The Public Contracts Commission Bill, 2021

It has been an open secret that there is certainly need for reforms as it pertains to Belize’s key oversight mechanisms. Among the bodies that have been recognized as requiring significant institutional strengthening are the Public Accounts Committee, the Auditor General’s Office, and, yes, the Office of the Contractor General.

Actually, as was discussed in an October 2020 Business Perspective (BP) entry, the Belize Chamber of Commerce and Industry (BCCI), the Network of NGOs, and the National Trade Union Congress of Belize (NTUCB) had teamed up last year to address these very issues. Crystallized via the September 25^th signing of what the trio calls the “Joint Declaration of the Social Partners of Belize (SPoB) for Reform of Essential Oversight Mechanisms to Strengthen the Democratic Governance of Belize”, the partners had agreed to take measures to “bring about the reforms that guarantee the true independence of oversight institutions”.

It is for this reason that the new Public Contracts Commission Bill (2021) is worthy of special attention. As the Bill’s preamble sets out, it is aimed at establishing the “Office of the Public Contracts Commission to monitor the award and implementation of public contracts for the purpose of ensuring that such contracts are awarded impartially and on merit; to investigate fraud, corruption, mismanagement, waste or abuse in the award of public contracts.”

If passed in its current form, the Commission would have five members. One member would be appointed by the Leader of the Opposition, and another would be a “civil society Senator”. In terms of the latter, the Senator would be selected from “among the civil society Senators on a yearly rotation.” The remaining three members would be designated by the Minister of Finance, the Minister responsible for Public Service, and the Attorney General.

Beyond its composition, however, Section 3(4) serves as possibly the most conspicuous signal for the changes proposed under the Bill. In the aforementioned section, the Bill reads: “For the purpose of the discharge of its functions, the Commission may delegate, by Order published in the Gazette, any of its powers to, and impose any of its duties on, the Contractor–General.”

Now, while this current installment of the BP column is not intended to opine either in favor or against the changes, it must be underscored that under the current Contractor General Act, the Office was deemed to “not be subject to the direction or control of any other person or authority.” However, section 20 of the new law—which would replace the existing Act—aims to change that by deeming the Contractor General to “be subject to the direction or control of the Commission”.

Fundamentally, under the proposed new law, the Commission would absorb most of the duties and powers traditionally bestowed upon the Contractor General. In so doing, the Contractor General’s powers would now be sourced from the Commission. These changes would suggest that the government may be attempting to bring the structures of this oversight body closer to that of its Jamaican equivalent (before it was subsumed under the Jamaican’s Integrity Commission Act, 2017). Another hint to this source of inspiration is found in the inclusion of the “sector committees”, a point we shall return to later.

Beyond the change to the “organizational structure”, the essential objectives and duties of the Commission remain mostly on par with those that have always existed under the Contractor General Act. These include the monitoring of “the award and the implementation of public contracts with a view to ensuring that such contracts are awarded impartially and on merit”, as well as the investigating fraud, mismanagement, waste or abuse.

However, in terms of the “new” duties, the Bill, among other things, adds that the Commission has the task of “approving or overseeing the award of government contracts within the specified limits.” Also new is the Commission’s ability to, in the case of government contracts “above the specified limits”, make recommendations “to the Cabinet regarding the award of such contracts.”

Among the added features we also find section 5(i) which assigns the Commission the responsibility of “overseeing the activities of sector committees”—a feature previously not included in Belize’s Contractor General’s Act but was found in its Jamaican counterpart.

Furthermore, a most intriguing and game-changing modification is made at section 11 of the Bill, which reads: “No law which authorizes or requires the refusal to answer any question or the withholding of any information or document or thing on the ground that the answering of the question or the disclosure of the information, document or thing would be injurious to the public interest, shall apply in respect of any investigation by or proceedings before the Commission.” While most of this language likewise exists in the Contractor General Act’s section 19, it is worth noting that current exceptions as it pertains to Cabinet deliberations and the like are absent. Should this provision survive the legislative process, it would represent a significant step towards increased transparency as far as the Contractor General’s access to information for his investigative duties are concerned.

As stated earlier, the BCCI and the other social partners, as outlined in the SPoB Declaration referenced above, shall applaud any move towards strengthening our oversight institutions. Therefore, while there is room for healthy and constructive debates on specific elements of the Public Contracts Commission Bill (2021), it is fair to say that its objectives are a step in the right direction.