices can result in
foreign contractors being favoured by the Government. There practices mainly focus on efficient
resource and time management. It is known that local contractors in Trinidad and Tobago are
always busy, their resources are stretched and they fail to keep project delivery schedules and
cost overruns. Misuse or failure to implement project management strategies can result in poor
and inefficient public procurement processes.
3.6.3 Labour
Mainly in the construction sector there is a shortage of labour, this problem poses a
disadvantageous situation to local contractors in that they stand the chance of being offered a
sub-contractor role to the foreign contractors.
3.6.4 Skill and Familiarity with Mega Projects
Britain’s Major Projects Association (MPA) defines major projects as “those which require
knowledge, skills or resources that exceed what is readily or conventionally available to the key
participants” (major Projects Association 2008). It is with this stipulation that the Government is
forced to procure mega-projects to foreign contractors since local contractors fail to posses the
required set of skills and knowledge for handling this type of project. Some recent mega-projects that
were awarded to foreign contractors include (Gumbs-Sandiford and Anika 2010):
 Shanghai Construction Co:
1. NAPA (north) $480 million and south $600 million
55
2. Outdoor stage at the St Ann’s residence of the prime minister – $10 million
3. Carnival Entertainment Centre – $450 million
 Vinci Construction:
1. Interchange along the Uriah Butler Highway – $166.7 million.
 China Railway Construction Corp:
1. Completion of the Scarborough Hospital – $241.3 million
 Genivar:
1. Port-of-Spain International Waterfront – $18 million
3.6.5 Recommendations
The following include strategies that can be adopted to improve the skills and competence of
the local contractors.

Government can devise a plan for the transfer of technology and building skills from the
foreign contractors to the local contractors

Benchmarking – In cases where a similar project exists in the world, the Government can
find out about the experience of those that have done it before; what worked; what failed
and why.

Investigations on a contractors’ workload and resource availability should be made prior
to tender invitation

Implementation of a system to efficiently inform contractors on the required registration
process

Establishment of programmes that enforce the use of project management best practices
and training in these areas should be offered to local contractors
56
Chapter 4 - Conclusion
The analysis of the challenges faced by the current public procurement system in Trinidad
and Tobago revealed its weaknesses and it also addressed possible outcomes. It was noticed that
there is a high level of integration and overlapping of the challenges and the recommendations
for one particular challenge may in fact eliminate the occurrence of another. For instance, the
presence of foreign contractors is highly related to the fact that local contractors are unable to
fund projects. Therefore, a solution to the funding issue will reduce the need for foreign
contractors which can further lead to a boost in the local content of Trinidad and Tobago and the
entire public procurement system.
57
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