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SENATE Tuesday, June 10, 2014 The Senate met at 1.30 p.m.

PRAYERS

[MR. PRESIDENT in the Chair]

LEAVE OF ABSENCE Mr. President: Hon. Senators, I have granted leave of absence to Sen. Avinash Singh, who is out of the country and Sen. H. R. Ian Roach who is ill. SENATORS’ APPOINTMENT Mr. President: Hon. Senators, I have received the following correspondence from His Excellency the President, Anthony Thomas Aquinas Carmona, O.R.T.T. S.C.: “THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO By His Excellency ANTHONY THOMAS AQUINAS CARMONA, O.R.T.T., S.C., President and Commander-in-Chief of the Armed Forces of the Republic of Trinidad and Tobago. /s/ Anthony Thomas Aquinas Carmona O.R.T.T. S.C. President TO: DR. AYSHA B. EDWARDS WHEREAS Senator Hugh Russell Ian Roach is incapable of performing his duties as a Senator by reason of his illness: NOW, THEREFORE, I, ANTHONY THOMAS AQUINAS CARMONA, President as aforesaid, in exercise of the power vested in me by section 44(1)(b) and section 44(4)(c) of the Constitution of the Republic of Trinidad and Tobago, do hereby appoint you, AYSHA B. EDWARDS, to be temporarily a member of the Senate, with effect from 10th June, 2014 and continuing during the absence from Trinidad and Tobago of the said Senator Hugh Russell Ian Roach. Given under my Hand and the Seal of the President of the Republic of Trinidad and Tobago at the Office of the President, St. Ann’s, this 10th day of June, 2014.” “THE CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO 186

By His Excellency ANTHONY THOMAS AQUINAS CARMONA, O.R.T.T., S.C., President and Commander-in-Chief of the Armed Forces of the Republic of Trinidad and Tobago. /s/ Anthony Thomas Aquinas Carmona O.R.T.T. S.C. President TO: MR. STUART YOUNG WHEREAS Senator Avinash Singh is incapable of performing his duties as a Senator by reason of his absence from Trinidad and Tobago: NOW, THEREFORE, I, ANTHONY THOMAS AQUINAS CARMONA, President as aforesaid, in exercise of the power vested in me by section 44(1)(a) and section 44(4)(b) of the Constitution of the Republic of Trinidad and Tobago, do hereby appoint you, STUART YOUNG, to be temporarily a member of the Senate, with effect from 3rd June, 2014 and continuing during the absence from Trinidad and Tobago of the said Senator Avinash Singh. Given under my Hand and the Seal of the President of the Republic of Trinidad and Tobago at the Office of the President, St. Ann’s, this 9th day of June, 2014.” OATH OF ALLEGIANCE Senators Dr. Aysha B. Edwards and Stuart Young took and subscribed the Oath of Allegiance as required by law. VISITORS (Roytec) Mr. President: Senators, before we move to the next order of business, I would like you to join me in welcoming the students from Roytec who are here with us this evening. [Desk thumping] I take that signifies that you will be on your best behaviour. [Laughter] INDICTABLE OFFENCES (COMMITTAL PROCEEDINGS) BILL, 2014 Bill relating to committal proceedings in respect of indictable offences by Magistrates and for ancillary matters, brought from the House of Representatives [The Attorney General]; read the first time. Motion made: That the next stage be taken at a sitting of the Senate to be held on Tuesday June 24, 2014. [Hon. A. Ramlogan] 187 Indictable Offences Bill, 2014 Tuesday, June 10, 2014

Question put and agreed to.

PAPERS LAID 1. Audited Financial Statements of TAURUS Services Limited for the financial year ended September 30, 2010. [The Minister of Finance and the Economy (Sen. The Hon. Larry Howai)] 2. Audited Financial Statements of TAURUS Services Limited for the financial year ended September 30, 2011. [Sen. The Hon. L. Howai] JOINT SELECT COMMITTEE REPORT Legislative Proposal Draft Houses of Parliament Service Authority Bill, 2014 (Presentation) Sen. Elton Prescott SC: Thank you, Mr. President. Mr. President, I have the honour to present the following report as listed on the Order Paper in my name: Interim Report of the Joint Select Committee on the Legislative Proposal entitled, “The Draft Houses of Parliament Service Authority Bill, 2014”. ORAL ANSWERS TO QUESTIONS The Minister of the Environment and Water Resources (Sen. The Hon. Ganga Singh): Thank you, Mr. President. Mr. President, the Government is in a position to answer questions 71, 75, 80, 86, 76 and 77. The other questions would be deferred for a two-week period. The following questions stood on the Order Paper: Contract WTC 197/2011 by WASA (Details of) 69. A. Would the Minister of the Environment and Water Resources indicate whether an investigation has been launched into allegations of bid- rigging, in respect of Contract WTC 197/2011 issued by WASA, in the sum of approximately $70 million? B. Would the Minister indicate the status of this investigation, if indeed, one is ongoing? C. Would the Minister confirm whether this allegation of bid-rigging, or any related conduct, was reported to either the Auditor General, the Integrity Commission or to the police? D. If the answer to C is affirmative, would the Minister indicate when was/were this/these report(s) made and what is the status of this/these 188 Indictable Offences Bill, 2014 Tuesday, June 10, 2014

report(s)?

E. If the answer to C is negative, would the Minister say why no report was made and further indicate whether there is any plan or intention to do so? If so, when?

F. Would the Minister also indicate whether the person or persons who was/were suspected to be involved in this matter is/are still in office or whether such person or persons has/have been suspended, pending the outcome of this investigation?

G. Would the Minister further indicate what interim measures, if any, have been taken to protect the authority and the taxpayers of Trinidad and Tobago from the type of conduct that brought about these allegations and investigation?

H. Would the Minister provide the names of the companies which bid for the said contract and which company actually emerged as the awardee, in the process now under investigation?

I. Would the Minister say whether this contract award is the subject of any court proceedings? [Sen. C. Robinson-Regis] Colour Me Orange Programme (Funds Expended)

78. A. Would the Minister of Housing and Urban Development indicate what amounts of the Government’s figure of $73,568,637.50 expended on the now defunct “Colour Me Orange” Programme was specifically spent on (i) Equipment, (ii) Materials (iii) Security; and (iv) Salaries and Emoluments in both actual and percentage terms?

B. Would the Minister indicate what plans are in place to generate further employment in the communities from which the “Colour Me Orange” programme was withdrawn and discontinued?

C. Would the Minister explain why the Government’s targets of this programme of a $300 million expenditure and the creation of 20,000 jobs, as outlined by the Prime Minister, were not achieved? [Sen. C. Robinson-Regis] Sinkhole along the Beetham Highway (Details of) 189 Oral Answers to Questions Tuesday, June 10, 2014

81. A. Would the Minister of Works and Infrastructure indicate the name(s) of the firm(s) which undertook roadworks on behalf of the Ministry to refill and repair the “sinkhole” which developed along the Beetham Highway, in the vicinity of Sea Lots on September 6, 2012? B. Would the Minister briefly describe the nature and the cause of this problem? C. Would the Minister indicate the total cost of repairs to this piece of infrastructure and the source of the funds utilized to meet this cost? D. Would the Minister further indicate the action taken to ensure that this mishap never recurs? E. Would the Minister also indicate whether a technical report was prepared in respect of this problem? And if so, by whom? [Sen. C. Robinson-Regis] Atrius (Details of) 87. With regard to Atrius, could the Minister of Finance and the Economy inform the Senate: (i) what is the status of Atrius; (ii) what are the impediments to the transferring of the assets from CLICO to this new entity; and (iii) what activities has the Board of Directors of Atrius been engaged in and are they being paid? [Sen. Dr. L. Henry] VMCOTT (Details of) 91. With respect to the Vehicle Management Corporation of Trinidad and Tobago, could the Minister of Transport please inform this Senate as to: (a) whether the CEO contract at VMCOTT was terminated by the new Chairman of the Board; (b) if the answer to (a) is in the affirmative, on what basis was it done; (c) whether the Chief Operating Officer position at VMCOTT was an existing position prior to 2010; (d) whether the Chairman of VMCOTT is an Executive Chairman; and 190 Oral Answers to Questions Tuesday, June 10, 2014

(e) have the Managers at VMCOTT met the minimum qualifications for their positions? [Sen. A. Singh] Surveillance Bays (Maintenance and Upkeep Contracts) 100. Could the Minister of National Security inform this Senate on: (a) the number of surveillance bays currently installed on the Solomon Hochoy Highway and their exact locations; (b) whether a maintenance contract exists for routine upkeep and, if so, the name of the contractor to whom such was awarded; and (c) if the answer to (b) is in the affirmative the cost per month of the contract? [Sen. D. Baldeo-Chadeesingh] National Academy for the Performing Arts (NAPA) (Maintenance and Oversight Responsibility of) 102. In relation to the National Academy for the Performing Arts (NAPA), could the Minister of Arts and Multiculturalism inform the Senate: (a) which Ministry/Department has oversight responsibility for health, safety and maintenance of the three functional areas at the National Academy for the Performing Arts (NAPA), specifically: (i) the Auditorium; (ii) the Academy; and (iii) the Hotel; (b) which Ministry/entity is responsible for handling maintenance of the complex as a whole or, if such responsibility falls separately, then who is responsible for handling maintenance in respect of each of the three functional areas; (c) are formal inspections carried out and, if so, by whom and how often; (d) is there a maintenance operations guide or any controlling policy in respect of maintenance and support designed to maximize the performance of the complex; in particular as regards routine repair or maintenance; and as regards preventative maintenance routines; (e) is there a help-line support facility available to occupiers or users of the buildings for the purposes of reporting equipment malfunctions and failures or as regards areas or aspects of the building in need of maintenance, repair or adjustment; (f) who is required to respond and what is the typical response time; and 191 Oral Answers to Questions Tuesday, June 10, 2014

(g) if third party maintenance is used, how is the provider selected and is there a standard maintenance and support agreement? [Sen. A. Vieira] Regional Health Authorities Collective Agreement (Details of) 103. Could the Minister of Health state: A. What was the date of the last completed signed collective agreement for salary and other terms and conditions of service between the Regional Health Authorities in Trinidad and the doctors’ representatives? B. What time period was covered by this collective agreement? C. If any proposals for a new collective agreement were received by the Ministry of Health or any of the Regional Health Authorities in Trinidad from the doctors’ representatives? D. If the answer to the above is yes, what was the date that these proposals were received? E. Have negotiations started for a new collective agreement between the doctors’ representatives and the RHAs? [Sen. Dr. V. Wheeler] Questions, by leave, deferred. Sen. Robinson-Regis: Thank you very much, Mr. President. Mr. President, before I ask the question, I note that question No. 69 was deferred previously, so I am trusting that my colleagues will be able to answer on the next occasion. Sen. G. Singh: Sure. India Visit, 2012 (Details of Advertisement) 71. Sen. Camille Robinson-Regis asked the hon. Minister of Trade, Industry, Investment and Communications: A. Would the Minister indicate whether any entity within the purview of his Ministry placed any advertisements or expended any money on advertisements in any Indian publication during or in advance of the official visit by the Prime Minister to India in 2012? B. If so, would the Minister indicate which entity, the cost of this/these advertisement(s) and whether this cost was included in the figure 192 Oral Answers to Questions Tuesday, June 10, 2014

previously disclosed by the Minister in any answer to parliamentary questions put to him in the House of Representatives? The Minister of Trade, Industry, Investment and Communications (Sen. The Hon. Vasant Bharath): [Desk thumping] Thank you, Mr. President. The answer to the first part of the question is yes. The Ministry of Trade, Industry and Investment did expend moneys on advertisements in Indian publications prior to the official visit of the Prime Minister. The agencies involved were: the Ministry of Trade, Industry and Investment itself, $102,536 and e TecK, $89,719. Yes, this cost was previously disclosed in the answer to question No. 34 posed to the hon. Prime Minister on Order Paper for answer on February 02 and March 2012. Sen. Robinson-Regis: Thank you very much, Mr. President. Mr. President, would the Minister be able to indicate whether these advertisements were for the purpose of garnering investment, as I understand the visit was an investment visit? Sen. The Hon. V. Bharath: Yes, Mr. President. They were for the purposes of alerting the Indian private sector of the forthcoming visit of the Prime Minister as a state visit to India. Sen. Robinson-Regis: Thank you very much, Mr. President. Would the Minister be able to indicate whether these advertisements did in fact garner investments? Were they successful? Sen. The Hon. V. Bharath: Yes, Mr. President. We have several projects in the pipeline that have come out of that state visit to India that we—invesTT is currently working on. Sen. Robinson-Regis: Mr. President, thank you. Would the Minister be able to indicate what investments are in the pipeline? Sen. The Hon. V. Bharath: There are several investments in different sectors, including the financial services sector, waste management and other sectors that I do not have the specific information at this point in time, but those are the two broad sectors where we have significant interest, and as I said, the proposals are being looked at by invesTT currently. Sen. Robinson-Regis: Thank you very much, Mr. President. Would the Minister be able to indicate the value of the contracts that are in the pipeline? Sen. V. Bharath: There are no contractual obligations entered into at this point in time, so therefore it would be impossible for me to give a figure for the 193 Oral Answers to Questions Tuesday, June 10, 2014 contractual obligations or the values at this point in time. Sen. Robinson-Regis: Is the Minister saying that there are no actual contracts? Is that what the Minister is saying? Sen. The Hon. V. Bharath: That is exactly what I am saying. There are no contractual obligations signed by invesTT on behalf of the Government of Trinidad and Tobago or any other agency that I am aware of, that we can put a figure to at this point in time. I mentioned when I spoke earlier, that they were in the pipeline. I specifically mentioned that there are no contractual obligations at this point in time. Sen. Baldeo-Chadeesingh: Supplemental, Mr. President. Hon. Minister, could you indicate what is the targeted demographic of this publication? Sen. The Hon. V. Bharath: I suspect it would be anyone who would be able to read a newspaper or a publication in India. [Laughter and desk thumping] Sen. Baldeo-Chadeesingh: Well then, if it is for everybody—because I do not think you could be everything to everybody all of the time—how could you then measure the success of the publication and of course the advertisements that were put in the publication? [Desk thumping] Sen. The Hon. V. Bharath: Simply because the magazines in which the Ministry would have advertised would have been very widespread in terms of their dispersion. Secondly, it would have gone into national newspapers, clearly, obviously to alert the general public of the oncoming visit of the Prime Minister, and clearly we would not have any indication as to who would have bought the newspapers during the course of that week, to have read it. But I suspect it would have been, based on the population of India, I suspect it would have been a very large readership. Sen. Baldeo-Chadeesingh: Supplemental, Mr. President. Is the hon. Minister aware that some of the publications in India are not distributed to all the states in India? So my next question would be, do you know if it was one state or a number of states that this advertisement appeared in this particular publication? Sen. The Hon. V. Bharath: It was a national magazine, so I suspect it would have been widely distributed across most states in India. 1.45 p.m. Sen. Al-Rawi: Further supplemental, Mr. President. Mr. President: Sen. Al-Rawi. 194 Oral Answers to Questions Tuesday, June 10, 2014

Sen. Al-Rawi: Much obliged, Sir. Hon. Minister, would you be in a position to indicate the value for money in light of the many millions of dollars spent on this trip, the deliverables being mere pipeline deliverables thus far? Is the hon. Minister able to tell us what the value resultant out of the millions expended versus what is expected to be? Sen. The Hon. V. Bharath: Well Senator, obviously as I mentioned, there are no contractual obligations involved yet. But what I will tell you is that we have attracted significant interest in the financial services sector, and we are now being able to put in place a structure and investments that would be in a position to bring advantage to all of the assets that would have been incurred or the liabilities that would have been incurred under a previous regime, for example, in the financial services sector. As you will know, Senator, a tremendous amount of moneys were expended by the previous regime in putting together what they deemed to be the financial services sector, and all that we had essentially when we came into office in 2010 were a set of buildings. What we now have is—[Interruption] Sen. Dr. Tewarie: Empty buildings. Sen. The Hon. V. Bharath: Empty buildings as Dr. Tewarie will remind me. What we have now are actual proposals to populate those buildings with actual genuine investment proposals. [Desk thumping] Sen. Al-Rawi: Supplemental. Thank you, hon. Minister. Further supplemental. Is the hon. Minister able to identify which entity in the Government of Trinidad and Tobago comprises the “we” in the Minister’s last answer, responsible for the bringing to table of those pipeline projects?

Sen. The Hon. V. Bharath: InvestTT specifically, and let me also say that investTT is now the sole agency responsible for investment destinations in Trinidad and Tobago and for ensuring that pipeline proposals come to fruition. I want to also add, hon. Senator, that when we came into office, there were 13 agencies across three Ministries responsible for investments in Trinidad and Tobago and it is probably the reason why this country was not able to get the kind of levels of investment that we require. [Desk thumping] Today, investTT is a one- stop shop responsible for accepting all investment proposals coming to Trinidad and Tobago. Sen. Al-Rawi: Further supplemental. Hon. Minister, is it therefore your position in answer to the question offered a short while ago, that no contracts 195 Oral Answers to Questions Tuesday, June 10, 2014 coming out of the entire trip to India, yet, is equal to successful implementation by investTT of the Government’s mandate? Sen. The Hon. V. Bharath: [Crosstalk] Mr. President? Mr. President: Senators, let me hear the answer. Sen. The Hon. V. Bharath: Sorry. I am unable to respond because I really do not understand the question. Would you rephrase it properly? Sen. Al-Rawi: Thank you, hon. Minister. I am asking: are you saying, hon. Minister, is it your position that no contracts, none at all, coming out of the trip to India as posed by this question is a successful implementation of the investTT consolidation of 13 entities? Sen. The Hon. V. Bharath: I will not say that at all. In fact, the records will show that in December of 2013 we signed a major MOU with a global contractor for BPO, which is business process outsourcing, out of India called Quatrro, that would have come directly out of this. Presently before the Cabinet is a major proposal for waste management in Trinidad and Tobago, and there are others in the pipeline as I mentioned. Sen. Al-Rawi: Hon. Minister, are those the same projects in the pipeline to be developed? Sen. The Hon. V. Bharath: They are indeed. Sen. Al-Rawi: So, hon. Minister, in answer to the question, are you saying that no contracts—[Interruption] Sen. Singh: He said that. [Crosstalk] Sen. Al-Rawi: We are very jumpy here, hon. Minister. [Crosstalk] Hon. Minister, I am just trying to confirm whether you are saying that zero dollars’ worth of contracts is successful implementation by investTT? Sen. The Hon. V. Bharath: Hon. Senator, I am not sure in how many languages you expect me to say the same thing. I have said to you that we have several proposals that are before Cabinet currently and before investTT that are likely to come to fruition very shortly. It is as simple as that. Sen. Young: Further supplemental, Mr. President. Hon. Minister, these advertisements that were placed in the Indian publications, were they placed on the advice of any agency, an advertising agency? Did the Government seek advice as to where to place these publications prior to doing so? Sen. The Hon. V. Bharath: I am not able to answer that question at this point 196 Oral Answers to Questions Tuesday, June 10, 2014 in time because I was not then the line Minister, but if you want to pose that as another question I will be happy to get the answer and refer back to you. Sen. Young: Thank you. Sen. Al-Rawi: Further supplemental. Hon. Minister, with respect to the waste management MOU that you referred to—[Crosstalk] I am sorry, I cannot hear over the running of certain things. Sen. Singh: He did not say waste management MOU. Sen. Al-Rawi: With respect to—hon. Minister, did you say waste management MOU? Sen. The Hon. V. Bharath: No, I did not. Sen. Al-Rawi: Would you clarify what you said, please? Sen. The Hon. V. Bharath: A proposal on waste management. Sen. Al-Rawi: Thank you. Hon. Minister, with respect to the proposal on waste management, is it the same Nahata waste management proposal that has resulted in the non-deliverable of the beverage bottle recycling Bill which has rotted on this Order Paper? Sen. The Hon. V. Bharath: No! Sen. Al-Rawi: Hon. Minister, who is the person for this waste management MOU? Sen. The Hon. V. Bharath: Well, it is not an MOU as I have said before. It is a proposal that we have received. I am not in a position at this point in time to disclose the information with regard to the proposal. It is being currently weighed against several other proposals that we have from many other proposers. Sen. Al-Rawi: Hon. Minister, further supplemental. Is it connected to the beverage—[Interruption] Sen. Singh: No, it is not! I will answer. It is not. Sen. Al-Rawi: Hon. Minister, one must wait for the question first. Sen. Ramlogan SC: There are other questions to be answered, you know, man. Sen. Al-Rawi: AG, we have not seen you for months. “We eh want to hear you now.” Hon. Minister, is it in any way connected to the failed beverage recycling Bill that has not come forward in this Parliament yet? Sen. The Hon. V. Bharath: No, it is not. 197 Oral Answers to Questions Tuesday, June 10, 2014

DNA Sample Storage (Details of) 75. Sen. Camille Robinson-Regis asked the hon. Minister of Justice: A. Would the Minister kindly indicate the name and general location of the Unit/Department that stores DNA samples for future identification purposes? B. Would the Minister further indicate which State official has responsibility for this unit? C. Would the Minister advise as to whether such samples are held at only one agency and whether there is any other repository of such material? The Minister of Justice (Sen. The Hon. Emmanuel George): Thank you. Mr. President, the answer to part A of the question, or question A. DNA sample refers to an item, exhibit or body fluid from which DNA can be extracted to obtain a DNA profile or DNA extract which has not been profiled. The Trinidad and Tobago Forensic Science Centre located at 14-17 Barbados Road, Federation Park, St. Clair, stores DNA samples which are retrieved from the police for testing in matters relating to crime detection and intelligence. With the exception of the police, it is the only agency at which such material is stored. The answer to part B of the question. The director, Trinidad and Tobago Forensic Science Centre, has responsibility for the unit. The answer to question C. The Trinidad and Tobago Police Service by virtue of its mandate and responsibilities may, at any point in time, be the repository of evidential material which could be considered a DNA sample for future identification purposes. Thank you very much, Mr. President. [Desk thumping] Sen. Al-Rawi: Supplemental question through you, Mr. President. Hon. Minister, would you please clarify what you mean by “with the exception of the police”? I did not quite catch whether you were saying that it is the T&T Forensic Science Centre alone that is the repository of the DNA samples, or is it in conjunction with the TTPS as well? Sen. The Hon. E. George: I will never use the words “in conjunction with”. I will repeat what I said. [Laughter and Desk thumping] With the exception of the police it is the only agency at which such material is stored. Sen. Al-Rawi: So, hon. Minister, would you clarify for the Senate, what you meant in answer to part A by the statement “with the exception of the police”? 198 Oral Answers to Questions Tuesday, June 10, 2014

Sen. The Hon. E. George: The answer to part B and part C would also clarify, so I will read them over. The answer to part C said, the Trinidad and Tobago Police Service by virtue of its mandate and responsibilities may, at any point in time, be the repository of evidential material which could be considered a DNA sample for future identification purposes. Sen. Al-Rawi: Further supplemental. Hon. Minister, in light of that clarification and answer, is the hon. Minister in a position to tell us how this complies with the Administration of Justice (Deoxyribonucleic Acid) Bill which we spent a lot of time in this Parliament passing? Sen. The Hon. E. George: I do not have the answer to the question. Sen. Al-Rawi: Hon. Minister, does your Ministry have responsibility for DNA samples? Sen. The Hon. E. George: I indicated that the Forensic Science Centre falls under the Ministry of Justice. Sen. Al-Rawi: Hon. Minister, does your Ministry or did your Ministry pilot the Administration of Justice (DNA) Bill? [Crosstalk] Mr. President: Senator—Senators?—that is a matter of public record, so I would not permit the question. Sen. Al-Rawi: Thank you, Mr. President, for saving the Minister of Justice from an answer. [Crosstalk] Hon. Minister, how is your Ministry—Mr. President, I really cannot hear through the voices of protestation opposite, you know. Mr. President: Senators, shall we hear the question. Sen. Al-Rawi: Hon. Minister—does the AG have something to say? [Crosstalk] Hon. Minister, is your Ministry in a state of preparedness or compliance for the implementation of the Administration of Justice (DNA) Act in light of your answer to these questions? Sen. The Hon. E. George: Mr. President, if the goodly Senator would file that as a new question, I would certainly get the information for him and answer him. [Desk thumping] Sen. Al-Rawi: Hon. Minister, insofar as the DNA Act as has been put onto the books of Trinidad and Tobago, prescribes a designated person as the data control person with responsibility for samples, is the hon. Minister in a position to assist us as to whether the Government of Trinidad and Tobago has ensured compliance with the legislation which governs the retention of DNA samples? 199 Oral Answers to Questions Tuesday, June 10, 2014

Sen. The Hon. E. George: Again, I will answer that question if you pose it as a question to the Senate. However, you are aware that the Ministry is indeed working to bring all of that legislation into force. Sen. Al-Rawi: Sorry. Hon. Minister, “bring all of that legislation into force”. What does that mean? Sen. The Hon. E. George: It means that there are items that we have to focus on and put things in place to be able to address. Right? So we will do that in the fullness of time. Sen. Al-Rawi: Sorry, hon. Minister. In light of this question asking specifically in relation to DNA samples, I am asking, hon. Minister, is the answer that you just gave in response to supplemental question, are there any better specifics as to what is in need of addressing and has delayed the operationality and compliance with the law with respect to DNA samples? Sen. The Hon. E. George: Yes. As I indicated earlier on, if you file it as a question I will answer it. Sen. Al-Rawi: Further supplemental. Hon. Minister, are you saying that you are not in a position to answer any of those arising out of your own answers to supplemental questions? Sen. The Hon. E. George: I am saying that if you put your questions I will answer them, but if you file your questions as separate questions I will answer them. Sen. Al-Rawi: Hon. Minister, further supplemental. Who is the State official with responsibility at the Trinidad and Tobago Forensic Science Centre designated, in accordance with the Act, with responsibility for the retention of DNA samples? Sen. The Hon. E. George: I feel uncomfortable repeating and repeating myself all the time because I think that you are abusing the process. Please, please, put your answer in a question. Sen. Al-Rawi: Further supplemental. Perhaps I may extricate myself from abuse. Hon. Minister, what in that question has caused you discomfort as to who is the person. Who is the person? [Crosstalk] 2.00 p.m. Sen. The Hon. E. George: File a question and I will answer it. 200 Oral Answers to Questions Tuesday, June 10, 2014

Sen. Robinson-Regis: Further supplemental, Mr. President. Minister, would you be able to say whether there are difficulties in retaining these samples; whether the Forensic Science Centre has any difficulty retaining these samples or has there been a breakdown in the samples that have been retained given the length of time and the storage? Sen. The Hon. E. George: No, it is not. I have no knowledge that is the case at the Forensic Science Centre. CTO Media Awards Luncheon in New York (Details of) 80. Sen. Camille Robinson-Regis asked the hon. Minister of Tourism: A. Would the Minister kindly indicate the names and portfolios of the Trinidad and Tobago delegates that participated in any way, in the Caribbean Tourism Organization’s “CTO Media Awards Luncheon” in New York, in the run-up to and on Thursday 1st June, 2013? B. Would the Minister indicate the total cost of this exercise to his Ministry, and/or any State organization under his purview; and also our Consulate Offices in the USA, including cost of travel and sponsorship of the event? C. Would the Minister indicate the economic and other benefits of this exercise to Trinidad and Tobago? The Minister of Tourism (Sen. The Hon. Gerald Hadeed): [Desk thumping] Sen. Al-Rawi: Rats. Sen. The Hon. G. Hadeed: “Careful wey I tell yuh de rat is eh.” [Laughter] Sen. Al-Rawi: Rats. Sen. The Hon. G. Hadeed: “Careful because you know wey they have all dem rats in yuh—doh go down dah road wih me.” Mr. President: Senator—[Interruption] Sen. Al-Rawi: Rats. [Continuous laughter and crosstalk] Sen. The Hon. G. Hadeed: “Doh go down dah road with me because ah go tell yuh how much rats teeth yuh have.” [Crosstalk] Mr. President: Senators, can we listen to the answer? 201 Oral Answers to Questions Tuesday, June 10, 2014

Sen. The Hon. G. Hadeed: In answer to the question, Caribbean Week is held annually in New York and brings together Ministers of Tourism, senior tourism industry officials, policymakers, marketing professionals, investors, strategic partners, to discuss tourism development and tourism investment opportunities in the Caribbean region. As a member of the CTO, Trinidad and Tobago is required to attend CTO business meetings and to take part in the activities of Caribbean Week. The business meetings provide a forum for Ministers of Tourism in the region to discuss tourism issues affecting the region and to find solutions. At Caribbean Week 2013, and in addition to airlift and cruise, the issue of membership contributions was discussed to be brought to the attention of the Heads of Governments as some islands were experiencing difficulties in paying their contributions in addition to business meetings. Caribbean Week allows the destinations to showcase the sights, sounds, culture and new unique vacation experiences of the Caribbean. These events comprise workshops, trade shows, a media marketplace and a travel and vacation mart. Under the previous PNM administration, the Ministry of Tourism participated in Caribbean Week at a total cost of $241,070.40 over the periods, two years: 2007 to 2008 to 2009. Delegations were headed by the Ministry of Tourism and social tourism officials, senior tourism officials from the Ministry, the Tourism Development Company and the Tobago House of Assembly. The cost of the Ministry’s participation over the periods 2007 to 2009: 2007, $116,388.40; 2008, $67,371; 2009, $57,311. With respect to part A of the question—[Interruption] No Trinidad and Tobago delegation participated in the CTO Media Awards Luncheon on Thursday June 01, 2013 as requested in the question. However, the Media Awards Luncheon for Ministers, commissioners and directors of tourism and senior tourism officials was held on Thursday, June 06. So, on the 01, there was nothing but on the 06, there was something. The event was attended by—[Crosstalk] I answered your question: No. So therefore we did a—[Crosstalk] Another day, you made a mistake when you asked your question so I answered it correctly today. The event was attended by the hon. Stephen Cadiz, Minister of Tourism; Mrs. Juliana Boodram, Permanent Secretary, Ministry of Tourism; Mrs. Satie Jamrai, Maury Matthew, Senior Research Officer, Ministry of Tourism; Mrs. Tracy Davidson-Celestine, Secretary, Division of Tourism and Transportation, Tobago House of Assembly; Mr. Brian Frontin, Chairman, Tourism Development Company; Miss Aysha 202 Oral Answers to Questions Tuesday, June 10, 2014

Sylvester, Communications Specialist, Division of Tourism and Transportation, Tobago House of Assembly; Miss Shelley-Ann De Gazon, Marketing Specialist, Tourism Development Company; and Mrs. Nan Gosine-Ramgoolam, Consul General of New York. Part B of the question: the total cost of the Government’s package which was paid by the Tourism Development Company, and included the luncheon, was US $8,000, equivalent to $51,520. The cost included the following:  One booth at the Caribbean travel and cultural fair;  Wedding and vacation mart;  Workshop for the NTO representatives;  One table for the travel agent workshop;  One booth at the Caribbean Media Marketplace;  Three registrations to the Caribbean Market Conference and Awards Luncheon;  One full-page cover advertisement in the journal;  Two tickets to investment forums, Ministers and directors only. The cost of the Ministry’s participation in Caribbean Week was $81,528. Sen. Al-Rawi: Sorry, would you say that again. Sen. The Hon. G. Hadeed: $81,528, no cents. Part C: The benefits of participating in the Caribbean Week is the unique opportunity it provides for member countries of the Caribbean Tourism Organization to promote their individual products and services to a wide cross- section of persons including tour operators, media and prospective visitors. The event also provides a platform for the sale of Caribbean vacations and to promote the Caribbean as a most desirable warm-weather destination. Economic benefits accrue with the increase in visitor arrivals and the multiplier effect that tourism generates. The Ministry’s representative utilized the opportunity to continue discussions with jetBlue for the start of the daily non-stop flight service to Port of Spain from New York JFK International Airport which started on Monday, February 24, 2014. Discussions with the tourism Ministers for St Lucia, St. Vincent, Grenada and Trinidad and Tobago also started at Caribbean Week on a southern Caribbean cruise initiative. Those are the answers. 203 Oral Answers to Questions Tuesday, June 10, 2014

Sen. Robinson-Regis: Supplemental. Thank you very much. Minister, would you be able to indicate whether there has been an increase in visitor arrivals as a result of the attendance at this CTO and also whether there has been an increase in persons from Trinidad and Tobago making inter-island visits along the Caribbean chain? Sen. The Hon. G. Hadeed: Well, I will not be able to give you the exact details as you requested, Ma’am, but I believe from the information that was provided to me of which there is the information, at the office, that yes, there was increase in arrivals because from there, we also had the introduction of the jetBlue flight from Miami which brings approximately 150 people daily now. And there was recently an initiative that brought 3,000 or 4,000 cruise ship visitors to Trinidad. Sen. Al-Rawi: Further supplemental. Hon. Minister, thank you for the disaggregated costs. May I enquire as to the total cost with respect to the answer to part B? Sen. The Hon. G. Hadeed: I do not have my adding machine with me but I believe you have learnt addition in the school so add it up. Sen. Al-Rawi: Thank you for that excellent answer, hon. Minister. May I ask a further supplemental of you? Wonderful example, thank you, hon. Minister. Excellent! May I ask hon. Minister, apart from the $81,528 by the Ministry and the US $8,000, is the hon. Minister saying that there are no other costs than that put together? Sen. The Hon. G. Hadeed: The information was provided to me by the Ministry and that is the information I was given to speak here today. I have no other thing to say about that at the present time. Water and Sewerage Authority (Total Number of Contract and Full-Time Employees) 86. Sen. Dr. Lester Henry asked the hon. Minister of the Environment and Water Resources: Could the Minister say what is the total number of contract and full-time employees at the Water and Sewerage Authority (WASA) for the years 2010, 2011, 2012 and 2013? The Minister of the Environment and Water Resources (Sen. The Hon. Ganga Singh): Thank you. Mr. President: 204 Oral Answers to Questions Tuesday, June 10, 2014

2010: 2,074 permanent employees; 2,390 contract/casual employees; a total 4,464; 2011: 2,025 permanent employees; contract/casual 2,387; making a total of 4412; 2012: 1,719 permanent employees; contract/casual, 2,365; a total of 4,084; 2013: 1,261 permanent employees; 2,198 casual/contract employees; making a total of 3,459. Sen. Dr. Henry: Supplemental. Could the Minister refresh our memories as to how many people left in the VSEP? Is that responsible for the drop in— Sen. The Hon. G. Singh: Well, over 900 persons and it will reflect partially through VSEP and also through attrition as the hon. Minister knows. Hon. Senator: Member. Sen. Al-Rawi: Further supplemental. Hon. Minister, bearing in mind the significant decline in the number of permanent employees as offered by you in answer to these questions, is the hon. Minister in a position today to advise as to the steps that are being taken to shore up the deficiencies in manpower at WASA? Sen. The Hon. G. Singh: Well, the critical point you have to know is that WASA is not an employment agency and that therefore the number of employees is reflective of the productivity in the production of potable treatment water and the provision of wastewater treatment services. And we have seen a dramatic increase in that, notwithstanding the reduction in the employees, and that therefore, the necessary managerial restructuring initiatives are taking place. Sen. Al-Rawi: Further supplemental, hon. Minister. So are you saying that there is no manpower shortage at WASA? Is that what you are saying? Sen. The Hon. G. Singh: What I am saying is that in the current, it is the utilization of the existing workforce and the necessary recruitment in specific areas where there are deficiencies. But, when you look at productivity, there has been significant productivity increase. Sen. Dr. Henry: Further supplemental, Mr. President. Can the Minister explain his increase in productivity in any greater detail? Sen. The Hon. G. Singh: Perhaps, if you ask another question, I would be able to do that in each particular area. Sen. Al-Rawi: Hon. Minister, further supplemental. Do the representative trade unions at WASA share your view that there is no manpower shortage at WASA? 205 Oral Answers to Questions Tuesday, June 10, 2014

Sen. The Hon. G. Singh: I want to indicate to the hon. Senator that in order to embark upon the voluntary separation exercise, we started the process of social dialogue with all the member unions and that has been proceeding progressively, and that is why you have so great a level of productivity also. Sen. Dr. Henry: Further supplemental. Is the Minister in a position to tell us the cost of the VSEP package? Sen. The Hon. G. Singh: I can give you a ballpark figure. The VSEP was approximately $275 million. Sen. Young: Further supplemental, hon. Minister. Do you have a comparative figure between the cost to WASA of the permanent employee bill as opposed to the contract labour bill? Sen. The Hon. G. Singh: That I can provide very easily with a question proposed. 2.15 p.m. Dhansam Dhansook Revelations (False Allegations Investigation) 76. Sen. Camille Robinson-Regis asked the hon. Attorney General: A. Would the Attorney General indicate the status of the police investigation into the alleged conspiracy to pervert the course of public justice, arising out of revelations by one Dhansam Dhansook, that the said Dhansam Dhansook made false allegations against two (2) former Ministers of Government and following which, the Director of Public Prosecutions referred the said matter to the police for its attention and investigation? B. Is/are any other agency(ies) of the State conducting this/these investigation(s)? C. When are these investigations expected to be concluded? D. Based on the current status of these investigations, are criminal charges a probable result? The Attorney General (Sen. The Hon. Anand Ramlogan SC): [Desk thumping] Thank you very much. Mr. President. Mr. President, in preparing to answer this question, I wrote the Office of the Director of Public Prosecutions and his response dated May 16, 2014, is as follows: 206 Oral Answers to Questions Tuesday, June 10, 2014

The completed police investigation into the allegation of a conspiracy to pervert the course of public justice, involving but not limited to the hon. Prime Minister, the hon. Attorney General and a journalist, has categorically revealed that the allegation was unsubstantiated, uncorroborated and did not emanate from a credible source. [Desk thumping] Further, the Trinidad and Tobago Police Service was the only agency of the State that I, the DPP, know of, which had been charged with conducting this investigation. I am instructed that the criminal charges have since been preferred against the maker of the subject allegation, his having allegedly implicated himself. Yours sincerely,

Mr. Roger Gaspard SC, DPP The answer to parts (b), (c) and (d), would be contained in the response of the hon. DPP. [Desk thumping] [Crosstalk and continuous interruption] Mr. President: It is after the time for questions. I thought that—well, I would not go into that. So, Leader of Government Business, how do you stand on that question? The Minister of the Environment and Water Resources (Sen. The Hon. Ganga Singh): Mr. President, the Attorney General was almost on his feet to answer question No. 77, and I think that with the leave of the House, we will proceed in that direction. Sen. Robinson-Regis: If I may be allowed to ask the question, if his colleagues would give me the opportunity. Outstanding Legal Fees Paid to the A-Team (Details of) 77. Sen. Camille Robinson-Regis asked the hon. Attorney General: With respect to the response of the hon. Attorney General to Senate Question No. 47, which was delivered by the Attorney General on Tuesday May 14, 2013, in respect of legal fees paid to the “A-Team” to investigate corruption of the State sector: 207 Oral Answers to Questions Tuesday, June 10, 2014

(a) Would the Attorney General indicate whether the figures revealed are the final figures or is money still due and owing to the members of the “A-Team” for work done in respect of their assignment? (b) Would the Attorney General indicate precisely when did the team complete its work? (c) Given that the Attorney General included the names of the two-named attorneys hereunder; and given that the Attorney General failed in his response, to mention among the payees, the following attorneys, one Ackbar Ali and one Fenton Ramsahoye QC, in respect of the composition and work of the “A-Team”, would the Attorney General indicate why he did not? (d) Would the Attorney General indicate precisely what sum was paid to each of the two lawyers? (e) Since no mention was made of the firms AFA Law (which received $6,099,348.09) and AlixPartners (which received $20,903,070.98) when the Attorney General announced the “A-Team”, would the Attorney General explain why not; and when and how did these two entities get involved in the provision of the services contracted for with the “A-Team”? (f) Would the Attorney General indicate whether his office or the “A- Team” reported any matter(s) regarding the investigations of the “A- Team” to the police? And if so, what is the status of this/these investigations? The Attorney General (Sen. The Hon. Anand Ramlogan SC): Thank you very much, Mr. President. The answer to the question is: (a) No further sums are due and owing for work done in respect to the forensic audits and probes conducted pursuant to the decision of the Cabinet; (b) The last report from the team was submitted on October 12, 2012; (c) Mr. Ackbar Ali works for AFA Law and these fees were, in fact, disclosed to this Parliament. Sir Fenton Ramsahoye SC was not, in fact, retained; (d) See the answer above to paragraph (c); 208 Oral Answers to Questions Tuesday, June 10, 2014

(e) Mr. Ackbar Ali was retained via the law firm AFA Law, and hence the disclosure of the fee paid to that firm. AlixPartners was, in fact, subsequently retained on the advice of Counsel, after it became evident that the legal team would require the support of a forensic accounting firm. AlixPartners is, in fact, an internationally respected firm of forensic accountants and financial auditors and advisors, with offices in Dubai, London, Germany, Italy, France, Hong Kong, Japan, Korea, China and the United States of America; (f) The probes were civil in nature and, as such, several unprecedented claims were filed in the High Court against members of various boards of state enterprises for misconduct, negligence, fraud, misrepresentation and breach of fiduciary duties. The status of these matters are as follows: e TecK v Kenneth Julien and Ors. Civil Claim 2011-03992. This claim arose, Mr. President, you may recall out of the failed investment by the board of e TecK in the Bamboo Networks Limited, which was a shell IT Company. What went wrong in this investment was only discovered after these extensive investigations, conducted by the Cabinet-initiated probes into the conduct of the past board. Thirty million dollars was invested against the advice of the Ministry of Finance by the former board of e TecK. Because the investment was made without any proper due diligence being done on Bamboo Investments, the US $5 million [Interruption] simply disappeared into thin air. Once the money was paid it vanished. Sen. Robinson-Regis: Mr. President—[Interruption] if I may? Is this matter—I am asking the Attorney General, before he proceeds. Is this matter sub judice, AG, because I do not think the question asked for the details of these matters in that way? Sen. The Hon. A. Ramlogan SC: Mr. President, this is a status report that obviously arises from the question asked, and I am entitled to answer the question in the way that I deem fit. Mr. President: Attorney General, I do not think there can be any problem on how you choose to answer the question, that is not the purview of the Senator asking the question, but there was a concern raised as to whether it was sub judice, and if you could just address that issue. Sen. The Hon. A. Ramlogan SC: Yes, certainly. It is public knowledge, Mr. President, these matters are, in fact, before the court, but nothing I say will, in fact, impact on those matters. I am simply reciting the matters that are already 209 Oral Answers to Questions Tuesday, June 10, 2014 factual and in the public domain, so there is no question about that. In fact, the matters to which I refer are, in fact, contained in the judgments of the court that are available for public consumption in any event. Sen. Young: Mr. President, if I may, on Standing Order 35(2), which is the sub judice Standing Order. I am personally involved in these matters, and nothing that the Attorney General has said in the last few questions, in my respectful opinion, can fall under either an answer to the question, or a status report, because those are, in fact, the matters— Mr. President: Sen. Young, you will have to take your seat. [Crosstalk] Yours is not the purview as to determine what the answer to a question shall be. The Minister or Attorney General answering the question may do so according to how he considers the answer should fall. If it is a matter of sub judice, obviously, that is a matter you should raise before us, but you cannot raise the question as to whether the answer falls within the ambit of the question. Sen. Young: Thank you very much, Mr. President. I am so guided. It is my respectful submission to you that the matter is, in fact, sub judice. Mr. President: What I hear the Attorney General to be saying, is that he does not intend to embark upon any issues which will touch upon the sub judice rule. He is merely reporting, as I understand it, on the fact that such matters are before the court. I do not think that that breaches the sub judice rule. Sen. Young: Mr. President, the only reason that I rose with the greatest of respect is because exactly the matters to which he was referring are the ones for the determination of the court. But I am guided by you, Mr. President. Mr. President: Perhaps I should make it clearer. What I understand the Attorney General to be saying, he is reporting the fact that these are matters before the court. He is not, I take it, going to embark upon issues relating to the facts of each matter, but rather relating to the matters that are before the court. Sen. Al-Rawi: Mr. President, just for your clarification on the privileges that this House enjoys. Could you please guide us, because I heard the Attorney General a moment ago raise the issues in the case, [Interruption] Mr. President, I just wish for the privileges of this House to be clarified and preserved. [Crosstalk] Sorry, I have not finished yet, Mr. President, if you would hear me. On the question of privilege, Mr. President, I heard a little while ago, the Attorney General go into the issues of the case. [Interruption] And insofar as the sub judice rule set out in Standing Order 35(2) allows one to speak about the 210 Oral Answers to Questions Tuesday, June 10, 2014 existence of something in such a fashion as not to prejudice something which is under the sub judice principle, could you please provide some guidance on how it is we are to allow an answer to come, then object and still preserve the sub judice principle, in light of the specific occurrence of the Attorney General having just stated what the very issues before the courts are? Mr. President: I do not think the question arises as to what the issues are. Obviously a claim has been introduced, he can say the nature of the claim. He must not embark upon issues relating to the—that would prejudice a court in its determination of the matter. I thought I had indicated—I was indicating to the Attorney General to keep the matter within the parameters of what is permissible under the sub judice rule. I understood him to say that he would do so, and that is the basis on—[Desk thumping] Sen. The Hon. A. Ramlogan SC: Thank you very much, Mr. President. I understand my learned friends are a bit touchy on this matter. [Interruption] Mr. President, I return to the matter of e TecK. A preliminary objection was taken on the ground of limitation—the normal time for filing an action of this nature being four years. [Interruption] We are arguing— Mr. President: Attorney General, I would rather not get into the arguments that were raised in those matters. Sen. The Hon. A. Ramlogan SC: Sure. Well, Mr. President, I have not gotten into the arguments with respect—[Interruption] I am simply reciting where the matters are. A preliminary objection—[Interruption] please? A preliminary objection was taken on the ground of limitation. I go no further. Mr. President: Attorney General, you would be permitted to report on the status of the matter without going into the question of the rights, wrongs or questions that may touch upon and, therefore, act as prejudice of the court, and I ask you to keep within those parameters. Sen. The Hon. A. Ramlogan SC: Yes, and I would be guided, Mr. President. I think keeping within that, in giving the status report, in saying that a preliminary objection has been taken on the ground of limitation, that does not offend any sub judice rule. That is, in fact, a status report with respect to the factual chronology of the court action. So a preliminary objection was taken on the ground of limitation. The High Court dismissed that application and ruled in favour of e TecK; that matter is under appeal and the judgment is scheduled to be delivered by the Court of Appeal on July 18. 211 Oral Answers to Questions Tuesday, June 10, 2014

The second one—[Interruption]—I know my learned friend is a bit touchy on these matters. Mr. President: Please give silence to the answers. [Crosstalk] Sen. The Hon. A. Ramlogan SC: Mr. President, now they are saying I am giving half the story. Do they want me to go into the details? I will be happy to. [Interruption] Well, then you cannot blow hot and cold. You cannot blow hot and cold at the same time. Sen. Al-Rawi: You are the Attorney General. You are not an advocate of— [Continuous crosstalk] Mr. President: Can we proceed with the—to listen to the answer, Attorney General? Thank you. Sen. The Hon. A. Ramlogan SC: First, they want less, now they want more. The second matter, is the matter the University of Trinidad and Tobago v Kenneth Julien & Ors. Civil Claim 2013-00212. This is a claim for $12 million. In this matter the defendants applied to strike out the claim, and that application was, in fact, resisted. On April 11, 2014, the hon. Mr. Justice Vasheist Kokaram delivered a written judgment dismissing the applications of the defendants, seeking to have the case against them struck out. He ruled that there was sufficient evidence to justify the bringing of the claim, as serious issues were raised in the matter, based on the evidence, and it justified a trial in the matter. They appealed that ruling from the hon. Mr. Justice Vasheist Kokaram, and yesterday the Court of Appeal comprising, the hon. Chief Justice, Mr. Justice Ivor Archie; Justice of Appeal Nolan Bereaux and Justice of Appeal Gregory Smith, in fact, dismissed the appeal of the former board members: Dr. René Montiel, Gisele Marfleet, Scott Hilton Clarke and Errol Pilgrim. The court ruled that there was no merit in the contention, that there was no case to answer. We then turn to the case of UDeCOTT v Calder Hart, Dr. Krishna Bahadoorsingh, Leandra Rampaul & Ors. Civil Claim 2012-01753. This is a claim for $600 million against the former Executive Chairman of UDeCOTT, Mr. Calder Hart; his Deputy Chairman, Mr. Krishna Bahadoorsingh; and a former Chief Operating Officer, Leandra Rampaul. The case has to do with the mismanagement—the construction of the Brian Lara Stadium in Tarouba, and the award of contacts therein. It is at the stage of disclosure and a case management hearing is next scheduled for September 2014. [Interruption] 212 Oral Answers to Questions Tuesday, June 10, 2014

Petrotrin v Malcolm Jones CV 2013—[Interruption] I understand that the name Calder Hart evokes a lot of emotion on the other side. I see that they are a little jumpy. [Interruption] Sen. Al-Rawi: For your guidance on privilege, Mr. President, on a question of general privilege, where would you consider it appropriate to deal with half-truths given in response to answers? [Crosstalk] Mr. President: Senator, that is not an acceptable issue to bring before me. What I would say to you is that you are required—you have asked a question, you must accept the answer. [Crosstalk] The Presiding Officer is not here to determine whether it is complete, incomplete or anything like that; that could never be my role. The Attorney General is free to continue, provided he is giving us a status of the matter, and not breaching the sub judice rule. 2.30 p.m. Sen. The Hon. A. Ramlogan SC: I am grateful. I am grateful to you, Mr. President. Mr. President, in the matter of Petrotrin v Malcolm Jones, civil claim 2013-01917—this is a claim for TT $1.2 billion which arises out of the failed joint venture agreement with the gas-to-liquids plant—Mr. President, in this matter, pleadings have been closed and the next case management conference will be held on June 12, 2014. Sen. Hadeed: Three more days. Sen. The Hon. A. Ramlogan SC: Finally, Mr. President, under (f), these probes were civil in nature and have resulted in the filing of several unprecedented claims in the High Court. Some of the matters that were the subject of these probes were and continue to be independently investigated by the Trinidad and Tobago Police Service. I would not be able to provide information about the status of those investigations as the police service is an independent entity and does not fall under my jurisdiction. Thank you very much. [Desk thumping] Sen. Young: Thank you. Mr. President, through you, hon. Attorney General, in the matter of e TecK versus Prof. Ken Julien and others that you referred to a short while ago, is it not true that the Court of Appeal reverse the decision of Justice Devindra Rampersad that the matter should go to a full trial rather than hear and determine the point of limitation? Sen. The Hon. A. Ramlogan SC: I think my learned friend is inviting me to breach the sub judice principle by providing more information than I wanted to, but if my learned friend wants a detailed ball-by-ball commentary which 213 Oral Answers to Questions Tuesday, June 10, 2014 chronicles the development of the litigation, I will be happy to start with the pre- action letter and take us through a detailed analysis of the allegations of wrongdoing, fraud, mismanagement, misconduct, wastage and corruption, and I will come back and answer it in great detail. [Desk thumping]. Sen. Young: Hon. Attorney General, in the matter of UDeCOTT, is it not true as you use the pre-action protocol, that pre-action protocol letters were written since June 2011 and from that date to now, despite a High Court order as well as a Court of Appeal order that UDeCOTT provide disclosure, it still continues to fail to provide disclosure despite the orders of the High Court? Sen. The Hon. A. Ramlogan SC: You see, Mr. President, notwithstanding— [Crosstalk]—I would ignore for the time being the conspicuous conflict of interest in my learned friend seeking to advocate the case here. [Desk thumping and crosstalk] I know that they represent some of these persons and they are their clients, and I understand their anguish but, Mr. President, the reality is, in posing a question—[Interruption] Sen. Al-Rawi: Standing Order 35(5). Hon. Senators: What is 35(5)? Mr. President: I did not catch the improper motive being suggested. Sen. Al-Rawi: That my learned friend is abusing—my learned friend, the Attorney General, has said of my learned colleague, Sen. Stuart Young, that he is abusing his position in a conflict of interest scenario which can only be an improper motive to a member of this Senate and he knows better than that. Mr. President: I would ask the Attorney General to withdraw that remark. Sen. The Hon. A. Ramlogan SC: Mr. President, well, the remark was not made. Sen. Al-Rawi: Withdraw it! Sen. The Hon. A. Ramlogan SC: Mr. President, I say here, as a matter of public record, yesterday in the Court of Appeal, Sen. Stuart Young appeared— [Interruption] Sen. Al-Rawi: Mr. President, 35(5), I must insist. Sen. The Hon. A. Ram3+logan SC: It is a matter of public record. Mr. President: Attorney General, I have no problem with your reciting what is the public record. I do not think the question relates to whether representation was or was not. I think the complaint, if you like, was that the motive attributed was that Sen. Young was abusing his—and that is what is being asked, if you would withdraw it. 214 Oral Answers to Questions Tuesday, June 10, 2014

Sen. The Hon. A. Ramlogan SC: Mr. President, quite obviously, there is no such intention on my part, and I withdraw if that is, in fact, how it is interpreted. But, Mr. President, it is a matter of public record that both my learned friends—in fact, Sen. Young was in the Court of Appeal yesterday representing some of these defendants, and that is a matter of public record, and I therefore say that the question as constructed by Sen. Young seeks to elicit information from the Attorney General that will, in fact, breach the sub judice rule, the very sub judice rule that my learned friends have sought to invoke. You cannot, and I will not fall into that paradox. I gave a rather coruscating summary of what the position is, and if they wish [Desk thumping] to have a detailed comprehensive answer, I would be happy to do so. But, Mr. President, in this particular case, there has been a long and checkered and colourful history that led to the filing of these matters, and I would prefer to confine my remarks on the status of the litigation because I will not fall into the trap of being baited to say something that they can then use in court against the Government of Trinidad and Tobago. [Desk thumping] Mr. President: If I may say, Senator, I agree with the position adopted by the Attorney General. I will not, in fact, permit him to embark on matters that would bring the sub judice rule into play, and therefore the question being put should not be answered, because otherwise it could fall into that parameter which is not acceptable. Sen. Al-Rawi: Hon. Attorney General, what is unprecedented in these cases in the civil actions—if you could assist us with that? Is the breach of fiduciary claim the unprecedented that you are dealing with? Sen. The Hon. A. Ramlogan SC: Mr. President, these claims are unprecedented because there has never been a claim filed—during the eight years that the PNM was in power—against Calder Hart, notwithstanding the several allegations that were made in the public domain and during the hearing of the Lord Uff Commission of Enquiry. These claims are also unprecedented because there was never a claim filed—for the eight years that the PNM was in Government—against Malcolm Jones, notwithstanding the serious allegations made in the failed gas-to-liquid projects. These claims are unprecedented in nature because no claim was filed against the board of e TecK, notwithstanding the investment of US $6 million, TT $30 million, which disappeared without any accountability, and these claims are unprecedented because we have never had before in the history of Trinidad and Tobago, a university of Trinidad and Tobago which expended $12 million on the Aripo guest house, swimming pool, seven- 215 Oral Answers to Questions Tuesday, June 10, 2014 star, luxurious plush accommodation for a spiritual advisor, friends and family of the PNM, without any form of accountability or action being taken. [Desk thumping] Sen. Al-Rawi: Further supplemental. So, hon. Attorney General, are you saying that the unprecedentedness in your answers resides solely with who the people being sued are, as opposed to points of law? Sen. The Hon. A. Ramlogan SC: Mr. President, I am not about to fall into the trap of disclosing what points of law we intend to take in these matters, so my learned friend will have to go away being a little disappointed. The legal points we intend to take and have been taking in these matters are novel, unprecedented and extremely complex, and one day if he has the time, I will sit down and explain them to him. [Desk thumping and laughter] Sen. Al-Rawi: Further supplemental. Hon. Attorney General, arising out of your answers to these questions, will the “A team” be pursuing the board of Petrotrin for billions of dollars of losses; the board of the National Quarries Limited for millions of dollars stolen in equipment by Raldon Construction? [Desk thumping] Will the hon. Attorney General be pursuing those persons responsible for pillaging the resources of Trinidad and Tobago in the hills of Trinidad and Tobago with respect to excavation? [Crosstalk] Will the hon. Attorney General be pursuing the breaches of procurement procedure with respect to UDeCOTT, with respect to the judicial centres? Will the hon. Attorney General be pursuing the SIS/NGC unholy contract? Perhaps, you may assist. Sen. The Hon. A. Ramlogan SC: Mr. President, if my learned friend has any evidence which is cogent and compelling, I will be more than happy to give it consideration. In the meantime, I want to tell my learned friend, as an attorney-at- law, I was where he sat once, on the Opposition side, and I used the instrument of the law as an attorney in the court to file public interest litigation that challenged the then Government on the Maha Sabha radio licence case, the Trinity Cross case, under the Freedom of Information Act for my good Senator and colleague, hon. Minister Marlene Coudray, on the exercise of the constitutional veto on discrimination, inequality of treatment, fraud, corruption, mismanagement, fiduciary duty, breach of fiduciary duty, conspiracy and misconduct in public office. [Desk thumping] I invite you to read those judgments from the court in cases I argued against the PNM, and you will be able to do likewise, and if you have evidence, bring it to me and I will be more than happy to act on it but, in the meantime, feel free to take action in the public interest on your own and you will be joined. 216 Oral Answers to Questions Tuesday, June 10, 2014

Sen. Al-Rawi: Further supplemental. Hon. Attorney General, arising out of your answer to that question, we are talking about the “A team” and the use of public money being expended by the State to pursue banal civil litigation. Is the hon. Attorney General—[Interruption] Mr. President: Senator, you know, you need to ask a question. Sen. Al-Rawi: I just started. Mr. President: I know, but before you start, I do not want any more introductions, so I do not have to jump up. Sen. Al-Rawi: I can start with the general word “whether” and then put the introduction. Hon. Attorney General, are you in a position to assist us as to whether the “A team” which has spent hundreds of millions of dollars in taxpayers’ money to pursue banal civil litigation, deemed to be unprecedented simply by who you sued as opposed to points of law, whether they will be pursuing the rampant acts of corruption by the Government which you sit in? Sen. The Hon. A. Ramlogan SC: Mr. President, that is not a question, it is an editorial, but I would answer it. I would humour my friend and engage him, because I have nothing to hide. The first thing is that the “A team” has not spent hundreds of millions of dollars. That is, in fact, a deliberate attempt to mislead the Senate. He says paid, and I will correct him again, even that too is a falsity. The “A team” has not been paid hundreds of millions of dollars, but I think what my learned friend is getting confused with is that their work has resulted in claims that will lead to the recovery of hundreds of millions of dollars [Desk thumping] and therein lies the sensitive crux of the matter that causes such anguish, you see. With respect to the other matters, I want to invite my learned friend again, if there is any matter and which he has evidence, I invite him to do the following, which is what I did when I was in Opposition. I want to invite him to do the following: Mr. President, when you have a grouse—we are governed by a Constitution which is the supreme law of the land—for any client and any citizen of this country—whether it is in Government or not, whether it is by the doubles man or the high corporate office—what you must do is, you must do as I did, report it to the Integrity Commission of Trinidad and Tobago. You must take it and you must report it to the Trinidad and Tobago Police Service and you can refer it to the Office of the DPP. Those are the offices that are charged with the responsibility by law to deal with criminal investigations. [Crosstalk] Mr. President: Senators. 217 Oral Answers to Questions Tuesday, June 10, 2014

Sen. The Hon. A. Ramlogan SC: Now, if you wish to pursue general public- spirited litigation to prove a point rather than to come and blow hot air and hot steam and make all these banal allegations, [Desk thumping] instead of making all these banal allegations and blowing all of that, what you can do is take the matter to court under section 5 of the Judicial Review Act and you can get your evidence and you will be able to test it there. Mr. President, when you had the freeing of the two Bajan fishermen, I judicially reviewed the Office of the DPP. When you had the 18/18 tie and the PNM refused to pay a single UNC Member of Parliament their salary [Desk thumping] and for a whole year starved the Opposition, I took that matter as a constitutional motion before the High Court, I lost; before the Court of Appeal, I lost, and in the Privy Council it resulted in a landmark historic judgment that is today quoted all over the world. When I felt my client the Sanatan Dharma Maha Sabha was a victim of discrimination by the People’s National Movement, I filed a constitutional motion. I did not go on a platform or come in the Senate and say: “Well, all yuh doing this and all yuh doing that.” No, no. I filed a case in court and I fought them. I won the Maha Sabha radio licence case in the High Court and I became the only attorney, having won the matter, to appeal to the Court of Appeal. I won in the Court of Appeal, and notwithstanding the fact that I won there, I appealed to the judicial committee of the Privy Council and the first point was: can a winning party engage the appellate jurisdiction of the Judicial Committee of Her Majesty’s Privy Council? I overcame that hurdle and the judicial committee, when they saw the extent of the rampant racism and discrimination they ordered the Government to grant them a radio licence. [Desk thumping] 2.45 p.m. When I represented Sen. Devant Maharaj against the National Lotteries Control Board and then Prime Minister Patrick Manning for discrimination and unfair treatment, Sen. Maharaj was complaining and I told him to stop talking about these things—“doh carry on yourself and gallery”. I told him to bring the evidence and I filed three judicial reviews—against the National Lotteries Control Board, the Statutory Authorities Service Commission and the Attorney General, and in all three matters we were successful and they had to promote Sen. Devant Maharaj. [Desk thumping] When Sen. Marlene Coudray came and complained about the fact that the Prime Minister had exercised a constitutional veto to block her, to try to get rid of her as the CEO of the San Fernando City Corporation, I immediately filed for 218 Oral Answers to Questions Tuesday, June 10, 2014 judicial review. When I filed for the judicial review it was the first time in legal history that the constitutional veto given to a Prime Minister was in fact challenged in a court of law, and that case we won and today Marlene Coudray sits as a Minister. [Desk thumping] So, Mr. President, today I want to invite my learned friend—“talk cheap, evidence expensive, law is priceless”; get to the court and prove your claims. [Desk thumping] Sen. Al-Rawi: Further supplemental, Mr. President. Hon. Attorney General, are you able to indicate how one is able to use the provisions of the Judicial Review Act when no decision has been made? Sen. Maharaj: Indecision is a decision. Sen. Al-Rawi: Axiomatic. Sen. The Hon. A. Ramlogan SC: Yes. [Interruption] No. No. No. I think Sen. Devant Maharaj gave the answer but I will engage you. In the Judicial Review Act, Senator, decision is defined as including inaction. It is also defined as including, in public administrative law, it is also defined as including a failure to act or an omission. So, in fact, it is a fundamental misconception of elementary and basic public law to think that you need a decision before you can act. In fact, in the Maha Sabha radio licence case, when I reported that matter to the Integrity Commission they failed to act, and I took the Integrity Commission to court on the ground that they were guilty of inordinate and unreasonable delay, and they were failing to take action against rampant PNM discrimination. [Desk thumping] When I filed that matter against the Integrity Commission they then proceeded swiftly to complete the investigation, refer the matter to the DPP, and the DPP has indicated, only months ago—after five years—that he was not going to lay charges, notwithstanding the reference, and he gave his reasons why, which I accept. Mr. President, those are the facts. My learned friend cannot come here and base a submission on a fundamentally flawed premise. You can take action in judicial review whether there is a decision or not. If my learned friend wishes to have assistance in that regard, I will be happy to provide it to him. Sen. Al-Rawi: Further supplemental. So, hon. Attorney General, are you taking action through the A-team in relation to the rampant allegations of corruption against state entities falling under your Government? Yes or no? Sen. The Hon. A. Ramlogan SC: Mr. President, the evidence has revealed, based on the Cabinet probes, and we have in fact taken action against, Mr. Calder Hart, Dr. Krishna Bahadoorsingh, Leandra Rampaul, Malcolm Jones, Dr. Rene Monteil, Ken Julien and all of the others. 219 Oral Answers to Questions Tuesday, June 10, 2014

If my learned friend, for the umpteen time, has evidence and does not know what to do with it, I can supply him with the address for the office of the Commissioner of Police, the Integrity Commission and the DPP, and if he so desires, I will help him by transporting any letter he has and deliver it for him. But my learned friend is not entitled to create this kind of misconception and this kind of public mischief that, you know—well I will not send it to the Commissioner of the Police but I want some A-team to investigate it. I have indicated the remit of the A-team and that remit has been satisfied. The mandate has been fulfilled and it has resulted in legal claims against boards under the PNM, and the legal claims total in excess of TT $2 billion. [Desk thumping] Sen. Al-Rawi: Final further supplemental for me, Mr. President. Hon. Attorney General, does the A-team’s mandate also include a failure of state enterprises or entities under the Government’s supervision to deal with a terrible sickening problem of rat infestation? Sen. The Hon. A. Ramlogan SC: I want to advise, Senator, I also have the address and number for Rentokil and, if he so desires, I will supply it to him. Mr. President: Sen. Vieira, you had a question? I do not know if it is still material. Sen. Vieira: It is okay, thank you. STATEMENT BY MINISTER Hyatt Arbitration The Attorney General (Sen. The Hon. Anand Ramlogan SC): Thank you very much, Mr. President. When I assumed office as Attorney General, I inherited a virtual avalanche of litigation and legal claims in this country. The claims totalled billions of dollars, and we hear a lot about the state of the economy with the Clico fiasco and the failure of the Hindu Credit Union. We hear about the state of the economy and so on, but we do not often hear about these matters which had a massive impact with great consequences for the Treasury. It required careful and skilful management to deal with these legal claims, Mr. President. Today, I wish to report on the successful resolution of yet another important commercial dispute against the State. Before I do so, permit me to give a glimpse of the difficult work that has been going on behind the scenes at the Ministry of the Attorney General to manage the legal ship of Trinidad and Tobago. To date, the office of the Attorney General, we have managed litigation that had a risk exposure of billions of dollars for Trinidad and Tobago. The exorbitant cost 220 Oral Answers to Questions Tuesday, June 10, 2014 overruns and mismanagement on several mega projects initiated under the former administration, including the Ministry of Legal Affairs towers, the Government Campus Plaza and the Customs and Excise building, to name a few. Apart from these mega projects, which resulted in this avalanche of litigation, we also had several international commercial disputes. The first one, of course, was the offshore patrol vessels, the OPV arbitration. Mr. President, contrary, of course, to the misinformation being peddled in some quarters, this Government did not in fact cancel the OPV contract. What happened was that the weapons firing capability on the vessels contained a deficiency that was not in accordance with the contractual specifications, and because of that I advised against the acceptance of the offshore patrol vessels because of the deficiencies in the weapons firing combat capability. To accept those vessels with a downgraded combat facility that did not allow for it to reach its target or to accurately fire would have been disastrous. The vessels were compromised and, therefore, quite rightly, in my view, rejected. The Government defended the BAE’s claim and aggressively pursued a billion-dollar counterclaim. I personally testified in that matter on behalf of the State and I was cross-examined for a period of an entire day. I think it was two days in that matter by BAE’s leading lawyers. Despite the predictions of a loss that would have resulted in the payout of hundreds of millions of dollars to BAE, the Government eventually emerged victorious with a $1.4 billion settlement for the people of Trinidad and Tobago. [Desk thumping] The second major arbitration was the World GTL arbitration. Those two arbitrations have in fact been completed, and that project cost Petrotrin $2.7 billion and that failed GTL plant has to now be sold as scrap iron. Mr. President, $2.7 billion in a failed gas-to-liquids plant that must now be sold as scrap iron. On December 4, 2012, I reported in the first leg of the arbitration which took place in Toronto, Canada. The tribunal declared that WGTL was in breach of its obligations and ordered it to transfer 9,398,211 common shares of WGTL Trinidad to Petrotrin. They were also ordered to pay our legal costs in the sum of over $14.5 million. On April 25, I announced that we had won a second arbitration in this GTL matter in the London Court of International Arbitration. Our risk exposure in that arbitration, had we lost to WGTL, was $1.8 billion. The impact on the Treasury would have been significant. The repercussions would have been far-reaching. Happily, WGTL’s claim was dismissed and again they were ordered to pay our legal costs in this matter. [Desk thumping] Just to dimension the size of the 221 Statement by Minister Tuesday, June 10, 2014 problem, Mr. President, it was so great that during the financial years 2009 to 2010, Petrotrin had to report this as an impairment loss in the sum of $2.7 billion. [Desk thumping] The next major illegal headache that we inherited was the Scarborough hospital. The contract price for the construction of the Scarborough General Hospital was $140 million. Mr. President, $140 million to build the hospital. In the end, it cost taxpayers over $500 million. Several complex disputes arose out of this which are at various levels in the court system, one of which is going to reach the Privy Council shortly. I come now, Mr. President, having outlined those, to the matter at hand, and that is the Hyatt arbitration. I am pleased to report on the successful resolution of yet another multimillion-dollar international arbitration under my supervision and management. [Desk thumping] On February 04, 2011, Hyatt issued a request for arbitration against UDeCOTT. The dispute arose out of a hotel management agreement dated July 27, 2005, between UDeCOTT and Hyatt for the construction and subsequent management and operation of the Hyatt hotel, which is right next door. Mr. President, under this hotel management agreement, UDeCOTT agreed to finance and construct a first-class hotel facility entirely at its own cost. The hotel was then to be managed and operated by Hyatt in return for a fee. A key point of dispute arose from the fact that UDeCOTT assigned its leasehold interest in the land on which the hotel was located to the Port of Spain Waterfront Development Company Limited. That waterfront company purchased the land through a mortgage with Wells Fargo Bank Northwest, National Association, and, in turn, subleased it to the Government of the Republic of Trinidad and Tobago. Unfortunately and inexplicably, UDeCOTT’s then Executive Chairman, Mr. Calder Hart, negligently failed to procure at the time of transferring the leasehold to the Waterfront Development Company—he did not procure the required non-disturbance agreement from the Waterfront Development Company and the bank, Wells Fargo. Now, imagine you have a hotel and something as basic as a non-disturbance agreement which was contained in the original hotel agreement between UDeCOTT and Hyatt, and you are going to have the superimposition of an intermediary in the form of the Port of Spain Waterfront Development Company, which subleases to the Government, and you do not see it fit to negotiate the very same non-disturbance clause so that the hotel can be on “all square fours” as it was in the original agreement. It was this negligent omission, on the part of the board led by Mr. Calder Hart, that resulted in the Hyatt refusing to pay UDeCOTT any money in accordance with the terms and conditions of the hotel management agreement. 222 Statement by Minister Tuesday, June 10, 2014

This severely compromised UDeCOTT’s cash flow and financial position for many years as hundreds of millions of dollars in anticipated income from the Hyatt just never materialized. To make matters worse, despite the fact that the Hyatt had not paid UDeCOTT since 2008—Mr. President, I want to underscore this—since 2008, the Government through UDeCOTT, having solely financed and constructed the Hyatt hotel, and having entered into a hotel management agreement with the Hyatt in exchange for a fee, since 2008 Hyatt has never paid that management fee to UDeCOTT. It was in those circumstances that on February 04, 2011, the arbitration clause was triggered and this resulted in arbitration proceedings under the rules of the International Chamber of Commerce with Toronto, Canada, being the venue for the arbitration hearing. These claims appeared to be for alleged breaches of the hotel management agreement. This is Hyatt suing us—so, we did not file for arbitration; they did. 3.00 p.m. These claims appear to be for alleged breaches of the Hotel Management Agreement, which were not the subject of a dispute at the time of the arbitration. I therefore instructed the legal team to challenge the tribunal’s jurisdiction to entertain these aspects of the claim, having regard to the fact that they did not, in fact, arise properly on the factual matrix at the time when the arbitration button was pushed. The three heads of the claims for alleged breaches were: an unparticularized agreement to construct an additional food and beverage outlet and retail space; sections 3.10(a) and (b) in failing to approve the annual plan and capital expenditure required to maintain the hotel, and section 8.8(b) in failing to properly maintain and operate the parking garage associated with the hotel. Mr. President, UDeCOTT promptly filed its answer and counterclaim on December 09, 2011 and challenged the evidential basis for these claims, which were not presently particularized. Furthermore, the Hyatt, in an interesting tactic, did not dimension the size of the compensation they were claiming in their arbitration claim against the Government. They said that they would quantify it during the course of the arbitration. Such an open-ended claim posed a significant risk to the Treasury, because it could mushroom and you do not know where it would end. In the fourth head of the claim, they alleged that under section 8.4 of the Hotel Management Agreement, that UDeCOTT’s assignment of its leasehold interest in the land meant that UDeCOTT was no longer the owner, in accordance with the 223 Statement by Minister Tuesday, June 10, 2014 terms and conditions of the agreement. Hyatt therefore sought a determination as to which entity is entitled to the distribution of the funds, pursuant to section 3.14 of the agreement. This became the main battleground in the arbitration, as this was the reason why Hyatt was withholding the moneys from UDeCOTT. I maintained that this was an artificial defence put up by Hyatt because UDeCOTT’s right to ownership and its claim to the moneys due and owing under the Hotel Management Agreement could not be questioned in a court of law. I maintained that because the Port of Spain Waterfront Development Company to which the land was transferred, pursuant to the mortgage from Wells Fargo Bank, was in fact a wholly-owned subsidiary of UDeCOTT. We denied that there was any ambiguity regarding UDeCOTT’s entitlement to receive the remittance moneys, and we denied that the failure to procure a funder’s or lessor’s non-disturbance agreement gave rise to any viable claim for damages before the arbitral tribunal. The minute we filed our counterclaim in this matter, and the minute I challenged the jurisdiction of the tribunal, after those legal strategies were employed, Hyatt’s attorneys wrote us to say they would like to have discussions. Mr. President, those discussions, against the backdrop of our swift and very forceful counterclaim, provided fertile soil for the resolution of this agreement. Today, I am pleased to announce and advise that after difficult and complex negotiations with Hyatt’s lawyers, we have achieved a settlement pursuant to which a multiparty agreement was signed on June 02, 2014. In accordance with the terms of that settlement agreement, Hyatt has agreed to pay UDeCOTT the sum of TT $334,185,703.19. [Desk thumping] That is $334 million into the coffers of UDeCOTT, [Desk thumping] as a result of this matter. [Crosstalk] It includes interest and legal costs. This will enable UDeCOTT to complete so many public infrastructure projects that they have been waiting on this money to use for the benefit of the people of this country. I wish to record my thanks to the legal team which represented UDeCOTT, Mr. Akbar Ali of AFA Law, a UK lawyer with more than 38 years’ experience in international commercial matters and Mr. Alan Newman QC. They came up against a formidable and powerful legal team retained by the Hyatt Hotel, starting with the international firm of Crowell & Moring LLP from Washington DC. They have 500 lawyers with offices in New York, California, London and Brussels and, subsequently, they moved to an even larger firm of Weil Gotshal & Manges LLP of Washington DC, with 20 offices worldwide and over 1,200 lawyers. 224 Statement by Minister Tuesday, June 10, 2014

Mr. President, I am pleased therefore that this arbitration, by being settled, has saved us a protracted legal battle that would have cost this country over $10 million in a legal budget to resolve, and get this result. [Desk thumping] I am pleased to say that as a result of these efforts, UDeCOTT today is enriched to the tune of $334 million. I thank you. Sen. Robinson-Regis: What are they doing with the money? Sen. The Hon. A. Ramlogan SC: I want to just announce as well in response to the question, that the UDeCOTT has, in fact, confirmed receipt of the moneys, and what they are going to do with those moneys is to complete public infrastructure projects in the interest of the people of Trinidad and Tobago. [Desk thumping and crosstalk] PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC PROPERTY BILL, 2014 [Third Day] Order read for resuming adjourned debate on question [May 27, 2014]: That the Bill be now read a second time. Question again proposed. Mr. President: Hon. Senators, those who spoke on previous occasions were: on Tuesday, May 20, 2014, Sen. The Hon. Dr. Bhoendradatt Tewarie, Minister of Planning and Sustainable Development; Sen. Faris Al-Rawi; Sen. Helen Drayton; Sen. The Hon. Kevin Ramnarine, Minister of Energy and Energy Affairs; Sen. Dr. Lester Henry; Sen. Dr. Rolph Balgobin, and on Tuesday May 27, 2014, Sen. The Hon. Gerald Hadeed, Minister of Tourism; Sen. Stuart Young; Sen. Ian Roach; Sen. Ashaki Scott; Sen. Diane Baldeo-Chadeesingh; Sen. Elton Prescott SC; Sen. Avinash Singh; Sen. Anthony Vieira; Sen. David Small; Sen. Rev. Joy Abdul-Mohan and Sen. Dr. Aysha Edwards. Sen. The Hon. Dr. Bhoendradatt Tewarie was on his legs when we last parted company. He has another 40 minutes of original speaking time remaining. The Minister of Planning and Sustainable Development (Sen. The Hon. Dr. Bhoendradatt Tewarie): Thank you very much, Mr. President. On the last occasion I really spent my five minutes or so in beginning the winding-up to debate on the Bill, thanking some of the Senators for the graciousness that they had basically meted out to me and, by extension, to the Government of Trinidad and Tobago, for the manner in which they treated the Bill. 225 Public Procurement Bill, 2014 Tuesday, June 10, 2014

I do want to continue in that vein to thank, first of all, the Independent Senators, all of them really, who contributed to the Bill. I know not all of them were able to contribute the last time, but I do want to congratulate in addition to Sen. Aysha Edwards and Sen. Anthony Vieira, the other contributors who were all significant really, in terms of the things that they said and the contributions that they made: Sen. Roach; Sen. Elton Prescott SC; Sen. Drayton; Sen. Rev. Joy Abdul-Mohan and Sen. David Small. Sen. Al-Rawi: Thank you hon. Minister. [Laughter] Sen. The Hon. B. Tewarie: There were many contributions by the Opposition, and I will address those, but I also want to thank on our side as well Sen. Ashaki Scott who gave her maiden contribution there; Sen. Gerald Hadeed who contributed on this side and Sen. Kevin Ramnarine, who also spoke very pointedly on some of the issues here. The contributions on the Opposition side varied. I think that Sen. Young basically found a way of making peace with the Bill and, in my sense of his own disposition at the time, he basically saw the Bill as a Bill for reform and indicated that really he would have no problem supporting the Bill, but we will see. Sen. Dr. Henry made some good points, and he also, I think, if he had his personal decision to make would more than likely support the Bill. Sen. Diane Baldeo-Chadeesingh, [Interruption] I did not mean to mispronounce her name, found the Bill inflexible and inadequate and poorly drafted, and chastised the Bill really, things which were refuted by contributions from the Independent Bench. So I do not know if she is disposed to support the Bill. Sen. Al-Rawi, what can I say? Generally he is very knowledgeable on his feet and prepares well and makes a solid contribution, if he is nevertheless prone to excesses and alarmist tendencies, [Laughter] but on this particular instance he did not speak to the substance of the Bill at all— Sen. Al-Rawi: What? Clause by clause. [Laughter] Sen. The Hon. B. Tewarie:—and basically sought to raise issues that he felt would have a personal connection with me and therefore help to undermine the entire intention of the Bill. Sen. Al-Rawi: Sen. Prescott SC said half of what I said. Sen. The Hon. B. Tewarie: I did not mention among the Independent Senators, Sen. Dr. Balgobin, he also made a significant contribution and especially on the issue of value for money. [Crosstalk] I think all in all we had a good debate. We had varied points of view and many issues raised. I would 226 Public Procurement Bill, 2014 Tuesday, June 10, 2014 therefore like to thank all Senators who contributed, [Desk thumping] whether they were well-disposed to the Bill or not, and I thank them for their contribution. I feel that in the end too, because of my own approach towards this, I think that all the contributions have helped in assisting me in choosing some of the amendments that I think are going to be very valuable in the betterment, so to speak, of the Bill. In this particular instance of procurement legislation in Trinidad and Tobago, we have consistently on this side taken a consensual approach. We have taken this from the beginning. I want to say that when this matter came to the Parliament, when the hon. Prime Minister made it to be a matter which went to a joint select committee in the two Houses of Parliament, from that moment on the position of the Government was that we would not declare a policy on procurement legislation. We would prefer if the policy for procurement legislation came from the committee of Parliament and then was agreed by Parliament. That was not to be, and in the end we had to draft a policy, take it to the Cabinet, bring it back to the committee, make adjustments to it and finally have a debate on an adjusted policy. But I want to make the point, and I want to emphasize the point, that the Government’s approach to this matter from the very beginning, regardless of who was chair of the committee, was to take an approach which brought consensus to the procurement issue in Trinidad and Tobago. [Desk thumping] 3.15 p.m. The second thing is that, some would remember that on one occasion the Opposition withdrew entirely from the joint select committee process, and instead of going for a confrontation and politicizing the process and derailing the procurement Bill, we chose instead to work and manoeuvre with the parliamentary system. I changed the quorum in order to prevent the Opposition from sabotaging the joint select committee process. I went into the House of Representatives under the guidance of the Leader of Government Business there, prepared to bring to debate the issue of the change of quorum. And on that basis there was an understanding, and the Opposition came back to the joint select committee, and we were able to get the committee’s report completed. When we came to debate that committee report, the Opposition debated it, but the Opposition did not vote for the report, they abstained. Again, we did not make a big fuss. We did not make a big splash. Every party is entitled to their opinion, and we proceeded with our business because the objective at hand was to get the 227 Public Procurement Bill, 2014 Tuesday, June 10, 2014 procurement Bill as law, so that the country could be better off, and that transparency would begin to attend, in terms of public confidence, the procurement process in Trinidad and Tobago. Again, when we brought the first draft of the Bill to Parliament there was a furore on the outside. And the first call from civil society and the private sector was to withdraw the Bill entirely; get it out of Parliament. We would not debate it. And I was challenged to a debate outside of the House, but you know, some take bait and some do not; I have been a long time in this business, and I know that the way you get things done is by doing it. And the way you get things done is by working with people. And the way you get things done is by understanding that you cannot talk and shoot at the same time. [Desk thumping]. And therefore, behind the scenes, we worked with civil society over a long period. We took the Bill back to Cabinet, back to the Finance and General Purposes Committee, back to the Legislative Review Committee, engaging the private sector, civil society, outside of the process, bringing them into the parliamentary process through the Legislative Review Committee, et cetera, and at the end of the day, reaching the basis, again, for consensus. When we came into the House of Representatives to debate—Senate, sorry, Mr. President—and to present the Bill, we said from the very beginning that we know that this Bill will not be perfect, but it is a good Bill, and that it is perhaps the best Bill and the best chance we have of having a good Bill. And on that basis we said, that if there are suggestions for amendments that are reasonable, we would take them into account. I want to say that we have circulated here today a version of the Bill in which I have taken the time, together with colleagues, to take into account the various proposals for amendments that were made during this Senate. I said as I began the closing of this debate that one could not expect, and one could not consider it reasonable, that every suggestion for an amendment would be taken into account and included. And therefore, we have not taken everything into account and included them, but we have considered each one in turn [Desk thumping] in the context of the philosophy, in the context of the intention of this particular Bill, and more important than all, the coherence that we want to bring to the Bill. There are additional amendments that have been circulated in the name of Sen. Helen Drayton, and we have taken some of her suggestions already here into account, perhaps not in the same wording that she suggested it, and amendments have also been circulated by Sen. Vieira. And again, we have taken some of them into account, not all of them into account. 228 Public Procurement Bill, 2014 Tuesday, June 10, 2014

If we consider this Bill clause by clause, as we are supposed to do in committee, and it is very easy to do it because all the changes that we are suggesting are in red in this Bill. It is very easy to follow, and it will be in a situation in which we can sense the coherence, the philosophical consistency, et cetera, in the Bill. And I dare say, if we can agree on this Bill today, as I think we will, what is going to happen is that we would have really done a good piece of work, a good piece of legislation in this country. We would have provided the basis of good procurement law in this country, and I have no doubt that this piece of legislation will become a model for procurement law in many countries of the world, and I think it will be referred to, and this has been a collective effort. I want to go on record as thanking the Attorney General’s office, and more particularly the Chief Parliamentary Counsel and his team [Desk thumping] for the work that they did to fashion a Bill that was genuinely good quality, both in substance and in style. I want to say that what we are doing here is not being done lightly. This is a formal commitment that we have made to this country. Our hon. Prime Minister made it on the platform. She made it in her direct commitment to the JCC at the time. The manifesto contains a commitment to it. The medium-term policy has a commitment to it. And this has been a commitment all along. And the fact that it has taken so long to get here has nothing to do with good intentions, has nothing to do with not wanting to do it, and has nothing to do with inertia on the part of the people on the Government’s side; I want to say that. It has been a long and difficult process, partly because of sabotage, and sabotage intent on the one hand, but also because of uncertainty and the cacophony of contending views about this matter. Because on the one hand, we came to the Parliament saying we want a consensus document. On the other hand, the Opposition said to us, write your policy, and then we will see if we will agree with you. And then you had civil society basically saying, we have a Bill already, “doh” write any other Bill, take our Bill as the Bill for procurement. Which government in the world is going to do that? A government will consider anything, if it is reasonable. A government will take anything into account, if it is reasonable, but a government cannot have something shoved down its throat if it is a serious government. And I want to say that I am part of a serious Government, and as a serious Minister, I am not doing that. [Desk thumping]. So, we have taken the views into account, and we have incorporated them in the amended version of the Bill. We have built consensus at every stage, and we hope to have a consensus vote on this Bill. I think, from what has been said so far, we are going to get the support of the Independents, together with amendments, et 229 Public Procurement Bill, 2014 Tuesday, June 10, 2014 cetera, that we may have to do. I do not know what is the position of the Opposition, and I leave it to them; it is up to them. I cannot tell them what to do. All I would say is, that this is a good Bill, and if you did not vote for this Bill, I do not see which Bill in Trinidad and Tobago you are going to vote for. [Desk thumping]. So, that we have come here today, is really on the basis of action rather than talk. We have talked—yes. We have had to talk to get to consensus, to get to agreement, to get to the point where we can move forward, even if slower than we had intended, but it is based on solid action to get here. And I want to stress, as I stressed in the presentation at the beginning of the Bill, that this Bill is about building a key institution, which is the office of the procurement regulator, which is then tied in with the transparency of the procurement process, the accountability issue in procurement, but which is then linked to, first of all, the depoliticization of the process through the office the President. Secondly, the office of the DPP for prosecution, the Commissioner of Police, again for prosecution where necessary, and which is linked to the parliamentary process and the parliamentary committee process, under section 66A of the Constitution, in order to provide that kind of independence autonomy, but careful oversight over the procurement process in Trinidad and Tobago. And institutions are important. And I want to acknowledge that this institution is an important addition to the sum of institutions in Trinidad and Tobago. It will go a long way to help the process if we are able to make this a reality in Trinidad and Tobago. But I do want to say something about law versus enforcement and about a culture of compliance. I want to say that it is fine to make good law, but at the end of the day the law has to be enforced. If you do not have the enforcement mechanisms for good law, good law is going to become irrelevant, and bad habits are going to replace the compliance requirements of good law. Therefore, I want to say, the enforcement mechanism in this, and the institutional support that is required to do this are very, very important in this country. A culture of compliance does not come like that. A culture of compliance only comes when enforcement is a corollary to the establishment of good law. [Desk thumping] So that, if people know that to break the law will lead to a consequence and that they will have to feel the pain of that consequence, it is automatically a deterrent, a disincentive, to break the law. Therefore, it is important to understand as we pass this Bill that the institutional capability that we need to build, the enforcement capability that we need to build, and the insistence on compliance from enforcement that is necessary, are all part of the framework that we need to put in place to make this country a better place. 230 Public Procurement Bill, 2014 Tuesday, June 10, 2014

And the other thing that I want to talk about is character. Character is not something you could buy in the marketplace, and the reason people do things contrary to the law, because law is not enforced is because they have no character. They feel they can get away with it, and they will do it. And as long as they can get away with it, they will continue to do it. And I want to say that this goes for government, this goes for the private sector. This goes for the citizenry in Trinidad and Tobago. There are big thieves and small thieves. You need to understand that a culture does not evolve [Crosstalk] like that because you want to make it so. You have to create the conditions for cultural evolution—if you want to call it that—cultural transformation, cultural compliance, and this, by habit, then is inculcated through the institutions of society, including the schools which then help to build the character that you need that conforms to your idea of the society you want to have. So this is no easy thing. Therefore, what I am saying is that it took us 50, 60 years to get here. It is not going to take us one month to transform the process; I want to say that. It is very important to understand. And the 50, 60 years that it took to get here, did not—must take into account the fact that this Government has been in power only for four years. I want you to understand that. Nothing that this Bill speaks to is about the current Government in office. This is part of our promise, and part of our commitment. [Desk thumping] 3.30 p.m. The evolution and the culture which prevails today, for which this is seen as a possible solution, as a possible intervention in order to reverse and arrest the tide of escalation of corruptive practices in the country, is something that was set in motion years ago and escalated, and escalated, and escalated, till the point now where people begin to believe that it is out of control. The allegations have become fiercer and they have become more horrible, they have become more baseless but, at the same time, they are part of the whole quarrel in the society, the quarrelsome nature of our society that really leads to our disintegration, and what this society needs more than anything else is healing. The society needs to heal. We need to heal our individuals, they are broken; we need to heal our families, they are broken; we need to heal our communities, they are broken; we need to heal our institutions, they are broken; we need to heal the society, it is broken and it is persisting in tearing itself apart, and that is not, in the end, going to do anybody any good. It is not only the adults now that are affected, but the greatest victims in the society, as we read every day and get to know every day, our children are our worst victims. That should tell us unless you stop it now, it is never going to end. 231 Public Procurement Bill, 2014 Tuesday, June 10, 2014

So, procurement is not about procurement at all. I said that this is symbolic last time, of the nature of the society and what this society needs to do. This procurement legislation is more than about money and procurement. It is about the character of the society itself and what kind of society we want to have, what kind of people we need to be, what kind of people we want to be, what kind of people we are capable of being. In a minority report written in 1976 when the Wooding Commission reported on the Constitution to the then Prime Minister Eric Williams, debated in Parliament and eventually thrown out, in that minority report Solomon Lutchman said, only a great people can write a great Constitution. [Desk thumping] I was going to say something about Sen. Al-Rawi’s contribution as the main spokesman for the Opposition, but I think I will leave that for now. I want to emphasize instead that this is part of governmental action and achievement, and it is keeping with the philosophy and style of this Government to deliver on the things that we have committed to. We have committed in the manifesto certain things, the medium-term policy, we have measured our performance in 2012 and 2013, we have recorded what we have done in terms of the promises of the manifesto, over 260 commitments made, over 250 of them either done or in process, and this is part of that process, this is one of the promises, this is one of the commitments. In that manifesto we built it on seven pillars, all of it very people focused, but we called for nine policy shifts, and one of those policy shifts had to do with the quality of governance. And prior to this debate on this particular Bill during the question time, you know, questions were being bandied about—I do not want to run from one thing into the other, but it is relevant because it is about procurement and it is about integrity and honesty and stuff like that, and there were questions being asked about certain boards, and when you look at it, when there have been instances in which Ministers have brought the Government into disrepute, there has been action. When there have been boards that have brought the companies into disrepute, there has been action. I can go in the achievement documents and I can pull it out and I can mention the names, I can mention the dates. And it is important to understand that any institution will fail, it depends on what you do about it. They will make mistakes. Any government is bound to make mistakes. The question is what do you do when the mistakes are made? What do you do when things happen that should not happen or should not be tolerated? And I think that is the difference. The question therefore, there is so much noise about 232 Public Procurement Bill, 2014 Tuesday, June 10, 2014 procurement, what do you do about it? And this is part of our action, part of the achievement, and that is why I did not want to do anything to derail this Bill; I did not want to do anything to get into a quarrel with anybody; I did not want to win any verbal battle with anybody. I wanted to get the Bill passed so we could build an institution, so that we can do something for the country, so that the country will have something that it can then look to, to make things better. [Desk thumping] Where does procurement fit? What is the vision for this country? I want to say something to you. Based on the figures—this Government does not operate by guess. Contrary to what the Opposition says, I can pull out all the plans, I have them in my bag here, from manifesto to medium-term, to working for sustainable development document, through annual reports, through the human development atlas which takes us from 2010; the census report of 2011, the national spatial strategy. I can pull them all out here to show you. All right? Everything that we have done in the five years that we have been here has been documented and has been based on solid research. Let me tell you something about what is happening in the population. We are looking at the population research now that we have the 2011 report. If we continue at the birth rates that we have at the present time, which is 0.5—half a per cent—by 2025, there will be a reversal of the 1.3 million population that we now have. Okay? That is what is going to happen to this country. And I want to say that the rate of birth in Tobago is three times the rate of birth in Trinidad, because it is 1.5 per cent. A little island of about 60,000 people. [Interruption] The other thing, when you look at the population, is that you are seeing that the population itself is ageing. This is something that is common with every society. But what you are seeing about this ageing population, which is sometimes different from other countries, is that this ageing population is afflicted by non- communicable diseases: diabetes, heart disease, et cetera, which has implications for health care, which has signals for preventative medicine, which has implications for lifestyle, which has implications for how these people are going to be absorbed or taken care of in the society. When you look at the population you see a big bulge in the middle. The youth population is significant, but it is not that large, and with the birth rate you are not going to have replenishment. So, it is important to understand something about Trinidad and Tobago. I said when I talked about this procurement Bill that it is not only about corruption, it is also about development, it is about how you use the procurement process using international and local companies, to develop these companies and develop this country. 233 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Our Prime Minister, speaking some weeks ago, indicated that she would like to see a society—she asked the question: why can we not double the GDP in this country? Why can we not double the per capita income? Why can we not create a society in which you have an expanding middle class, in which more and more people get the benefits of education, who get the benefits of homeownership, who get the benefits of higher value jobs, who get larger incomes and who can contribute more in entrepreneurial terms to the society? She asked those questions. And I want to say that given the kind of population base that we have, it is not possible at this level of productivity and this level of population, to get that kind of thing in any realistic time frame, which is within our lifetime. So that we have got to think significantly about how you raise the productivity system in this country. How we do the things that would make us leap economically, because this is a country that is a small society. But it is a society already of high achievement and with many, many opportunities before us that we can seize, and therefore as we look at the population itself, and we began with that, we did a survey of the population at the year 2010 to see what is the state of human development. We are now doing a poverty survey so that we would know what the state of poverty is and whether we have been reducing it. We have reduced the unemployment rate to about 3.7. We know that we are in growth now. [Desk thumping] We know that the private sector is screaming for workers which they cannot get; we know that there needs to be a transition between state employees in makeshift work into the private sector that can only come with training and development and equipment with skills, and the Minister of Tertiary Education and Skills Training and workforce training is focused on that. But, as you begin to do these things to make the economy leap, you have got to get your systems right. You cannot have a laissez-faire kind of attitude in which everything is going on every which way you want, everybody is doing anything that they want, where things are proceeding in a haphazard way without organization, without strategy, et cetera, that are not linked to a national development framework, if you want to make that leap that we want to make for Trinidad and Tobago. This is just one element of things. There are many, many things that we are doing. There is a lot of reform taking place; there are a lot more people being educated today than ever before, at the preschool level, primary level, secondary level, tertiary level; there are more people involved in graduate education; there is more diversification taking place, incipient as it is, because the energy sector remains strong, but even there you have diversification in the other sectors. So, it 234 Public Procurement Bill, 2014 Tuesday, June 10, 2014 is important to understand that as the economy grows the kind of procurement system that you have is essential for creating a society that is different, not just in quantity—how well you do economically, what GDP, what per capita income— but it is also different in qualitative terms—what kind of character of the people; what kind of systems do you have that ensure transparency and accountability and honesty in the system. This is very important. Mr. President, I think in this debate we have had a lot of contributions. I do not want to go into the details. I do not want to deal with every amendment on the floor here. We will deal with it in committee stage. What I do say is that the consensus spirit continues, and we will engage—I hope Senators will be reasonable and understand that I cannot take every amendment. It does not make sense. But those amendments that can be accommodated, we will accommodate, so that we can get a better Bill. And I thank you all for supporting this effort and supporting this Bill. [Desk thumping] Mr. President, I beg to move. Question put and agreed to. 3.45 p.m. Bill accordingly read a second time. Sen. G. Singh: Mr. President, can I approach? Mr. President: Sure. [Interruption] ARRANGEMENT OF BUSINESS The Minister of the Environment and Water Resources (Sen. The Hon. Ganga Singh): Mr. President, I beg to move that this Senate continue to sit until the completion of the deliberations on the Public Procurement and Disposal of Public Property Bill, 2014 and one procedural matter of Private Business on the Beauty Services Association of Trinidad and Tobago (Inc’n.) Bill. Question put and agreed to. PUBLIC PROCUREMENT AND DISPOSAL OF PUBLIC PROPERTY BILL, 2014 [Third day] Bill committed to a committee of the whole Senate. Question put and agreed to. 235 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. President: It is now 3.46 p.m., I propose to take the tea break at this point rather than start the committee and break shortly thereafter. I understand that some discussions will take place in my absence. So to allow for that and to allow for the tea break, I propose that we suspend the sitting of the Senate until 5.00 p.m. This Senate shall now stand suspended until 5.00 p.m. 3.47 p.m.: Sitting suspended. 5.00 p.m.: Sitting resumed. Mr. President: Hon. Senators, before we took the break, the Minister had wound up and asked that this Senate go into committee and so we shall. Senate in committee. Mr. Chairman: Can I confirm what you have before you? I have the Bill. I have a track version of the Bill and I have amendments from the Minister, I have one from Sen. Vieira and one from Sen. Drayton. Those are five things that should be before everyone. Minister, are we ready or do you want some more time? Sen. Dr. Tewarie: A few minutes. Mr. Chairman: Sure, I see you have some more advisors. Clauses 1 to 3. Question proposed: That clauses 1 to 3 stand part of the Bill. Sen. Al-Rawi: Mr. Chairman, may I enquire, in relation to clause 2, what is the estimate for proclamation of this Bill? Sen. Dr. Tewarie: It is very difficult to say at this point, but we will try to do it within the most expeditious time possible. Sen. Al-Rawi: May I also enquire then, hon. Minister, through you, Mr. Chairman, what the time frame for production of the regulations, guidelines and handbooks may look like? Sen. Dr. Tewarie: In reading the Bill you will see that the first action would be to establish the office and to ensure that the board is appointed. Once those things are done then what will happen is that the preparation of the regulations can begin. That is why I said it would be in the most expeditious time possible because the idea is to understand the sequence of things that have to be done and those things that can be done simultaneously and to try to facilitate that process. 236 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: Thank you hon. Minister. If I may also enquire, insofar as the Electronic Transactions Act and Data Protection Act form essential cornerstones for this piece of legislation, is there any kind of time frame for the balance of proclamation in the Electronic Transactions Act and Data Protection Act? Sen. Dr. Tewarie: That question is too detailed for me to answer at this point. Sen. Al-Rawi: Okay. Why I am asking, hon. Minister—just to put it on the record—is so that the public that is looking on can have an understanding. By my estimation, this requires several years of work, possibly. If one were to look at the physical requirements and also some of the legislative requirements, the accounting cycles, et cetera. I was just wondering if I was in the zone of at least a couple of years because of the need to amend things like the Exchequer and Audit Act, et cetera. Sen. Dr. Tewarie: For me to answer would be pure speculation. I think you know the Minister is defined in this Bill as the Minister of Finance. So what this means is that on passage in both Houses—I know that the Minister of Finance and the Economy is already in the throes of preparation—they will try to expedite things. We, from the Ministry of Planning and Sustainable Development, have given a commitment to support, to ensure expeditious facilitation of bringing this Bill to the point where, in fact, it can be enforceable. Sen. Young: Thank you very much, Mr. Chairman. Hon. Minister, just touching briefly on what you were sharing with us a short while ago, in the roll- out plan for the legislation, you rightly say that the first step that must be taken is the establishment of the office. As we get into the bill further, what concerns me is the time frame between that happening and the necessary handbooks or regulations coming into place. What is the proposed scheme for procurement during that period of time? What is going to apply? Do we have something in place that we can then immediately put across the board for application by all public bodies as a sort of interim measure to deal with the procurement issues that are obviously going to arise? Sen. Dr. Tewarie: The Minister of Finance and the Economy has already initiated a training programme in relation, in collaboration with a number of international institutions in the third week of this month. The process, as I said, has already begun. I do not think it is reasonable or fair, Mr. Chairman, with all due respect, to be asking me a set of ongoing questions that are speculative in nature, that require precision of time that I am being forced to articulate. 237 Public Procurement Bill, 2014 Tuesday, June 10, 2014

I think you have to assume that it was goodwill that got us to this point; that it was strong commitment to our intention that got us to this point and that given continuing goodwill and commitment to those stated intentions, that we would do our expeditious best to get this Bill to the point where the institution can be established and Bill the proclaimed. Sen. Young: Through you, Mr. Chairman, hon. Minister, do not get me wrong. As I said in my contribution, I support—this is an important piece of legislation. I am just very wary and I am just saying that we must be cautious; that there is not a lacuna. It seems to me that with proper planning one can, before the proclamation, ensure that what you have described the hon. Minister of Finance and the Economy is doing with international bodies, you could have interim procurement plan for application by all public bodies. In other words, a process that can be adopted because the way that the legislation is framed now, until there has been the approval by the office of the handbooks and other procedures, it seems to me that we are going to have a lacuna period where there is nothing applicable. Sen. G. Singh: Mr. Chairman. I think that your recommendation is a recipe for chaos. You are seeking—[Interruption] A recipe for chaos. Sen. Young: It is not recommendation, it is a question. Sen. G. Singh: Okay, but your recommendation, or your question, is a recipe for chaos if you go to transitional provisions of that nature. You are moving from one system into a whole new paradigm. It requires a clean break to take place, therefore, there will be transitioning in terms of the operation and in terms of a practical approach to the problem at hand and you cannot have a halfway house at this stage. Sen. Young: I agree with you completely, hon. Minister, but I am not getting any satisfactory response from your side, who is in control of what is going to happen in that process. Sen. Dr. Tewarie: Yes, but cannot tell us how to do it either. Sen. Young: But I am not doing that. I am asking questions as to what is it you have planned. If this Bill becomes an Act tomorrow, by proclamation, there is nothing in place for the fulfilment of the meat of this Bill. There is nothing in place to govern the day-to-day procurement processes. That is the question I am asking. 238 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: That is not true. The Bill says that on proclamation of this Bill, the Central Tenders Board Act will go out the window, therefore, the Central Tenders Board and all the requirements that are now facilitative of the procurement process will continue. The Government’s commitment is to do this expeditiously. What do you want me to tell you? Next month? Next week? Sen. Al-Rawi: Question, hon. Minister: Is it intended—we are just trying to understand a sense of timing for proclamation. Is it intended that there will be a partial proclamation of certain sections, and if so, when? Also, who is to receive this training that you spoke about a moment ago? Sen. Dr. Tewarie: Mr. Chairman, with all due respect, I think all the questions are irrelevant. Sen. Al-Rawi: Mr. Chairman, the reason why we have asked this is we have had issues nationally relative to partial proclamations, if so what time frames to institutions—so I do not think it is unreasonable to say that. Sen. Dr. Tewarie: There is no known intent, as far as I am aware, to declare parts of the Bill for proclamation. Sen. Al-Rawi: Thank you. Mr. Chairman: I think we can proceed now. Question put and agreed to. Clauses 1 to 3 ordered to stand part of the Bill. Clause 4. Question proposed: That clause 4 stand part of the Bill. Mr. Chairman: There are amendments that have been circulated by the Minister, by Sen. Vieira and Sen. Drayton. Sen. Dr. Tewarie’s amendments: A. In the definition of “bid rigging”, delete the words “with the intention” and substitute the words “for the purpose”. B. Insert after the definition of “document”, the following definition: “electronic means” means the using of electronic equipment for the processing, including digital compression, and storage of data which is transmitted, conveyed and received by wire, radio, optical means or electromagnetic means; 239 Public Procurement Bill, 2014 Tuesday, June 10, 2014

C. In the definition of “local content”, insert after the word “money”, the words “or percentage of each dollar of expenditure”. D. In the definition of “pre-qualification”, delete the words “set out in Regulations”. E. Delete the definition of “pre-qualification documents”. F. In the definition of “pre-selection”, delete the words “set out in Regulations”. G. Delete the definition of “pre-selection documents”. H. In the definition of “procurement contract”, delete the words “at the end of the procurement proceedings”. I. In the definition of “procurement involving classified information”, delete the words “Regulations or by the Freedom of Information Act or other written laws of Trinidad and Tobago” and substitute the words “or under this Act, the Freedom of Information Act or any other written law”. J. In the definition of “public body”, in paragraph (l) delete the word “person” and substitute the words “body corporate”. K. In the definition of “public-private partnership arrangement”- (a) delete the word “means”, and substitute the word “includes”; (b) delete the words “procuring entity”, in both places where they occur and substitute in each place the words “public body”. L. In the definition of “sustainable procurement”, delete the words “whole life” and substitute the words “long term”. M. In the definition of “unfulfilled contract”, delete the word “means” and substitute the word “includes”. N. Insert after the definition of “unfulfilled contract”, the following definition: “value for money” includes the value derived from the optimal balance of benefits and costs on the basis of total cost of ownership; Sen. Vieira’s amendment: In the definition of “bid rigging” delete “in a procurement proceedings” and substitute the following “engaging knowingly in a cartel or facilitating cartel activities with the intention of manipulating procurement proceedings”. 240 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Drayton’s amendments: A. In the definition of the word “local content” insert after the words “means the” the words “local inputs”. B. Delete the proposed definition of the word “Procuring Entity” and substitute the following “a public body including any entity in which the Government or agency of Government whether by holding of shares or by other financial input in the entity is in a position to influence the policy of the company engaged in procurement proceedings; Minister, will you take us—We will take these amendments as read. Sen. Dr. Tewarie: We have had some conversation over this and we have agreed, if other members would agree, on a formulation as follows: “bid rigging” means collusion between persons for the purpose of manipulating procurement proceedings’ Mr. Chairman: Between persons? Sen. Dr. Tewarie: Yes, instead of parties. Mr. Chairman: Yes? Sen. Dr. Tewarie: In procurement, delete (a)— Mr. Chairman: In procurement proceedings. Sen. Dr. Tewarie: Yes. [Interruption] “bid rigging” means collusion between persons for the purpose of manipulating procurement proceedings; 5.15 p.m. Mr. Chairman: Okay, can you proceed with the next definition. Sen. Al-Rawi: If I may, Mr. Chairman, sorry, the next one meaning “Board”. Sen. Ramlogan SC: So amendments are circulated, but further amended. Sen. Al-Rawi: No, no, Mr. Chairman, sorry. Mr. Chairman: I have to hear the amendments first. Sen. Al-Rawi: Yeah, but I would also like us to go through each amendment because— Mr. Chairman: Yeah, well that is what I am doing. 241 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: Thank you, Mr. Chairman. [Crosstalk] Mr. Chairman: So I will ask the Minister to take us to the next. Sen. Dr. Tewarie: The next one, Chair, will be “electronic means”. And that reads; that should read: “ʻelectronic means’ means…” Mr. Chairman: Sorry, I do not have that definition. Sen. Al-Rawi: It is in red, in the circulated adjusted version of— [Interruption] Sen. Al-Rawi: It is a new definition, Mr. Chairman. Mr. Chairman: So it is a new definition? Sen. Al-Rawi: Yeah, which will technically come at the end. [Crosstalk] Mr. Chairman: It will come at the end. It is not a new clause. Sen. Al-Rawi: I do not know how you treat it. Mr. Chairman: It will come at the end. Sen. Dr. Tewarie: “ʻElectronic means’ means the using…” Mr. Chairman: Exactly as how you have it here, or you have amendments to be made? Sen. Dr. Tewarie: No, no, that is it. “…the using of electronic equipment for the processing, including digital compression, and storage of data which is transmitted, conveyed and received by wire, radio, optical means or electromagnetic means;”. Sen. Al-Rawi: May I ask where this comes from? Sen. Dr. Tewarie: He says from the UK Procurement Law. Sen. Al-Rawi: Because it is rather technologically specific in my view, and I am fearful that we may box ourselves in as we progress technologically. Sen. Dr. Balgobin: Minister, may I just suggest that, “by any means” or some such thing. I think the technology moves so quickly somebody comes up with something else and—[Interruption] Sen. Ramlogan SC: So we are saying, “the using of electronic equipment by any means”? Is that what you want to put? 242 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: No, you can put in a caveat at the end or “by any other means”. Sen. Dr. Balgobin: Or “by any other means”. Sen. Dr. Tewarie: Or “by any other means”. I would be happy with that. Sen. Ramlogan SC: Yeah, that is fine. Mr. Chairman: Put a comma after “optical means”. Take out the “or”. After “electromagnetic means” we would say, “or any other means”. Correct? Sen. Dr. Tewarie: Yes. Mr. Chairman: Thank you. Sen. Al-Rawi: But you delete the “means” there after “optical”. Sen. Prescott SC: Chair, may I just ask one of my usual language questions? Mr. Chairman: So you want to take out the two “means”? Sen. Al-Rawi: No, just the first one. Mr. Chairman: Not “optical means”. Sen. Al-Rawi: “By wire, radio, optical,” strike “means”, strike “or”— Mr. Chairman: Yeah, that is what I am saying. Sen. Al-Rawi: Oh, I see, I did not hear the first one. I am sorry, Mr. Chairman. Mr. Chairman: So after “electromagnetic” comes directly “or any other means”. Sen. Al-Rawi: The question is, do you need to put “means” or—read it back again when you have it clear. Mr. Chairman: Well, I have, “by wire, radio, optical, electromagnetic or any other means”. Sen. Al-Rawi: Okay, thank you. Mr. Chairman: You had a question, Sen. Prescott. Sen. Prescott SC: Actually, it is an observation. I wonder if the Minister would agree that data is a plural word. Sen. Dr. Mahabir: Yes, data is definitely plural, Mr. Chair. 243 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: We can fix that. Mr. Chairman: Are transmitted? [Crosstalk] Oh, I see, “storage” is the subject. Sen. Dr. Tewarie: You see, the subject there is “storage” and not “data”. Sen. Prescott SC: Really? Storage is transmitted? Sen. Dr. Tewarie: Well you can say data are, but in that—[Interruption] Sen. Prescott SC: Are you going to transmit storage? Sen. Dr. Tewarie: But when you have storage of data the subject is storage. Sen. Al-Rawi: May I ask if your team has looked at the Copyright Act definition of the transmission, the existence of information. You see, electronic means, I assume, comes up later on, when we are talking about procurement processes in the Bill. Sen. Dr. Tewarie: Yes. Sen. Al-Rawi: So, “ʻelectronic means’ means the using of electronic equipment for the processing, including digital compression, and storage of data which is transmitted, conveyed and received by wire…” The state of existence of the data is left out. So you may have data which is in existence, not transmitted per se, not conveyed. So I am not too happy with this definition. I have seen better definitions for instance in the Electronic Transactions Act and the Copyright Act. Sen. Ramlogan SC: Well, for the purpose of this, I think once we add the caveat that Dr. Balgobin suggested, “by any other means”, I mean, I think we captured it for now. I think that solves the problem, you know. We should be all right with that. Mr. Chairman: Next definition. Sen. Dr. Tewarie: “ʻLocal content’ means the local value added…”— [Interruption] Mr. Chairman: So that is a new definition? No, it is an amendment. As circulated is what you want? Sen. Al-Rawi: Please read it. Sen. Ramlogan SC: As circulated. 244 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: You are not making further changes in other words? Sen. Dr. Tewarie: No additional changes. Mr. Chairman: Sen. Drayton. Sen. Drayton: If I may, I had an amendment with—but with the new definition here, once the regulations would specify the formula for determining local value added or the percentage of each dollar of expenditure, then I could accept this definition. Mr. Chairman: So you consider the amendment acceptable, to treat with both your concerns? Sen. Drayton: Yes. Mr. Chairman: Sen. Balgobin. Sen. Dr. Balgobin: I think, Chairman, she was seeking the assurance of the Minister that it would be defined in the regulations. Sen. Dr. Tewarie: I gave an earlier assurance of inclusion in the regulations. I assume— Sen. Al-Rawi: Sorry, what was that assurance? Sen. Drayton: But I think it is necessary for the purposes of recording. Sen. Al-Rawi: Sorry. I just want to—Mr. Chairman, first of all, may I compliment the Minister for producing a track change document to reflect the proposed amendments that he wishes to table. May I at the same time however, please request, that for the sake of clarity that we put everything on the record. So if there were—I am not privy to the assurances that were given, may I understand what they are? Sen. Dr. Tewarie: The assurance was simple, which is that things such as local content, local industry, et cetera, will be defined in the regulations. Sen. Al-Rawi: I had a question in relation to local content of fixing the value to money or, as amended, percentage of each dollar expenditure remaining after the procurement process. Some things are not quantifiable in terms of money per se or a percentage of dollar, and I wondered if it was, perhaps something worth considering that we look to some kind of softening of the prescription for the use of only money. For instance, there may be a value or benefit which is unquantifiable. Sen. Dr. Tewarie: Well, remember you cannot look at the one clause and try to put everything in the clause. There is a clause about “value for money”. 245 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: And then there is sustainable development and there are other points. Sen. Dr. Tewarie: So you have got to take it in a cumulative way. Sen. Al-Rawi: It is having looked at those other sections, hon. Minister, that I propose the consideration now. I was wondering if money per se was not too restrictive. Sen. Dr. Tewarie: No, I think it is important to identify the local content in terms of money, because whatever you spend, a percentage of the dollar is important. And that is separate and distinct from value. You can buy something for a dollar, and it has value in excess of a billion dollars or in excess of anything that you can mention that relates to that dollar. But the local content issue is really about what elements are contained in terms of the expenditure that is really from the local community. Sen. Al-Rawi: I was looking at the tie-in of the transfer to technology and training. And that was my concern in terms of it. Because I may introduce local content into a circumstance for the purpose of a transfer of technology or training, as opposed to, for money, and I may satisfy a local content requirement that way. Sen. Dr. Tewarie: But would that not be kind? Sen. Vieira: Under “local industry development” I think it is taken care of. Sen. Dr. Balgobin: The standard methodology for the measurement of local content is to arrive at a quantifiable monetary figure. Sen. Dr. Tewarie: Exactly, yeah, whether it is forty-five cents to a dollar or fifty-five. Sen. Dr. Balgobin: So it is really how do we deduce all of those things. Mr. Chairman: I think it is the context in which those phrases are used within the substantive part of the legislation. Sen. Dr. Tewarie: Yes. Mr. Chairman: Your next amendment. Sen. Dr. Small: Mr. President, sorry. Mr. Chairman: Can I take Sen. Smart first and— Hon. Senator: Small. 246 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Small, sorry. Sen. Dr. Small: It is all right, Smart is good. [Laughter] I have no problem with that amendment, Mr. Chairman. I just had a—under the definition of “local industry development”, I would like to suggest that it reads mostly as it is, but you say: It serves to enhance local industry capacity and competitiveness—by all the other things that are there. I think the issue for me is about, you are increasing capacity, but competitiveness is important. You can increase local industry capacity and may not be competitive. Sen. Ramlogan SC: That is acceptable. Sen. Al-Rawi: Mr. Chairman, may I just ask by way of procedure, I understood that we were going to go through the proposed amendments by the Minister and perhaps the others in series. Mr. Chairman: No, I wanted to do—if you have concerns—[Interruption] Sen. Al-Rawi: There are many other concerns that we have that we have been holding back on whilst we go through those in the definition section. So I just wanted to get some process. Mr. Chairman: I did not realize that you were holding back. Sen. Al-Rawi: Yes. [Laughter] Mr. Chairman: We will take it in sequence. I do not want to go over again. So let us start from where we are and go forward. Sen. Al-Rawi: Sure. Sen. Dr. Tewarie: Chair, could we accept the amendment from Sen. Small? Mr. Chairman: Yes, I have heard it and I have put it in. Sen. Dr. Small: Thank you very much, Minister, I appreciate that. Mr. Chairman: So we are going to go to all the amendments. Sen. Al-Rawi: Could I hear that amendment from Sen. Small? Sen. Dr. Tewarie: It is just, “local capacity” and “competitiveness”. Sen. Al-Rawi: May I invite you while you are looking at that particular one, just not to come back to it, to look at the word “is” at the end of the sentence— end of the definition, and also “programme of works”, what about services? 247 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: Where is that? Sen. Al-Rawi: So “ʻlocal industry development’ includes those activities that serve to enhance local capacity by involvement and participation of local persons…” So I assume they include individuals. “...firms and capital markets and knowledge transfer during the conduct of the programme of works…” I just wondered about the expansive understanding of the word “works” there “…that is being procured”. It would have to be, “that are being procured”. But are services included in “works”? What is the definition of “works” here? Hon. Senator: Programme. Sen. Dr. Tewarie: It depends on what the project involves. Sen. Prescott SC: It is a works definition. Sen. Al-Rawi: It is a works definition, let us see. Mr. Macintyre SC: Yeah, but it does not include services. Sen. Al-Rawi: I see services, but services are not included there, Sen. Vieira. On page 7 of the Bill there is no definition for “works”. Hon. Senator: Yes, there is. Sen. Al-Rawi: Public procurement, regulations, services. Sen. Maharaj: Right above clause 5, the last one, on page 7. Mr. Chairman: The last definition. Sen. Al-Rawi: “Oh, I see, on page 9 of the Bill. Sen. Ramlogan SC: It is in alphabetical order. Sen. Al-Rawi: The Bill that I have—[Crosstalk] Sen. G. Singh: You are working with something that we are not working with. We are working with the track change Bill. Sen. Al-Rawi: But just to tell you, the track change Bill was tabled today just before the start of the sitting. 248 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. G. Singh: Yeah, but it is the same—[Interruption] Sen. Al-Rawi: I am just pointing out to you. Sen. G. Singh: And it is in red. Sen. Al-Rawi: I am just telling you that I am not working with the track change version, that is for ease of understanding. Mr. Chairman: All right, just to indicate, we are working with the Bill. The track change is an aid to our assistance. Sen. Al-Rawi: Exactly. Mr. Chairman: What we have to do is to ensure that we have a good Bill at the end of the day. So, we go back to “local industry development”. Have we got consensus on that? Sen. Dr. Tewarie: Chair, the—I would have no problem with “and services”. Mr. Chairman: “Works and services”. And therefore. “that are being procured”. Sen. Al-Rawi: May I also enquire—[Interruption] Hon. Senator: Works “or” services. Sen. Dr. Tewarie: No, not “or”. Sen. Al-Rawi: So that it does not have to be both, “or” would be disjunctively correct to use. So it would be “or”—“works or services that are”. Hon. Senator: It could be either one. Sen. Al-Rawi: The “or” works as “and/or”. May I also enquire in relation to the definition of “works” on page 9 of the Bill, hon. Minister, in the planning Bill we came up—forgive me, it was useful work that we did in the committee as to the definition of what “works” was there. I thought that was by far a better definition of works than appears in this Bill. The CPC is a member of that bit of work as well. Sen. Dr. Tewarie: What clause are you referring to? Mr. Chairman: “Works”. Sen. Al-Rawi: The definition of “works” on page 9 of the Bill. [Crosstalk] 5.30 p.m. So for instance, “works” in the context of planning that we have considered it as, includes demolition, destruction, et cetera. It is a much more expansive definition. In this version of this Bill, “‘works’ means buildings and engineering works of all kinds”. I was wondering whether you wanted to be more expansive of the kind that we did in the planning Bill. 249 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Hon. Senators: No. Sen. Dr. Tewarie: “Nah”. Sen. Young: But as you are on that definition, I am suggesting rather than “means buildings”, should we not say “means construction”? Sen. Al-Rawi: You see, that is the point. The point is that it is not as expansive in the definition to bite into applicability, than we have used elsewhere. So, whether this includes demolition, and therefore, constitutes disposal of property as opposed to procurement of property becomes a live issue. So I was wondering why? I heard a chorus of, no, opposite. Why is the less expansive version preferred over the more expansive version? Hon. Senator: Engineer encompasses all of that. Sen. Al-Rawi: It does not. Hon. Senator: Engineer encompasses all of that. Sen. Al-Rawi: You see, we have taken an exact opposite approach in the planning laws, so why? Sen. Dr. Tewarie: Well, I do not want to write an essay as a definition of “works”. So is it—[Interruption] Sen. Al-Rawi: I am going to re-quote you on that later, hon. Minister. Sen. Dr. Tewarie: Is it possible to delete “buildings and” and just say that “‘works’ means” or “‘works’ includes engineering works of all kinds”?

Sen. Ramlogan SC: Yes, that will be fine. Sen. Al-Rawi: I do not think that is sufficiently clear—[Interruption] Sen. Dr. Tewarie: Construction and engineering works? Sen. Al-Rawi: Yeah. Sen. Dr. Tewarie: I have no problem. Mr. Chairman: Do you want to include the—[Interruption] Sen. Al-Rawi: You see hon. Minister what I am driving at, the mischief that is in my mind to avoid is having somebody say, “Well, that definition does not apply to what I am doing”. So it helps me to have a definition which tells any procuring entity which is a public body, “Listen, you are demolishing, you are 250 Public Procurement Bill, 2014 Tuesday, June 10, 2014 engineering, you are building, all of that is works”. Because that is the traditional approach in the Town and Country Planning Act and in the amendments that you proposed in the planning legislation. Mr. Chairman: Minister, are you proposing “includes” rather than “means”? Sen. Dr. Tewarie: Yes, I think that will be better. Sen. Al-Rawi: Because it is tied in to the definition of “works”— [Interruption] Mr. Chairman: So we were at, before we moved ahead—[Interruption] Sen. Al-Rawi: Local industry. Mr. Chairman:—“local industry development”. Is there anything in-between that, Minister, that you would like to—? Sen. Dr. Tewarie: No, I have only—[Interruption] Sen. Young: Mr. Chairman, might I enquire, are we coming back to the definition of “works” sequentially, or you have moved away from “works” now? Mr. Chairman: No, we leapfrogged to “works”. Sen. Al-Rawi: Because of the inclusion in local industry. Mr. Chairman: We are back where we are, and I am asking the Minister if there are any other amendments after “local industry development”. Sen. Young: Which I understood, Mr. Chairman. I am just enquiring with respect to what was the final on “works”. Mr. Chairman: All right, I will tell you. It says “includes construction and engineering works of all kinds”. Sen. Young: Thank you. Sen. Al-Rawi: I am not satisfied with that, Mr. Chairman, but we will come back to it? Mr. Chairman: Yes. Sen. Al-Rawi: Sure. Sen. Vieira: I am just pointing out that the definition here is the exact definition that was just plucked out from the Central Tenders Board definition. Sen. Al-Rawi: I understand. I am aware of that. I am looking at the fact that we have ameliorated that definition in our planning laws which I think was a very good definition to use. 251 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: On the other hand when I looked at the marked track version I see a number of deletions, so can we go to those things now? Sen. Dr. Tewarie: Yes, we can delete those, Chair. Sen. Ramlogan SC: Can we just say “as circulated”, Chair? Mr. Chairman: The definitions of “pre-qualification”, “pre-qualification documents”, “pre-selection”, “pre-selection documents”, “procurement contract” and “procurement involving classified information” are amended by certain deletions—[Interruption] Sen. Al-Rawi: No. May we ask why, Mr. Chairman, first of all? Let us get a rationale on the record. Mr. Chairman: Is your “why” related to a specific definition? Sen. Al-Rawi: Well you called out four of them together. Mr. Chairman: I know. Can you relate it to a specific—[Interruption] Sen. Al-Rawi: Sure. Why in relation to all four? Sen. Dr. Tewarie: Because they make reference to regulations. Sen. Al-Rawi: So this arose out of the contribution that we presented in the Parliament? I actually made this observation, so I was just wondering if that is the reason. Sen. Dr. Tewarie: If you want to take the credit, fine, but I did say that I took into account all the contributions. Sen. Al-Rawi: Hon. Minister, I have to ask because you said the contribution was terrible and you took on board none of it. Sen. Dr. Tewarie: No, I said that—I do not want to start a debate here. What I did say is that you were usually very good and focused in your debate, but this time something else happened. Sen. Al-Rawi: Good. So in view of that, I am just asking why, because I want to put a policy on the record in relation to the amendments. Sen. Dr. Tewarie: No, it has to do with the fact that the regulations do not come with the Bill. Okay? Sen. Young: Mr. Chairman, may I? Hon. Minister, I just have the question in relation to one of your deletions which is under the “pre-selection” definition and: 252 Public Procurement Bill, 2014 Tuesday, June 10, 2014

“‘pre-selection’ means the procedure”—and before you had—“set out in regulations to identify, prior to solicitation, limited number of…”—et cetera. I would like to respectfully suggest that for that one you leave in the “set out in regulations” because it seems to me that if we delete it, we are taking out the ability via regulations to set the parameters that you may want for a pre-selection process. Sen. Dr. Tewarie: Except that the Bill provides for the procurement regulator to provide not just regulations through the Minister of Finance and the Economy, but also guidelines directly. Sen. Young: So you will address it there. Sen. Al-Rawi: Mr. Chairman there was a very interesting mechanism that we used to cross this hurdle in the Securities and Insurance Bills in the joint select where we used in the approved format. Right? It gives for the clarity that it must be something which is approved by the regulator and it does not leave, therefore, the mischief to crawl in that it can be in any form. So, CPC is aware of that because we drafted it in other laws. Is that perhaps a better mechanism than just striking regulation? Hon. Minister of Finance and the Economy, are you familiar with what I am saying? Sen. Howai: Yes. Sen. Dr. Tewarie: The formulation that you suggest is what? Sen. Howai: In the approved form—[Interruption] Sen. Al-Rawi: In the approved form or in the approved format. There is a form of wording that we have used to capture that so that you strike the fact that it must be approved by the regulator. Sen. Dr. Tewarie: No. The CPC is guiding that we should leave it as is. Sen. Al-Rawi: Why? Sen. Dr. Tewarie: It gives the procurement regulator the opportunity to use either. Sen. Al-Rawi: What does that mean? What do you mean “use either”? Sen. Dr. Tewarie: He might use guidelines or he may use regulations—or she. 253 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: In an approved form—my mischief that I am driving at, hon. Minister, is the fact that the procuring agency, the procuring entity, cannot come up with its own set of positions. That we are making it abundantly clear that the procedure for the procurement must be approved and that there is no vagueness in the issue. So what I am saying is, in the approved form means that there could be guidelines, regulations, handbook, or whatever, but it sends the alert to the users of this legislation that the procurement regulator needs to have oversight and consent over these aspects. Sen. Dr. Tewarie: Well there is reportage in every procurement activity, you know. Mr. Chairman: I take it what Sen. Al-Rawi is talking about is as he said, but presumably we need another definition said “in approved form” means such form as approved by the regulator from time to time, and we put in here “in approved form”. I am just trying to work it out in a mechanism, but—[Interruption] Sen. Al-Rawi: I am trying to get certainty and consistency in the approach for the users. Mr. Chairman:—I am not recommending. I am just saying that that is what I understand is the position. Sen. Ramlogan SC: Chair, we are comfortable with that because it really has to be in the guidelines of the regulator. Sen. Drayton: May I ask a question here? Do guidelines per se have the force of law? Sen. Al-Rawi: Under this Bill they have the force of $2 million in fines, and therefore, have some force of law. So the answer is, yes, but the question inside of here for me, just getting back to this particular point, is that I am honestly not satisfied because it leaves room. There has been active litigation in relation to the CTP board in particular with state entities saying, “Having to go to court, having to be told whether they are in compliance with prescribed forms or procedures or not”. And what I am asking in relation to this very important piece of law is that we have some clarity that the procurement regulator has the oversight and approval for the types of forms and procedures so that we can standardize it, particularly because this is a hybrid model. Sen. Dr. Tewarie: I do not think—the reason we want the flexibility is because you cannot have central regulations for everything. Okay? 254 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: But we do have regulations for everything. This law contemplates that. Sen. Dr. Tewarie: What is that? Sen. Al-Rawi: This law contemplates that in both centralized and decentralized hybrid type that we have, that we will have a regulation for every single thing whether by way of regulation, handbook, guideline, or prescription. Sen. Dr. Tewarie: Yes, but they are different. Regulations are one thing. They have to come to Parliament. Sen. Al-Rawi: The only regulations that come to Parliament under this Act are in section 32, which prescribes one set of the regulations that are subject to negative resolution. The rest of them is debatable. Sen. Dr. Tewarie: That is not true. All the regulations come to Parliament. The guidelines may not come to Parliament. They can be issued by the procurement regulator, by virtue of his or her office. Mr. Chairman: Minister, your next—[Interruption] Sen. Al-Rawi: So the approved format is rejected? Sen. Dr. Tewarie: Yes, it is not necessary. It is an addition. Sen. Drayton: Could I just seek clarification of one definition here, and that is: “‘procurement’ or ‘public procurement’ means the acquisition of goods, works or services involving the use of public money”. Why not just “using public money”. What do you mean by “involving” here? Is this to suggest that there could be something more? Sen. Dr. Tewarie: Which one is this? Sen. Drayton: This is “procurement”. The definition of “procurement” or “public procurement”. Mr. Chairman: The last words, “involving the use of…money”. Sen. Drayton: Why involving? Why not just “using public money” given the definition later on of “public money”? Sen. Ramlogan SC: Because it might not only be public money. It might be involving public money, but not limited to the use of the public money solely. 255 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Drayton: Okay. So give an example. Sen. Ramlogan SC: Well, you could have public-private partnership. Sen. Drayton: Well then this will be significant in the context of later on when we define the term “public body”. Mr. Chairman: Yes, I think so. Sen. Al-Rawi: Well, if I could start up at the top. So bid rigging we have added in the procurement proceedings at the end. Under classified information— [Interruption] Mr. Chairman: Sorry, sorry. Let me indicate the process that I wish to undertake because we have started along that line already. The Minister is putting forward his position on various amendments. I am seeking to ensure, in relation to those amendments, that if we can, we get consensus. If we do not get consensus we will put it to the vote when the time comes. In relation to amendments being put forward by anyone other than the Minister, we would take that in sequence after I have completed the—[Interruption] Sen. Al-Rawi: Okay. Sure. I was just confused insofar as Sen. Drayton had gone to public positions. Mr. Chairman: No, that is the consensus I am trying to get relative to the Minister’s—[Interruption] Sen. Al-Rawi: I will be guided by you, Mr. Chairman. Mr. Chairman: Okay. Very good. Sen. Al-Rawi: We have all night tonight. Mr. Chairman: So, could you come to the next amendment that you—I see at (l), “public body”, you have changed “person” to body corporate” Sen. Dr. Tewarie: Yes, Sir. Mr. Chairman: “Public-private partnership arrangement”. Sen. Al-Rawi: Mr. Chairman, I am not following. Where are we? We are on the proposed amendment in—[Interruption] Hon. Senator: Use the track changes to guide you. Sen. Al-Rawi: Right. So you have just looked at “public body” per se, right? Mr. Macintyre SC: Yes. 256 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: And you are only looking at the Minister’s recommendation of—I will wait for Mr. Chairman. Sen. Drayton: We have reached “public body”? Sen. Al-Rawi: Yes. Mr. Chairman, is it that you have just looked at “public body” and that you are only considering the proposed amendment striking the word “person” at (l) to “body corporate” instead? Mr. Chairman: Well, that is as I see the amendment before me. Sen. Al-Rawi: Okay. And any other commentary we have we take at the end of each successive person’s proposal. Mr. Chairman: Let us go back. What I am trying to do, the Minister has some amendments before us. When these amendments come before us, to that extent I am seeking to get consensus on them. If there is no consensus, we will put them to the vote at the appropriate time. 5.45 p.m. Sen. Al-Rawi: So would it be correct to say, whenever we come to an item that anyone of us have other concerns in relation to, it would be a good time to deal with that particular item itself? Mr. Chairman: Exactly. Sen. Al-Rawi: Thank you. Mr. Chairman: And that is what I thought we were doing right through this process. Sen. Drayton: So—sorry, Chairman. That being the case, I had an amendment with respect to procuring entity so I did not realize that we had reached “public—[Interruption] Sen. Al-Rawi: No, we are not at that at all. Sen. Drayton: We are not at that? Where are we? Are we still on procurement involvement? Sen. Al-Rawi: We are taking only the Minister’s amendments first. Mr. Chairman: We are taking the Minister’s amendments. Sen. Drayton: All right. Sen. Al-Rawi: Mr. Chairman, in relation to “public body”, I have a few observations. 257 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: I am just checking on something with my Clerk. Sen. Dr. Tewarie: Chair, are we at “public-private partnership” agreement? Sen. Al-Rawi: Mr. Chairman is at “public body”. Mr. Chairman: My Clerk is telling me that we have not dealt with “procurement involving classified information”. Sen. Dr. Tewarie: Yes, that is correct. Mr. Chairman: So that is circulated and has amendments. Sen. Dr. Tewarie: Yes, and we are making no changes to amendments. Mr. Chairman: Do we have any comments on that definition? Sen. Al-Rawi: Yes, Mr. Chairman. Under “procurement involving classified information”, so we are striking, if I understand it, “Regulations”, and it now reads: “‘…involving classified information’ means procurement in which a procuring entity may be authorized by”—or under this Act—“the Freedom of Information Act or”—any—“other written laws…” May I enquire—because I did not see it myself, I looked at the Freedom of Information Act—where the Freedom of Information Act speaks to “classified information”? Is it in the exception provision under section 34? Hon. Member: What section is that? Sen. Al-Rawi: Definition of “procurement involving classified information”. Sen. Dr. Tewarie: It basically deals here with classified information. Sen. Al-Rawi: No, I am just asking, in the Freedom of Information Act, is the exemption grounded in section 33 because we are making collateral reference by way of incorporation to the Freedom of Information Act? So I am asking whether that is what we have used. Sen. Dr. Tewarie: The CPC says he will check the Act, he does not have the information. Mr. Chairman: Sen. Balgobin. Sen. Dr. Balgobin: Yes, while he is checking the Act, perhaps, Minister, you may be able to have him also clarify for me, when we talk about the definition of “classified information” as put in the Bill, and it refers to “…the Freedom of 258 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Information Act and other such information as prescribed by Regulations;”, does that mean that the procurement regulator, or some such person, can define that some information is classified that is not, perhaps, covered under the FoIA? Sen. Dr. Tewarie: No, I think the whole point is to make classified information have a common legal basis. Sen. Al-Rawi: So the intention was to have classified information equal to exempt information under the Freedom of Information Act? Sen. Ramlogan SC: Yeah. I think it is clear that it is based on the Freedom of Information Act simpliciter. Sen. Dr. Balgobin: But if you look at the definition, Minister, that is what I am referring to. Sen. Ramlogan SC: What is the question? Sen. Dr. Balgobin: If you look at the definition, I am just trying to understand the part—everything after Freedom of Information Act in the definitions. Sen. Ramlogan SC: Well, I think the intention here is to capture any law that expressly prohibits or forbids the disclosure of protected information. The Freedom of Information Act is the main one but to the extent, it says: “…the Freedom of Information Act or”—any—“other written law…” Sen. Dr. Balgobin: No, it does not say that. It says: any “…other information as prescribed by Regulations;”. That is why I am asking. Sen. Ramlogan SC: Yeah, sure. Sen. Dr. Balgobin: Because the regulations are developed by the procurement regulator. Sen. Ramlogan SC: Yes. Mr. Chairman: “Regulations” have been omitted. Sen. Al-Rawi: AG, I understand where we are going to. We are trying to make sure that we harmonize the Freedom of Information Act provisions. But what about things like—you see, because the definition does not include “or any other written laws”, what about things like sensitive information under the Data Protection Act, et cetera? Sen. Ramlogan SC: But would not that be covered by “any other written laws”? You see, it would be covered by that. 259 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: One of the questions, I mean if you relate it back to the definition of “classified information” which is incorporated in this definition, that is being restricted only to the Freedom of Information Act, not other laws. Sen. Al-Rawi: Correct. Mr. Chairman: And I am wondering—[Interruption] Sen. Dr. Balgobin: That is what I am asking about. Sen. Al-Rawi: No, but that is what we are asking. Sen. Ramlogan SC: Well, it says: “…or such other information prescribed by the Regulations;” I see your point, Mr. Chairman, but to the extent that the regulations could capture anything else. Sen. Al-Rawi: Yes, but we have got to be consistent so you may need to look at the “classified information”. So, Mr. Chairman, the thing is that these are some of the other observations that we had that have not been treated. Mr. Chairman: Yes, and we will come back to it. Sen. Ramlogan SC: What we can do, Chairman—I would like to resolve this now because we have spent a lot of time discussing it—I think what we can do in the interest of harmonizing both provisions is in “classified information”, we can simply insert what we have in procurement which is “or any other written law” and that would be fine. Hon. Member: No, but “classified information” is defined in the definitions. Sen. Young: So we will remove the—[Inaudible] Sen. Ramlogan SC: So we will harmonize the definitions so “classified information” will mean information that is exempted from disclosure under the Freedom of Information Act or any other written law. Mr. Chairman: So it is “exempted from disclosure”? Those words are not there. Sen. Ramlogan SC: Full stop, yes, and delete the rest. Sen. Young: “…and such other information as prescribed” is deleted. Sen. Ramlogan SC: Yeah, that is right. Sen. Al-Rawi: Well, did you want to include the concept of “by this Act” as you did in the other definition? 260 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: That will be under “written law”. Sen. Al-Rawi: But that is an “other written law”. So you have used it in the definition following where you struck “Regulations” in “procurement involving classified information” and you put “under or by this Act”. Correct. Sen. Dr. Tewarie: “or any other written law”. Sen. Al-Rawi: So you would have to include it in “classified information”. Sen. Ramlogan SC: We should be consistent there. Sen. Dr. Tewarie: Okay. Mr. Chairman: Can I read back what I understand the position is? Sen. Dr. Tewarie: Yes. Mr. Chairman: “Classified information” definition “means information that is exempted from disclosure under this Act, the Freedom of Information Act or any other written law;” Sen. Dr. Tewarie: That is correct, Chairman. Mr. Chairman: All right and therefore “procurement involving classified information” remains as it is. We go on next. Sen. Al-Rawi: Mr. Chairman, far be it from me to derail your procedure, but may I humbly suggest that it would be by far better use of time for us to go through each of these clauses, anybody’s amendment that pops up at that point, we would be finished with the whole thing instead of jumping around. I mean we will go ahead but it is artificial. [Crosstalk] You see, Ganga, had we done it that way—I mean, I held back on my observation on “classified information” for that reason. Sen. G. Singh: Because, you see, if you had circulated amendments, then you could deal with that. Mr. Chairman: What I would say to this Senate, when I look at the amendments in the track changes, we have one, two, three, four, six, maybe seven at the very most again to finish with the Minister. So to now go back to the beginning, to my mind, will be less efficient. Sen. Al-Rawi: I am in your hands, Mr. Chairman. Mr. Chairman: Having reached where we are, I will prefer to continue. 261 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Drayton: Sorry, Chairman. Where I am confused is that if we are going through all the Minister’s, then where there are amendments circulated, like for instance, we just discussed “procurement involving classified information” but I have an amendment with respect to suggest another procuring entity. Mr. Chairman: Sure. So what I said is whilst going through the Minister’s changes, I would listen to hear in relation to those definitions that came up, any comments, suggestions, that you wanted to bring. Sen. Drayton: Okay. Mr. Chairman: All right? That way we would have got past that definition, and we will know whether we need to come back to it or that it is accepted and then—so you have an opportunity, that is why we opened the floor to take suggestions in relation to the amendments proposed by the Minister, and we only have seven more and some of them very minor. And therefore to start back over at A when we reach P, you know, does not seem—but yes, we want to hear you in relation to those amendments. So, the next amendment, for that matter I have, is (l) under “public body” and that changes from “person” to “body corporate”. Comments? Sen. Drayton: Yes, I support that amendment 100 per cent. But I want to look at “public body” in the context of the definition of procuring entity. Is that okay? So “‘procuring entity’ means a public body engaged in public proceedings;” and then the “public body”, there is a list of public bodies, and I know under (i), it includes a state-controlled enterprise. Sen. Al-Rawi: Mr. Chairman, sorry to interrupt by learned colleague, but some of us also have comments in relation to (l) itself. Have we moved on beyond (l)? Mr. Chairman: No, no, we are still on (l). Sen. Drayton: I am now doing (l). Sen. Al-Rawi: I am sorry, I thought my colleague had moved ahead after— Sen. Drayton: Okay, no. So the question I want to raise, is the definition of “procuring entity” in the context of the “public body” sufficiently adequate? My amendment had suggested that a public body including any entity in which the Government or agency of Government, whether by holding of shares or by financial input in the entity, is in a position to influence the policy of the company engaged in public procurement proceedings. 262 Public Procurement Bill, 2014 Tuesday, June 10, 2014

The reason why I suggested that had a lot to do with developments with respect to NEL. Now, NEL is an investment holding company of the Government. It is operating on behalf of the Government. The Government holds 51 per cent of the shares of TSTT and TSTT is owned by NEL. NEL also owns 20 per cent of the shares of NGC NGL Company Limited. So that I know this is framework legislation, and we cannot cater for every single thing, but we already have a development in an institution where you can put other companies. You can put Petrotrin under NEL; you can put NGC under NEL. 6.00 p.m. My question is the 51 per cent that is owned by the Government, which is public money and, therefore, when you are dealing with procurement and the disposal of public property, are these bodies included under a state-controlled enterprise? Because TSTT is in NEL, and NEL owns 51 per cent, and the Government owns 51 per cent of NEL. Mr. Chairman: I hear you. Sen. Drayton: Okay. So I am seeking clarification as to whether it is adequate, given developments, to list all these bodies, or I would much prefer if we would say “public body includes”, because of developments. If we are talking about the use of public money, then wherever public money is used, it should be captured under this procurement law. So I am just throwing that out for clarification. Mr. Chairman: I will ask the Minister to respond to that. Sen. Dr. Tewarie: It is. The AG will respond on this issue. Sen. Ramlogan SC: Chair, I think in this matter we set out an extensive list of public bodies, and at (l) it states: “a body corporate or unincorporated entity – in relation to any function projects, scheme or arrangement which involves the use by him or it, of public money;” And that really is the omnibus provision that will capture any situation by any entity that uses public money. There has been a lot of litigations on these definitions before, arising out of the Integrity in Public Life Act, and we wanted to try to avoid that, which is why we have put out an exhaustive list like this. I think (l) in particular, should allay the fears of the Senator. Sen. Drayton: So you were saying that these entities such as TSTT and NEL will be captured by this, given the definition of “procurement” which involves the use of public money— 263 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: Especially in light of the use of the word “controlled” earlier up in the definition, state-controlled enterprise. Sen. Dr. Tewarie: Chair, I would like to refer Sen. Drayton to page 6 of the Bill, in which— Mr. Chairman: Is that the Bill proper? Sen. G. Singh: The track change. Mr. Chairman: On the track change? Sen. Dr. Tewarie: This track change Bill— Sen. Drayton: Page 6 of the Bill or the track change? Hon. Senator: Track change. Sen. Dr. Tewarie: This track change version, where you have state- controlled enterprise defined. Sen. Al-Rawi: You see, Mr. Chairman, hon. Minister— Sen. Drayton: You see, there is a difference between, just let me— Sen. Al-Rawi:—(i) has the definition of—(i) introduces on page 5 of the Bill itself, (i) introduces state-controlled enterprise. You have a definition for a state- controlled enterprise, which goes further, but on the narrow functions of (l), just to ask you, is the exclusion of a person here in acknowledgement of the fact that it would catch too wide a category of persons? Sen. Dr. Tewarie: Yes, that was the thinking. Sen. Al-Rawi: Right. So the people funded by the Green Fund and all of those people, right? Okay, good. In light of that amendment then, would you still want to use the word by “him” or “it” of the public money? Because a body corporate or an unincorporated entity, I do not suppose could be “him”. Sen. Dr. Tewarie: We can delete it. Sen. Al-Rawi: Okay, just to tidy that up. Mr. Chairman: So by him? Sen. Dr. Tewarie: By him or it. Mr. Chairman: By it rather. It will be “it”. Sen. Dr. Tewarie: “…by it of public money;”. 264 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: Just to return to Sen. Drayton’s point. Senator, state- controlled enterprise, if you look at the definitions there, it refers to owned or controlled and in (c) in particular, state-controlled enterprise. “‘State-controlled enterprise’ means – (c) a body corporate or unincorporated entity which is supported, directly or indirectly, by public money and over which the State, a statutory body or a company referred to in paragraph (a)”—which would mean NEL—“or (b) is in a position to exercise control directly or indirectly;” So NEL and TSTT, they will be covered. Sen. Drayton: So NEL and TSTT will be covered? Sen. Ramlogan SC: They will be yes, yes. Sen. Drayton: Okay. So the public-private partnership? Sen. Ramlogan SC: They will be covered. Sen. Drayton: They would also be covered? Sen. Ramlogan SC: Yes. Sen. Al-Rawi: And insofar as the AG has taken us to state-controlled enterprise, if I may point out that what we have in state-controlled enterprise, paragraph (c): “a body corporate or unincorporated entity which is supported, directly or indirectly, by public money and over which the State, a statutory body or a company referred to in paragraph (a) or (b) is in a position to exercise control directly or indirectly;” If you look at the contractual arrangements for accessing the Green Fund, that is a perfect definition right there of the Green Fund donor, which is the EMA, controlling those bodies. So this definition (c) gives a lot more to entities, excludes persons—so any individual applying will be out, but if you made the mistake to put your company in, you would be caught under that, and it is a very wide net as well. So insofar as you are seeking to control the spread of the net in the definition of “public body”, we would need to look at the definition of “state- controlled enterprise” a little more closely. Sen. Ramlogan SC: I think, Chair, we are happy with it as is. Sen. Dr. Tewarie: Yeah, I do not think I really want to go into that. 265 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: I want to point out just one thing at (i) under public body. If you look at the definition of “state-controlled enterprise” it states—controlled, I think that— Sen. Ramlogan SC: Yeah the dash is missing. Mr. Chairman: All right, can we put in the dash? Sen. Ramlogan SC: Yes. Sen. Dr. Wheeler: Could I ask? What about the Tobago House of Assembly, aside from the division of the Tobago House of Assembly, there are a couple of special-purpose companies set up by the THA. Sen. Ramlogan SC: They would fall under (l). They would also fall elsewhere as well as under (e). Sen. Cudjoe: Mr. Chairman, I too have a concern with (e)— Sen. Ramlogan SC: They would be covered under— Sen. Al-Rawi: Put on your mike Shamfa, your mike. Sen. Cudjoe: It is not staying on. Sen. Ramlogan SC: That is a sign from God. [Crosstalk] Sen. Al-Rawi: It is on now. Sen. Cudjoe: Mr. Chairman, I have a concern with (e), under public body. That reads: the Tobago House of Assembly, the Executive Council of the Tobago House of Assembly. I think Executive Council of the Tobago House of Assembly should be omitted. I do not see the purpose for it being there because it does not carry out procurement functions. The Executive Council is equivalent to the Cabinet. So I do not understand. The Executive Council should not be there. Sen. Al-Rawi: It will be captured by the Tobago House of Assembly. Sen. Cudjoe: Because the Executive Council is equal to what you have as your Cabinet. Sen. Al-Rawi: Which is the same observations I made in relation to Parliament, because you have been expansive in (e) for the Tobago House of Assembly, but not in respect of (b), which is the Parliament. Sen. Ramlogan SC: We have been advised that that is deliberate because the Tobago House of Assembly is the analogue to our Parliament, and the Executive Council is, you know, they do, in fact carry out that. 266 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Cudjoe: No, that is totally incorrect. The Executive Council is the elected Members that create your Cabinet, that make decisions just like what you have here in Trinidad. So if the Cabinet of the Government of Trinidad and Tobago is not there, what is the purpose of putting the Executive Council there? So you have to figure out what you are talking about. You are talking about the Tobago House of Assembly as the people representing the Tobago House of Assembly, or the Tobago House of Assembly as the place of debate like the Parliament? Sen. Ramlogan SC: No. Well, no. Well, we want to capture everything that is capable— Sen. Cudjoe: The Executive Council does not belong there. Sen. Ramlogan SC:—of expending moneys. Sen. Cudjoe: No, the Executive Council does not make those decisions. Sen. Ramlogan SC: They can. Well, I will defer to the Chief Parliamentary Counsel on this, and that was his advice. Sen. Cudjoe: No that is incorrect. That is incorrect. Sen. Ramlogan SC: But let me just confer with him, please. Sen. Al-Rawi: So what about Committees of Parliament then, are they to be included? [Crosstalk] Sen. Vieira: AG, I think the point is, this definition of public body was drawn from the Freedom of Information Act— Sen. Ramlogan SC: Yes it was. Sen. Vieira:—which dealt with public authority. Now, the problem was under the Freedom of Information Act, you are taking about providing information and it makes perfect sense in this context, but I do not know if it fits in procurement. Sen. Ramlogan SC: I hear you. Well, look, in the interest of time we can, look— Sen. Cudjoe: No. In the interest of what is right, that has to be omitted. Sen. Ramlogan SC: Hold on. Okay, hold on a second. “Yuh eh leh meh finish.” Sen. Cudjoe: “Mind yuh mike stop wuk, eh?” [Laughter] Sen. Ramlogan SC: Look, in the interest of time, firstly, I think that we have to cater for every conceivable situation. Even if you took out (e) in total, I would assume it will still be caught by virtue of the other provisions— 267 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Cudjoe: No, I am not asking for (e) to be omitted in total. Sen. Ramlogan SC: I am not finished. I am not finished. So I am saying as a consequence of that, we can take out the Executive Council of the THA, and that will be fine. Sen. Cudjoe: Thank you. Sen. Ramlogan SC: Yes. If you had let me finish, you know we would have been—[Laughter] Sen. Al-Rawi: Insofar as a division of the THA has been included on the advice of CPC, why is it that Parliament is left purely as Parliament then, if you are seeking to subcategorize? Sen. Dr. Tewarie: No, because the distinction, the coordination or the synergies with the Ministry or a department or a division of a Ministry. Sen. Al-Rawi: Right. That leads me then to the issue of whether one needs to include a definition of an accounting officer, because there are multiple agencies inside of here that have different definitions that apply to accounting officers. Sen. Dr. Tewarie: “Nah”, I do not think we need to. Sen. Ramlogan SC: “Nah”, I think we are okay with that. Sen. Young: Mr. Chairman, thank you. Through you, there was an enquiry when we were touching—well, I could not get my mike on—a short while ago on the state-controlled enterprise, when we were pointing out to Sen. Drayton. Attorney General, I was going to suggest that with (a) and (b), why were we limiting it to a company incorporated under the laws of Trinidad and Tobago? I was going to suggest that we put “or any other jurisdiction,” because we are presumably going forward if it does not already exist, you can utilize— Sen. Ramlogan SC: It crossed my mind, but because of the wide wording of (c)? Sen. Young: Of (c), well, that is the clarification. Did you think it was caught under (c)? Sen. Ramlogan SC: Sure. Sen. Young: Because I thought it made— Sen. Ramlogan SC: Because you see, the accent here really is on the use of public funds, and it would be caught there. 268 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Young: Correct. I just wanted that clarification. Sen. Ramlogan SC: Yes, that is fine. Sen. Young: Thank you. Sen. Vieira: Or you could just say a company which is owned or controlled by the State. Sen. Ramlogan SC: You can do that as well, but I think (c) would cover, you know— Mr. Chairman: So we are moving now to public-private partnership arrangements? Sen. Robinson-Regis: Sorry, Mr. Chairman, could I ask a question, please? Given the fact that with—I am back under public body and the Tobago House of Assembly. Given the fact that we said: “(f) a Municipal Corporation established under the…Act”; “(g) a Regional Health Authority established under the…Act;” would it make—just for clarity to do the Tobago House of Assembly as established under the Act? Sen. Dr. Tewarie: CPC? Sen. Cudjoe: No, leave it as—we are all right with it as it is. Mr. Macintyre SC: It is recognized. It is in the Interpretation Act. It is in the Constitution. Mrs. Robinson-Regis: So we will leave it as is? Sen. Ramlogan SC: Yeah. Sen. Robinson-Regis: All right. Mr. Chairman: So public-private partnership arrangement is the next definition, as circulated and shown in the track changes. Sen. Al-Rawi: Sorry, Mr. Chairman. In relation to public body, control includes where you have a significant shareholding? Sen. Ramlogan SC: Where are you on? Sen. Al-Rawi: No, I am just asking in general. So you may be constituted a significant shareholder in a major enterprise, but you do not have de facto or de jure control. So those are excluded? Sen. Ramlogan SC: Yeah. 269 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: The Minister of Finance and the Economy knows exactly what I am talking about. That is something which concerns me, because you may have significant investments using public money, where you have a significant shareholding, but which is exempted from this Act. Sen. Ramlogan SC: Not necessarily, because you see—no, no, you will be caught still whenever it uses public funds. I mean we keep forgetting this. The place you want to focus the spotlight is on the use—however constituted, once they use public funds, they are caught. Right, and that is the be-all and end-all. Sen. Al-Rawi: So AG— Sen. Dr. Tewarie: Under (l) for instance. Sen. Al-Rawi:—right, but— Sen. Ramlogan SC: And then they will also be caught under (c) in state- controlled enterprise because it will be indirectly supported. So I think—Chair, we are happy with this as is. Sen. Al-Rawi: Glad that the Government is happy. We are not finished yet though. Sen. Dr. Mahabir: Chair, with respect to (a), I was just wondering whether what is meant is that the private party undertakes to perform a function for the State, as opposed to a public function. So— Sen. Al-Rawi: Sorry, (a)? Sen. Dr. Mahabir:—(a) the private party undertakes to perform a function for— Hon. Senators: (a) of what? Sen. Dr. Mahabir: On page 5 of the track change of the private partnership. [Crosstalk] You see, it says: that the private party undertakes to perform a public function, which to me appears to be a little bit vague. What I am recommending is: the private party undertakes to perform a function for the State or provide a service on behalf of the public body. Would that make more technical sense? Sen. Al-Rawi: Sorry, Mr. Chairman— 6.15 p.m. Sen. Ramlogan SC: No, because you see what happens, a public function is something—the jargon is one we are familiar with it in law, so that you might find that you will run into problems otherwise. I think Sen. Vieira could probably assist me there. You see, it means for the benefit of the public. So it is wider and it captures much more. 270 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Mahabir: It is just that in my line of work “public function” means something else, so I want to avoid ambiguity, and really to avoid ambiguity, I would say a function for the State means that it is actually doing something at the request of the State. Sen. Ramlogan SC: I hear you. Sen. Dr. Mahabir: But if in law it is clear, then I am happy with it. Sen. Ramlogan SC: It is actually, and if there is any consolation you will hardly find somebody performing a public function that is not on behalf of the State. Sen. Dr. Mahabir: Okay. Sen. Prescott SC: Mr. Chairman, may I enquire? Mr. Chairman: Sen. Prescott. Sen. Prescott SC: Much obliged to you. The definition of “public-private partnership arrangement”, Attorney General—[Interruption] Sen. Ramlogan SC: Yes. Sen. Prescott SC: In “(a)” we have excluded the reference to—pardon me, not “(a)”, “(b)”. Sen. Ramlogan SC: Is it “(b)”? Sen. Prescott SC: Yes. “(b) the private party receives a benefit for performing the function...” I think that we ought to have included “or providing the service” which is in “(a)”. Sen. Ramlogan SC: I agree with that, yes. Agreed. Sen. Prescott SC: Thank you. Sen. Ramlogan SC: A function on behalf of the public for the benefit of the public. Sen. Prescott SC: While I am at it, let me just ask the AG to consider whether the provision of legal services is not now included in this definition, not necessarily that you, but comment on it now if you will give consideration. Sen. Ramlogan SC: No, you better help me out with that one, you know. Sen. Prescott SC: I think it is, but I would like you to consider it. 271 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: You do not think it is? Sen. Prescott SC: I think it is. Sen. Ramlogan SC: You think it is. Well, let us see. Sen. Al-Rawi: AG, I was literally just going to ask, “private party” what does it mean? Where is it defined? And then the second subset that I have was legal services and other professional services that, for instance, prohibit the type of solicitation route that is proposed by this Bill. So, I am concerned that the Legal Profession Act, for instance, which prohibits solicitation for legal services would run afoul and in conflict of this law, and whether we would have a problem in how we construe the law. Sen. Ramlogan SC: Well, it is a matter I have raised; as to how we will resolve it, we will have to put our collective heads together. One way is to exempt it and another is to find a halfway house. Hon. Senator: Correct. Sen. Dr. Balgobin: Attorney General or Minister, may I just ask for my own edification, when we say a “public-private partnership”—and I am coming back to “(a)”—I am just trying to understand what is caught in the net and what is left out. Mr. Chairman: If it includes, by the way, so it is not restricted. Sen. Dr. Balgobin: Okay. If I have, say, Servol, is that captured? Sen. Ramlogan SC: If you have what, sorry? Sen. Dr. Balgobin: If I have something like Servol, if I have what one might consider a charity, which may be receiving donations from the State, would that be captured in this definition? Another variant of that would be if, for example, I were to get lands from the State or to use a building from the State or some such thing in pursuit of say an educational objective or to house an orphanage or something. Sen. Ramlogan SC: I do not think that would be captured, because when one looks at “(b)”, it is compensation, charge or fees collected or a combination of such compensation and charge or fees. A donation will not be captured. Sen. Prescott SC: May I just add to that? It seems to me that if you go back to “(a)”, it speaks about the service being provided on behalf of the body. I do not know if Servol provides a service on behalf of the State. 272 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Balgobin: That is why I asked what do you mean by a “public function”, because a public function is the rendering of a service for the benefit of the public, and the State actually does a lot of these things. Sen. Ramlogan SC: But I do not think—the donation type will not be caught. No. I think what is envisaged is quite clear. It is either you are being compensated or paid for the performance of your service. Sen. Dr. Balgobin: Well, you know, that actually captures a new element of reality defined in the British system as the third sector, like social enterprises and so on which are now coming to the State and saying, “Let me use this building that you have. I am going to charge a fee, it may not be a market rate, but I am going to charge a fee to provide day-care services or some such thing.” Are they captured? That is the nuance I am trying to tease out because that is actually a big and growing sector, and it usually happens in places where there is market failure where the state cannot deliver the service. Sen. Ramlogan SC: You used a very appropriate example. Sen. Drayton: Could I just seek clarification following on what Sen. Balgobin is asking there when we think of the definition, again, of public entity and public body and we use the word “control”. So, I am just seeking clarification from Sen. Balgobin whether he is getting at influence; Government influence in that regard. Sen. Dr. Balgobin: Well, you are looking at a situation, any situation where a private party is partnering with the State or an agency or an arm of the State and using money or other resource from the State in pursuit of its objects and it may be charging fees in order to do what it is trying to do. Sen. Ramlogan SC: It would be caught is the short answer. Sen. Dr. Balgobin: So, I am just looking to make sure that we are clear on that, that they are now caught, because that imposes on the Minister a burden of administration on these public-private partnerships that they may not be tooled-up to deal with. Sen. Al-Rawi: Why is it only compensation from a public fund? Because I may have other forms of funds which are public money as well by way of debt or borrowing, et cetera. So while we determine in (b)(i): “(i) compensation from a public fund;” Why compensation? Is it payment of public moneys that we intended? I am not quite sure about the use of private party. Is it intended that private party is supposed to be a non-public entity? Is it just that? 273 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: Well, yes, the original concept is that private party would be a non-public agency, and it would not be a public body which is why you have public-private partnership by bringing, basically, a private sector entity in collaboration with a public body, but the issue that Dr. Balgobin was raising, the reason I was sort of reflecting on it is because I know this element of public- private partnership for public good is becoming a large phenomenon, and I am also thinking about our own situation which may very well involve things like preschools and those kinds of things. Sen. Al-Rawi: Exactly. Sen. Dr. Balgobin: I am of the view they ought to be captured. Sen. Dr. Tewarie: I did not have a ready answer for you, I was just kind of reflecting. Sen. Al-Rawi: This particular net, insofar as it includes service providers like attorneys, preschools, et cetera, the net here is particularly wide. Sen. Dr. Balgobin: Orphanages and homework centres. Mr. Chairman: One wonders if the regulator—because we have made an all- encompassing type of thing, because you need to capture everything otherwise people would start doing but I would expect the regulator to understand a charitable body, a service-oriented body, a social entrepreneur. I thought he was making regulations. Sen. Young: But, Mr. Chairman, unless the legislation specifically states, he would be ultra vires. He cannot look at this and determine, well, I am going to exclude orphanages. Mr. Chairman: No, I do not think exclude, you know, I am saying he would give a different level of regulatory environment and guidelines that they have to adopt. This is what I would hope, otherwise all the social sector would collapse tomorrow morning. But you do not want to leave them out because there are people who are going to take advantage of the loophole. I am expecting the regulator to make a different type of regulatory environment to treat with it. [Crosstalk] Sen. Dr. Tewarie: Go ahead Rolph. Sen. Dr. Balgobin: I just want to agree that the regulator would be expected to deploy a lighter touch on these things. I would add, when you see a “private party”, very often the legal vehicle in law for these things is a non-profit organization or a registered charity. Is that covered under “private party”? 274 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: It is under “state-controlled enterprise” under subclause “(c)”; it comes into that back door. Sen. Dr. Balgobin: No, no, but what I am saying Faris is that you may often create a legal vehicle to prosecute this objective, and you go for charitable status and you set it up as a non-profit, a company limited by guarantee or whatever. Is that captured as a private party or do you want to say private party and/or charity? Sen. Al-Rawi: Private party. That is why I asked the question: did you mean to say private party was everything that is non-public and your answer was yes, so that is why I am saying the answer to his question is yes. Sen. Dr. Tewarie: No, no, private party is non-public, but you have raised something which creates a grey zone. Right? And I think the only way to resolve that is to make sure that it is covered here and give the procurement regulator some space so they can provide guidelines. Sen. Ramlogan SC: But I just want to say for the record, Chair, that it certainly was not the Government’s intention and it is not the Government’s intention to impose the same level of restrictions on everyone across the gamut, on NGOs and charitable organizations and so on, because there would be a much greater and fundamental question of constitutional law involved in something like that. It means that if I am running a preschool and you give me some money per child as is going on now, if I want to buy chalk, duster and blackboard, I have to conform with this which, you know, I find that kind of indirect signing on and interference with my constitutional rights is something I think would be very severe. Sen. Al-Rawi: And the answer would be, because this is a three-fifths majority Bill which accepts—[Interruption] Sen. Ramlogan SC: Sure, which is why I am saying it for the record. So, we expect that when the guidelines and the regulations are made, there will be a tiered approach and there would necessarily have to be some element of differentiation to cater for the different scenarios. It is best left to the discretion and judgment of the regulator. Sen. Al-Rawi: Would that be to invite a claim of a breach of constitutionality for people in similar circumstances being treated similarly? Sen. Ramlogan SC: No, not necessarily, no. I think the comparators would be different and there would be justifiable grounds for the differentiation in law. One would be a charity, you know, the categorization will, in itself be of, you know— 275 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: The similar circumstance that I am looking at is the fact that they are all recipients of public money. Sen. Ramlogan SC: I know, but the difference would be the purpose for which the money is being used. One would be charitable in nature; one would be for profits, et cetera. He would find ways to differentiate it, do not worry. Sen. Dr. Balgobin: Would I be correct then to understand you to say that everybody who gets public money now will be affected, but the degree to which they will be affected will be managed and varied through the wisdom of the procurement regulator. Sen. Ramlogan SC: Yes. Sen. Dr. Tewarie: Yes, and we would have to take that into account. Mr. Chairman: I think that is the only way to do it. You see, if you left a loophole here everybody is going to try to run in and take advantage of it. Sen. Dr. Tewarie: And a clear distinction will be “for profit” and “not for profit”. Sen. Al-Rawi: Just to point out, a not-for-profit company under the Companies Act can still earn a profit and be liable under taxation law. So, the issue of making a profit is not driven there. Sen. Dr. Tewarie: But it would be one factor. Sen. Ramlogan SC: We will look at the point. Sen. Al-Rawi: But under this one, the thing that concerns me, declaring my interest as an attorney, of course, is the scope of public-private partnership inclusive of professionals including lawyers, including certain doctors, auditors, et cetera. How is that being treated with under this particular rubric? Sen. Ramlogan SC: Where are you getting at Faris? Sorry, under public- private partnership? Sen. Al-Rawi: Yeah. Does it fall, for instance, the private party undertakes to perform a public function or to provide a service on behalf—[Interruption] Mr. Chairman: To prosecute an action. Sen. Al-Rawi: Correct. So a fiat to prosecute by the DPP. Sen. Ramlogan SC: Listen, these are the matters I have raised before. My view is, we should exempt legal services; as to whether or not we should debate it, but it does not readily lend itself to the provisions of this law, number one; and 276 Public Procurement Bill, 2014 Tuesday, June 10, 2014 number two, it would have implications in any event and collide with the Legal Profession Act. I see Sen. Robinson-Regis shaking her head, so if you agree maybe we can do that because it does not conduce to it at all. Sen. Al-Rawi: I join you on the concern. My concern is whether it impacts. I mean, we are particularly aware as lawyers of that impact upon us, but I do not know professionally if it includes other professions as well. Sen. Ramlogan SC: It will have an undesirable and unintended consequence so that, you know, we should exempt it. [Crosstalk] Sen. Prescott SC: Hon. Attorney General, I would like us to return to that question of the exemptions at a later stage—[Interruption] Sen. Ramlogan SC: Indeed, Sir. Mr. Chairman: Sure. Sen. Prescott SC:—in particular when we look at—what is it called?—that level of contract that need not be reported on. I forget the word. The $50,000 thing, what do you call that? Sen. G. Singh: The threshold. Sen. Prescott SC: The threshold. That is a good word. Sen. Ramlogan SC: Sure. Sen. Prescott SC: So you agree we could come back to that. Sen. Ramlogan SC: Agreed. 6.30 p.m. Sen. Dr. Tewarie: Okay. Sen. Prescott SC: Just before I finish, Chairman, is there a term that is less indelicate than private party? Is this meant to deal with individuals as well as entities, more than one person? Sen. Ramlogan SC: Private party? Sen. Prescott SC: Yes. Is it meant to deal with individuals? Sen. Al-Rawi: No, it is not. It has been introduced as a contradistinction to public entity, as I understand it. Sen. Drayton: Mr. Chairman, I think with the Minister’s amendment with respect to “public body” and deleting the word “personal”, I think that answers that. 277 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Prescott SC: If it is meant to treat only with groups of more than one person, but I doubt that is what it is. It means me and a group of us. Is that what private party includes? The single professional and the partnership, and the firm? More and more private party—[Interruption] Sen. Dr. Tewarie: I must say that in conceiving a public-private partnership, we did not think about it. Sen. Al-Rawi: Your DBOM and DBOT and the other structures were what were in your mind, I can see. Sen. Dr. Tewarie: So what we are thinking about is when the State engages a private entity as a collaborator to deliver a public good. Sen. Prescott SC: An entity in your thinking was a collective? Sen. Dr. Tewarie: Yes. Sen. Prescott SC: Not an individual? Sen. Dr. Tewarie: Yes, it would be a company or whatever. Sen. Al-Rawi: Well then that is dangerous. Sen. Prescott SC: It is. It is. Well dangerous is exaggerating it, but it is not safe. Sen. Al-Rawi: Yeah. It leaves room for mischief. Sen. Prescott SC: Very well. Sen. Dr. Tewarie: But that is what public-private partnership is. Where is the mischief? Sen. Al-Rawi: In that one may avoid the operationality by constituting an individual to perform the function as opposed to a collective group. Sen. Ramlogan SC: Well how about if we define “private party” to say “‘private party’ means an individual, a body corporate or an unincorporated entity other than a public body;”? Sen. Al-Rawi: And that captures everything? Sen. Ramlogan SC: That captures everything. Are we all right with that? All right. Well, Chair, may I move to—[Interruption] Mr. Chairman: Can you read it for me? Sen. Ramlogan SC: Yeah. 278 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: Why do you want to put individual? Sen. Ramlogan SC: Because of the point Prescott was making. “‘private party’ means an individual, a body corporate or an unincorporated entity other than a public body;”. Sen. Dr. Balgobin: What about an incorporated entity? Sen. Al-Rawi: He has body corporate. Sen. Ramlogan SC: A body corporate. Yeah. Sen. Dr. Balgobin: So you are using that to define companies registered under the Companies Act, and all that stuff, right? Sen. Ramlogan SC: Yeah. Sen. Dr. Balgobin: Okay. Nice. Sen. Al-Rawi: “an individual, a body corporate or an unincorporated entity other than a public body;”. Sen. Ramlogan SC: Yeah. So that should save us about two hours. Mr. Chairman: To address the question of, you know, I know you have said you would come back to legal services, but it might have—architectural services, engineering services, I think it falls under it, but it could well be that the regulator, likewise, as he does for social services, has a particular touch relative to those particular professions, because of the peculiar nature—[Interruption] Sen. Al-Rawi: Whilst he may have a touch though, Mr. Chairman, the thing that concerns me is the fact that the legislation governing those entities, like the Legal Profession Act, prohibits the participation in public procurement of this type. Well, in terms of solicitation. Mr. Chairman: Well, you say that but, I mean, we gave the fiat, for instance, of the DPP as potentially falling within this definition. Sen. Al-Rawi: You see, my question is this: the cheapest legal service provider may not necessarily be the best, even with a light touch, so do I put out an invitation to tender? I have the exception, I produce the notices in respect of who is being—[Interruption] Sen. Ramlogan SC: When we come to it, Chair, there is no other Act—the Legal Profession Act is unique. I do not know if any of the other professions are governed by similar considerations, so maybe we would just perhaps treat with that, you know. 279 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: We will come to the exception later, Attorney General. Okay? Just before we move on from public-private partnership arrangement on (b), I just want to read out the amendment: after “the function”, I put “or the provision of a service”; is that what you wanted to say? Sen. Dr. Tewarie: “or providing the service”. Mr. Chairman: “or providing the service”. Sen. Dr. Tewarie: And then at the end of (iii), “and”. Mr. Chairman: Right, I thought so. Sen. Dr. Tewarie: And then at the end of the line which ends “function” at (c)—[Interruption] Sen. Al-Rawi: Sorry, did you mean “and” or “or”? Sen. Dr. Tewarie: “and”. Sen. Al-Rawi: It will have to be “or”, because it is any one of them. Sen. Dr. Tewarie: No. All. Mr. Chairman: No. It is all. Sen. Al-Rawi: Yeah. So it is “or”? Sen. Dr. Tewarie: No, it is “and”. Sen. Al-Rawi: Sorry, I meant in the transition from—we are dealing with public-private partnership and arrangement, right? And here we have which (a) does something, (b) does something, and at the end of (iii) you would have to include the word “or”; “(c) the private…is generally liable”? Mr. Chairman: No, I thought it was a conjunctive. Sen. Al-Rawi: So it is all three? Sen. Dr. Tewarie: All three. And then after the third line in (c), after “function”, “or the provision of service”. Mr. Chairman: Oh, I see: “or the provision of the service”. Okay. Sen. Al-Rawi: That is exactly what I just said. Mr. Chairman: All right. So that is the amendment proposed for public- private partnership arrangement. Sen. Vieira: May I just make one comment? 280 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Sure. Sen. Vieira: Tagging on Sen. Prescott’s request for a different phraseology for “private party”, I was going to suggest we use a private sector entity. Mr. Chairman: We came up with a definition, Sen. Vieira. Sen. Vieira: Oh, you did. Mr. Chairman: A definition was put forward: “‘private party’ means an individual, a body corporate or an unincorporated entity other than a public body;”. Sen. Vieira: Okay. No, but I was just saying, private sector entity as opposed to private party could—[Interruption] Mr. Chairman: I see, you mean a more delicate term. Sen. Vieira: More delicate, and I think it is also used elsewhere. Mr. Chairman: I am not sure it is. Sen. Al-Rawi: I think it is a little too restrictive. Mr. Chairman: Yeah. Sen. Dr. Edwards: Mr. Chairman, excuse, I have a little problem with “individual”. There is still somehow, I think, that it can come back to some professions, including mine, because a lot of times the Government funds us, whether it is for further studies—I mean, if you get down into it you can go on and on on how that could come back to bite the medical profession. So I do not like “individuals”, because a lot of times we do not operate as a company or a body; we usually go as individuals. Sen. G. Singh: You see, the idea being if you are the recipient of state public moneys, then you ought to fulfil the requirement of the legislation, whether you are an individual and whatever the entity. The question is the tiered system, the touch, according to Sen. Balgobin, of the regulatory arm, but you have to be able to fall within the ambit of the legislation. Sen. Al-Rawi: Agreed. Sen. Dr. Balgobin: “Ah getting public money, yuh have to get touched.” Not literally. [Laughter] Mr. Chairman: Sen. Drayton. 281 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. G. Singh: Embrace is a better word. Sen. Drayton: Mr. Chairman, I seek clarification under the next definition, which is “public property”. [Interruption] Mr. Chairman: Senators, can I just listen? Sen. Drayton: Yes, just before we move off from this page, under: “‘public property’ means real or personal property owned by a public body;” I just needed some clarification here because personal property is real property, and in view of the definition earlier on, a procurement involving public money and where we spoke about “controlled by a public body”, I just need some clarification on this definition. Sen. Al-Rawi: While you are at it, I had the same question, beneficially. How do you capture the beneficial entitlement as opposed to strict legal ownership? Sen. Ramlogan SC: Where is this? Sen. Al-Rawi: Definition of “public property”. Mr. Chairman: I take it that the word “owned” could mean beneficial or legal, or equitable, or trust, or whatever. Sen. Al-Rawi: I just want to be sure that is what we are saying. Sen. Dr. Balgobin: May I ask a question? Is information considered property or intellectual property? Mr. Chairman: Yes, it is intangible property. Sen. Dr. Balgobin: So when we say “real or personal property” is that captured in this definition? Sen. Al-Rawi: It falls under personal property. Sen. Ramlogan SC: Intellectual property is a form of personal property, yeah. Sen. Dr. Balgobin: No. No. Let us take the database of a Ministry; that is not personal property. Mr. Chairman: That is. Sen. Dr. Balgobin: It is? Sen. Al-Rawi: That is personal property, yes. Sen. Dr. Balgobin: Wow, what a profession law is. Okay, so it is captured? Sen. Ramlogan SC: Yeah. 282 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: Yeah. Sen. Dr. Balgobin: All right. Sen. Al-Rawi: I am not quite confident that “owned” means beneficially entitled to. Sen. Ramlogan SC: Well, let us leave that one. It would, because the concept of ownership in law covers both legal, equitable and beneficial. It does. Sen. Al-Rawi: On the record with it, sure? Sen. Ramlogan SC: Yeah. Sen. Al-Rawi: Senior, you agree with that? [Crosstalk] Sen. Prescott SC: What? Sen. Al-Rawi: “Owned” means beneficially owned as opposed to legally owned? Sen. G. Singh: Let us go. Let us move on. Sen. Ramlogan SC: Yeah, Chair, let us do it fast while they are talking. [Laughter] Mr. Chairman: You know, I do not see why you would restrict it, it is the word “owned”. Sen. Al-Rawi: I just want to be sure that we are catching the beneficial entitlement. Sen. Prescott SC: I think so. Mr. Chairman: In my mind, you would have to do the opposite. If you wanted to exclude official or equitable, then you would have to have express language excluding that. That is my take on it. Sen. Prescott SC: I think you are right, Chair. Sen. Al-Rawi: You do not want someone to turn around and say that— [Interruption] Sen. Ramlogan SC: All right, let us move on, guys. Mr. Chairman: So we are down to “unfulfilled contract”. [Crosstalk] Sen. Drayton: Sustainable procurement. Mr. Chairman: Oh. Yes. Yes. Sorry. I missed “sustainable procurement”. I was not sustaining the pace here. 283 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Mahabir: Chair, under “sustainable procurement”, I just have a matter of phrasing for the Minister to consider. On the last line it says, and I am quoting: “…but also to society and the economy…”, I am just putting forward for it to read as follows: …but also to the economy and the wider society, whilst minimising damage to the environment; So I put the “economy” first and the “wider society” after. Mr. Chairman: Can I get that? Sen. G. Singh: He put the “economy” before the “wider society”. Sen. Dr. Mahabir: Yes, Mr. Chair, this is what I am proposing just for continuity and flow: “but also to the economy and the wider society, while minimising damage to the environment;” Sen. Al-Rawi: And may I ask why we have suggested the use of “organisations” in line two as opposed to “public bodies”? Sen. Dr. Tewarie: Yes, we can change it to “public body”. Mr. Chairman: Where is that? Sorry, I did not quite—[Interruption] Sen. Al-Rawi: Second line: “sustainable procurement means a process whereby organisations”—[Interruption] Mr. Chairman: And we want to put public body? Sen. Dr. Tewarie: Public bodies. Mr. Chairman: Public bodies? Sen. Dr. Tewarie: Yes. Mr. Chairman: Can we move on then to “unfulfilled contract”? That just expands the definition. Sen. Dr. Tewarie: Yes. Mr. Chairman: Yes, Sen. Drayton. Sen. Drayton: Yes, I had raised this in my contribution and I am satisfied with this amendment here. Sen. Ramlogan SC: Great. 284 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Just before we go there, my Clerk is pointing out that there are two references to organization in the definition of “sustainable procurement”, and therefore the question is, are we changing both to public bodies? Sen. Al-Rawi: Yes, Mr. Chair. Mr. Chairman: You understand? At page 6, just before the end, “not only to the public body”, I take it. Sen. Dr. Tewarie: You can keep the second organization, you know, and it really does not hurt. You are referring to a public body, right; it is an organization, right? The same organization. Sen. Al-Rawi: I would think that we should put “public body” for consistency. Sen. Robinson-Regis: It should be consistent. Mr. Chairman: All right. So public bodies— Sen. Young: The second one would be one, singular. Mr. Chairman: Singular? Sen. Ramlogan SC: Yeah. Sen. Al-Rawi: May I ask in “unfulfilled contract”, a question, Mr. Chairman? Mr. Chairman: Yes, sure, that is what we are on. Sen. Al-Rawi: Yes, Sir. Mr. Chairman, “‘unfulfilled contract’ includes”, as opposed to “means”, we have that, “a contract that is incomplete, terminated or delayed;”. As I have read this Bill, a framework agreement and a contract are not on equal footing, so I was wondering whether a framework agreement needed to be included here, because they are treated as distinct creatures in this Bill. Sen. Dr. Tewarie: I have to be honest, I do not follow you. Sen. Al-Rawi: Okay. So a framework agreement is a creature of this Act. We create framework agreements here. We later on in the Bill are going to decide how contracts are concluded, whether in writing or orally, upon the dispatch of notice or execution of the contract, but a framework agreement never comes quite into the being of a contract, and one would want to in the report, because unfulfilled contracts arise when we are doing the reports to Parliament or the reports every quarter from the procuring entity, so would we not also want to report to framework agreements that have come to an end or not been fulfilled? So my question then, perhaps I should put it another way— 285 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: Yeah. Sen. Al-Rawi:—is a framework agreement a contract? Sen. Drayton: Yes. Sen. Ramlogan SC: Well, no, you cannot answer that in a vacuum, it will depend on the terms and conditions of the particular framework agreement. So you cannot just ask it while it is not a label. Mr. Chairman: I wonder if the way to treat with that is when we come to the substantive clause as to what has to be reported, then decide whether we want to include framework agreements, because it is a defined term. Sen. Al-Rawi: Yeah. Because it says that you should report on unfulfilled contracts, and here we sweep to wrap everything up. Mr. Chairman: I am saying, look at the substantive and you say unfulfilled contracts, if we want to say framework agreement, but we need to see it in the context to make a decision, is what I am suggesting. Sen. Al-Rawi: Okay, I have no objection to that, Mr. Chairman, save that we would have to reserve the right to come back to the definition. Mr. Chairman: So “value for money” is next? Sen. Dr. Tewarie: Yes, and this is a new addition. Mr. Chairman: This is new? Sen. Dr. Tewarie: Yes. Mr. Chairman: Based on, I take it, some Senators asked for this. Sen. Dr. Tewarie: Yeah. Sen. Balgobin pointed out the oversight here. Mr. Chairman: Sen. Drayton, you were asking a question. Sen. Drayton: I take it, again, this definition here will allow the regulator to make some rules—[Interruption] Sen. Dr. Tewarie: Regulations as to how you calculate value for money. Sen. Drayton:—as to a formula as to how you will calculate value for money. Sen. Dr. Tewarie: Assess. Yes. Sen. Drayton: And when we link this back with, for instance, things like local content, et cetera. Sen. Dr. Tewarie: Local content, local industry, et cetera. 286 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Presumably, he will want to drive the process, saying: look, when you go out to tender, when you come to make an assessment as to which one should I follow, value for money becomes part of the ingredients of that, I think. Sen. Dr. Balgobin: Mr. Chairman, if I may, the language for “value for money” really involves three steps: inputs, outputs and outcomes, and so it is good for us to find a way to include that here. 6.45 p.m. Sen. Dr. Balgobin: So, for example, you may wish to say: “value for money” includes the value derived from the optimal balance of outcomes”—as opposed to benefits— Sen. Al-Rawi: Correct. Sen. Dr. Balgobin:—“and input costs on the basis of total cost of ownership or implementation;”. Sen. Al-Rawi: Yes, I had a problem with ownership as it related to services, for instance. Sen. Dr. Balgobin: Yes, so ownership or implementation or provision. Sen. Dr. Tewarie: Could we use “provision” there? Mr. Chairman: After “ownership” what do you want to say? Sen. Dr. Balgobin: Implementation or provision, either of them. Sen. Dr. Tewarie: If I captured it right, this is what it would read: “value for money” includes the value derived from the optimal balance of outcomes and the input costs, on the basis of total cost of provision; Right? Sen. Dr. Balgobin: Yes. Mr. Chairman: Total cost of? Hon. Senators: Provision. Sen. Dr. Tewarie: Yeah, of providing. Sen. Vieira: I was wondering whether you could use the word “resources” in there—optimal balance of resources? Mr. Chairman: Is it provision or provisioning? Sorry, I have a little difficulty. Is “provisioning” the right term or you may want to choose something else? But provision to my mind, as opposed to provisioning—or is it procurement? 287 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Balgobin: What I am saying here, Minister, and I think you have captured the very important aspect of this: without this, this legislation only looks at input costs. It tries to generate transparency around the cost of inputs, but it does not orient us as a State, towards what we get for those— Mr. Chairman: I understand that. Sen. Dr. Balgobin: So that outcome orientation, not just outputs, but outcomes, are really what we are after. Sen. Dr. Tewarie: Is “provision” the right word there? Mr. Chairman: I was suggesting “procurement”—procurement is what really ties back— Sen. Dr. Tewarie: Okay, procurement. [Crosstalk] Mr. Chairman: Can we read back the sentence? “value for money” includes the value derived from the optimal balance of outcomes and input costs on the basis of total cost of procurement; Sen. Dr. Tewarie: Cost of procurement. Sen. Maharaj: You are leaving out the implementation and provision? Sen. Dr. Tewarie: Yes, you do not need that. Sen. Dr. Balgobin: I was happier with provision actually, because it captures more than just the cost of purchase. It may be, for example, that you are—unless you consider the cost of acquisition, also the cost of implementation. Mr. Chairman: I thought procurement was what we are dealing with as a totality. Therefore, when we use that language it encompasses everything that this Bill talks to. Sen. Dr. Tewarie: I think what he is getting at is the outcome issue. [Crosstalk] Mr. Chairman: The total cost of what? Sen. Dr. Balgobin: Mr. Chairman, what we are trying to do is to cause the Office of the Auditor General and, by extension the PA(E)C and the Parliament, to lift its chin and look beyond the initial cost of acquisition to see what the societal benefit is, and to measure that and track that over time. That is a very significant change. So I would encourage the Minister to not stop at procurement. Sen. Dr. Tewarie: And to do what? 288 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Balgobin: That is why I substituted for benefits, outcomes. Mr. Chairman: I understood that. Sen. Drayton: May I just seek some clarification, Chairman? When you use the word “procurement”, you are using it where exactly in this? Mr. Chairman: In place of ownership. Sen. Al-Rawi: The last word. Sen. Drayton: So the total cost of procurement? Sen. Al-Rawi: Procurement is a defined term in this Bill, which would mean the acquisition of goods, et cetera. Mr. Chairman: Yes, it is the totality of what we are doing here, and I thought that best encapsulated what we wanted. Sen. Drayton: I thought the value for money, the definition here, was getting at cost and benefit, and I understand the value of the word “outcomes” and input costs. I am not too sure— Mr. Chairman: I understood value for money. We know what goal we want to achieve, but the best way to go towards that goal, you want to do it in the most optimal fashion. So that the inputs and the outcome produce the best procurement process. Sen. Dr. Tewarie: Chair, the reason why the ownership issue was raised in this was because ownership goes to the end of the delivery of the procurement process, which is the outcome, but it then takes into account that you may have consequent costs and activities related—yes, like maintenance and so on. Mr. Chairman: And you want to capture that. Yes, I understand that. Sen. Dr. Balgobin: You want to capture that, because remember inputs, outputs and outcomes are measured by cost efficiency and effectiveness measures. Sen. Al-Rawi: No, procurement ends at the goods and services. Sen. Dr. Balgobin: Yes, so it needs to be a little bit further along. Mr. Chairman: I had thought, when we talked about procurement we were saying, look, this is not just buying goods and services, but it went beyond that. Sen. Al-Rawi: Procurement in the Bill, Mr. Chairman— Sen. Dr. Tewarie: No, but there is a definition, you see. 289 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi:—means the acquisition of goods, works or services involving the use of public money. So procurement does not include, for instance, disposal or maintenance of the asset or long-term viability of the project. Sen. Dr. Tewarie: Let us keep ownership, I think that is the safest thing. Sen. Al-Rawi: But how do you own a service? Sen. Dr. Balgobin: You could own a service. Sen. Al-Rawi: So “provision” will perhaps be a better word? The problem with ownership is that you do not own a service. So if you are procuring something by way of services, if you are procuring your service, you do not own the service. Sen. Dr. Balgobin: Minister, where this becomes important as well is with public private partnerships. You may not own the output, but you will own the outcome. So provision is good. Sen. Dr. Tewarie: So what would be the word? I am just looking for the word. Sen. Al-Rawi: I thought provision could perhaps— Sen. Dr. Balgobin: So provision is good. Mr. Chairman: Except, I would have said provisioning—[Crosstalk] just seems to be from a language perspective. Sen. Dr. Balgobin: Provisioning is fine. We are all for provisioning. Sen. Dr. Tewarie: Well, I will not argue because I will be quite frank, I do not know what the meaning of “provisioning” is. [Laughter] Sen. Young: Mr. Chairman, should it not go further than—is the provisioning of the good or service, or you just stop at provisioning? Mr. Chairman: Well, provisioning for me encapsulated both service, goods and everything. I do not have a dictionary. Sen. Al-Rawi: Save that it is something to write down in accounting senses. Sen. Dr. Tewarie: Chair, I think Sen. Dr. Wheeler is trying to get your attention. Sen. Dr. Wheeler: Actually, for the health sector this is actually very important because, for example, let us say you want to purchase an MRI machine. You can have one person bid a very cheap machine, but the consumables are very 290 Public Procurement Bill, 2014 Tuesday, June 10, 2014 expensive. You can have another person providing a more expensive machine and the consumables are less. So over five years, the machine that might have cost you a lot more initially, ends up being much cheaper. So you really need to have—it is not just the equipment— Mr. Chairman: Yes, I understand. Sen. Dr. Wheeler:—but what it is there to—and for the health sector it is very important. Mr. Chairman: So the life of the product is an issue as it were? Sen. Dr. Wheeler: Yes. Sen. Al-Rawi: My only fear on provisioning, Mr. Chairman, is that the most immediate interpretation of “provisioning” for me comes in an accounting context, which means to write down the value over time. So I was just concerned about that connotation. Mr. Chairman: Let me look it up. Provisioning is an accounting term, I agree, but I thought it was also used—provisioning, according to this definition from Google says: Supply with food, drink or equipment, especially for a journey. Then it says: Set aside an amount in an organization—which is the accounting term. So maybe it is not the happiest of— Sen. Al-Rawi: Yes, that is my fear. Mr. Chairman: The total cost of provision— Sen. Al-Rawi: Of the goods or services. Sen. Vieira: Providing or supplying of something. [Crosstalk] Sen. Maharaj: Why we cannot use procurement? Sen. Al-Rawi: Because it ends at the end of the procurement. Procurement is defined as the beginning from RFP stage, and the conceptualization to the end. Sen. Ramlogan SC: Ownership or procurement, acquisition— Mr. Chairman: Actually, the definition of “provision” says the action of providing or supplying something for use. 291 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: Let us change it and move on. Mr. Chairman: We would see if provision would be suitable. Sen. Al-Rawi: So long as it is on the record that that is what we intend. Mr. Chairman: That you intended. Sen. Al-Rawi: Seeing that the word comes from you, Mr. Chairman, and not dasheen as suggested by Sen. Maharaj. Mr. Chairman: So can we move to works? We had already put forward a revised definition of “works”. Sen. Dr. Tewarie: Could I make a suggestion for the last thing here, because I mean—it is a little longer than I would have liked, but after “total cost of”, I would add “supply, maintenance and sustainable use”. Mr. Chairman: I like that, you know, because it gets more after what you are really trying to capture. Sen. Dr. Tewarie: Because that is really your value for money. Mr. Chairman: I like that. [Crosstalk] Sen. Dr. Tewarie: That would capture “value for money”. Mr. Chairman,: And it captures what we are after altogether. Sen. Vieira: On works, Mr. Chairman, I was thinking about what Sen. Al- Rawi had said, and I have come up with a longer definition. I just wanted to run it by you: “‘works’ includes roads, bridges, drains, buildings, facilities and engineering undertakings of all kinds, whether construction, alteration, repair, improvement other than ordinary maintenance executed using public money. Sen. Maharaj: What about air condition? [Laughter] Sen. Vieira: You see, just limiting it to buildings— Mr. Chairman: No, we should say we took away buildings. [Crosstalk] I have it as ‘“works include” so that is the first thing taken care of “construction and engineering works of all kinds”, is what we put forward Sen. Dr. Tewarie: And that will take care of all your bridges, roads and everything. Sen. Vieira: Construction and engineering works of all kinds? 292 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: Yes. Sen. Vieira: How about “executed using public money”? Mr. Chairman: Well, I take it, it will come into context. Sen. Al-Rawi: Works is applied into a context later. My only concern is to capture things like demolition. [Laughter] Mr. Chairman: But demolition is an engineering work, I would have thought. Sen. Al-Rawi: Because we struck buildings, we have put construction and engineering works. Sen. Dr. Tewarie: We could add demolition, you know. Sen. Al-Rawi: No, no, no; I do not want to add it in just for adding it in. Sen. Ramlogan SC: No, it is covered by engineering, Faris. Mr. Chairman: The problem when you put in another word, is that you might be restricting rather than widening. Sen. Ramlogan SC: That is the problem. [Crosstalk] Mr. Chairman: Can we start with Sen. Drayton’s concern. Have we canvassed all your concerns? Sen. Drayton: My concerns are taken care of because the Minister has included “public confidence” in his amendment, and the aspect of the environment is dealt with under the definition of “sustainable procurement”. Mr. Chairman: So we have captured all your concerns? Sen. Drayton: Yes, you have captured my concerns. Mr. Chairman: Then we had Sen. Vieira. Have we captured your concerns? 7.00 p.m. Sen. Vieira: Yeah. We have indeed. Mr. Chairman: Okay. Very good. So what I propose to do is that I am going to put the question, and then if you want to interject, if you could tell me which definitions you want to focus on. Sen. Al-Rawi: Just one moment, Stuart. Mr. Prescott SC: I would like to hear “value for money” articulated in this new— 293 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Oh, sure. I will read that out. Can I read that out as we have it? So: “‘value for money’” includes the value derived from the optimal balance of outcomes and input costs on the basis of the total cost of supply, maintenance and sustainable use.” Mr. Prescott SC: That is “maintenance” with an e, not an a. Mr. Chairman: I took it to be that. Yes. So, I was asking Sen. Vieira, you said that your concerns were met. Sen. Vieira: Yes. Yes. Mr. Chairman: So what I was asking Sen. Al-Rawi, I think you had a few more comments. Sen. Al-Rawi: I had just a few quick questions though— Mr. Chairman: Sure. Sen. Al-Rawi:—to the hon. Minister. Hon. Minister, on page three of the original Bill, the definition of: “‘disposal of public property’ includes the transfer without value, sale, lease, concession, or other alienation of property that is owned by…” the State. So that property includes all property chose in action, intellectual property, everything. So, we are good with that. Right? Sen. Dr. Tewarie: Yes. It is not by the State, “eh”. We put “a public body”. Sen. Al-Rawi: Right, by “a public body”. And then we had under “framework agreement”—just for clarification. Sen. Dr. Tewarie: Yeah. Sen. Al-Rawi: “‘Framework agreement’ means an agreement or other arrangement between one or more procuring entities and one or more contractors or suppliers which establishes the terms, in particular in terms as to price and, where appropriate, quantity, under which the contractor or supplier will enter into one or more contracts with the procuring entity during the period in which the framework agreement or arrangement applies;” Sen. Dr. Tewarie: Yes. Sen. Al-Rawi: So this is similar to—is this intended to capture things like MOUs or heads of agreement which are not quite agreements, but maybe agreements, may be understanding subject to contract? 294 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: No. It is—a “framework agreement” is when there is something which can only be supplied by a handful of people, and what you do is that you bring this handful of people into the “framework agreement” and you agree on the terms and conditions of the contract. And on the basis of that, as you need supplies you use one of those people that are part of the “framework agreement”. Sen. Al-Rawi: So it is— Sen. Dr. Tewarie: Among them, within that framework agreement, you do not have to take the bidding beyond the people involved in the framework because it is something for which there is a scarce supply of resources. Sen. Al-Rawi: Right. Oh, that is very helpful. So it is intended to capture the contractual arrangement amongst providers. Sen. Dr. Tewarie: Yes. Yes. Sen. Al-Rawi: Because— Sen. Dr. Tewarie: It will be a contractual arrangement involving the procuring entity or entities and a limited group of suppliers. Mr. Chairman: It is called a master agreement in some terms. Sen. Al-Rawi: I understand what it is. My concern is that, what I understand it now, in light of the explanation by the hon. Minister and what it says may be two different things because I am looking at the enforceability aspect of the arrangement, and insofar as I saw in the Bill a separate treatment for framework agreement versus contracts under the Act because—sorry, this Bill. The Bill proposes to establish how contracts are formed. So, I was wondering about the separation between the two, but you have just explained what it is you are intending to get to. Sen. Vieira: I just wanted to put something on the record because I thought it was important. “‘Public property’ means real or personal property owned by a public body;”. Now the question of personal property—I do not think that people really appreciate it as a term of art, but if you use the definition given from the book Personal Property Law by Prof. Bridge, he says: It is a commonplace observation that personal property or personal realty is all the property that is left—one’s land—that is, real property or realty—has been subtracted. Personal property is, therefore, residual in character. So personal property is all encompassing. Mr. Chairman: And that is what is being said here. 295 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Vieira: Yeah. Right. Sen. Al-Rawi: Just on “framework agreement”. The use of procuring entity— did we want to prescribe instead “public body” because the procuring entity means while the procurement cycle is in effect. Sen. Dr. Tewarie: I do not know. I have to get guidance on that because I raised this—I know that there is clearly defined here what a procurement entity is. Sen. Al-Rawi: Correct. Sen. Dr. Tewarie: And a procurement entity cannot be anything but a public body. Sen. Al-Rawi: Correct. Sen. Dr. Tewarie: Right. So, I do not—I sense that there was some discomfort about “procurement entity”, public body, but I do not see how it is a source of discomfort here, but I mean, if we can argue— Sen. Al-Rawi: Okay. Why I raised it—what is in my mind as a mischief is, a procuring entity is a public body that is engaged in a procurement process that starts—and is defined in the Bill as to where it starts and where it ends. Mr. Chairman: Correct. Sen. Al-Rawi: A “public body” is an entity which exists by itself as a public body and may exist outside of a procuring process. Insofar as a “framework agreement” includes another arrangement other than a contract—in other words then, it may be defunct, it may be devoid of consideration, for instance, and may therefore, not be an agreement which is upheld as a contract in law. Sen. Dr. Tewarie: Yeah. Sen. Al-Rawi: Right. So do you want to exclude it, exclude the “public body” which may not necessarily be in a procuring arrangement? So I thought that the “public body” as opposed to “procuring entity” widens the scope of the “framework agreement”. Mr. Chairman: I mean what I see here, it starts off by saying it is an agreement with one or more procuring entities. That indicates procuring entities could get together and have framework. Sen. Al-Rawi: I am on about “public body”. Mr. Chairman: All right. So I was coming to that. But then when you seek— when you go down to “under which” from that point, “under which the contractor or supplier will enter into one or more contracts with the procuring entity…” 296 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: Yeah. Mr. Chairman:—I think the two things dovetail into each other. Sen. Ramlogan SC: Yeah. We are happy with it as it is, Chair. Mr. Chairman: Yeah. It seems so to me. It captures exactly what the Minister says. You have the “master” or “framework agreement”. It is there with, let us say, five contractors or suppliers, and we will pull a contractor or supplier— Sen. Al-Rawi: Mr. Chairman, I have raised the question insofar as a judge may very well ask himself, at some point in interpreting this legislation, why would Parliament in its wisdom treat a “public body” different from a “procuring entity”? And the only rational reason could be that it is only when a “public body” is engaged in the process of procurement that we are biting it here. Mr. Chairman: I agree with that. Sen. Al-Rawi: And insofar as the framework agreement can be a loose arrangement not tantamount to a contract— Mr. Chairman: I do not agree with you, Senator. Sen. Al-Rawi: Well what does “other arrangement” mean? Sen. Ramlogan SC: No. Well, listen. That is a catch-all provision to cater for any permutation, but the point is, a “framework agreement” will be a prelude and a forerunner to something else that would involve the expenditure of public funds, and it is at that stage you will catch them. So, Chair, on this matter— Sen. Al-Rawi: So you may not be in the procurement process. Mr. Chairman: It ultimately says, “under which the contractor or supplier will enter into one or more contracts”. Sen. Ramlogan SC: Yes. Mr. Chairman: So at that point in time— Sen. Ramlogan SC: That is what I am saying. Sen. Al-Rawi: That is my point, Mr. Chairman. My point, Mr. Chairman, is that because you are not yet in the procurement process— Sen. Member: Yes, you are. Sen. Ramlogan SC: Right. Sen. Al-Rawi:—well, no, not by the definition— 297 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: I do not agree. You began—look I want X services so I identify four or five people that are specialised in this service, but I “doh” want to have to go out every time I need to have a particular product sold to me, to go out and tender, so I create a “framework agreement”, a “master agreement”. I then go to these four people and say, this is the agreement, and when I want to ask for the goods, I call upon them, say this is the framework agreement, please, deliver in accordance with this, the price, the quantity— Sen. G. Singh: Chairman, in reality it takes place in the CTB now with bonded contractors. Sen. Dr. Tewarie: Yes. Sen. G. Singh: You are bonded, the price has been established, and you are called upon to provide the service. It is a similar situation. Mr. Chairman: I do not see a problem. Sen. Dr. Tewarie: Chair, I will just refer Sen. Al-Rawi to the bottom of page three, the procurement proceedings where it is defined. Sen. Al-Rawi: Yeah. I was just looking at that. Sen. Dr. Tewarie: Okay. All right. Mr. Chairman: So the procuring entity of both parties— Sen. Dr. Tewarie: Sen. Al-Rawi, help me to proceed with this thing. Sen. Small: Mr. Chairman— Mr. Chairman: Sen. Small. Sen. Small: Yes, Mr. Chairman, I actually have no problem with this because I can think of several instances where this is actually necessary. The Minister of Energy and Energy Affairs would be aware the National Gas Company has a standing arrangement with a company to do something called “hot tapping”, and when the company needs somebody to come and do hot tapping there are several—only a few companies in the world—hot tapping is actually tapping a live natural gas pipeline to do emergency work. You do not have time to tender for that. You have a standing arrangement, and the guys fly in here, and they do the work under a standing arrangement. Sen. Al-Rawi: That is captured in the Bill. Sen. Small: So, I think, I understand that there are circumstances that can arise where that is not an unusual— 298 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: My last question on it which will give the clarity to assist you to move on, hon. Minister. In the definition of public-private partnership arrangement which we just did, we amended it to say, ‘”it includes an arrangement between”, we struck “procuring entity”, we put “public body” and we put in “and private party”. Now, we put that “public body” there for a reason as opposed to “procuring entity”; we specifically chose “public body”. And, in my view, we did it correctly because it broadens the scope of that type of arrangement. When I come back to this arrangement in a “framework agreement” which means another arrangement, I wanted to be sure that I caught it even before the procurement process began, and after the procurement process ended because of the nature—because of how loose the arrangement could be; and that is why I raised the question. Sen. Dr. Tewarie: Okay. I understand. But, you know, I am happy with this, Chair. Sen. Young: Mr. Chairman, if I may? Mr. Chairman: Sen. Young. Sen. Young: Thank you. If we can go to the definition of “tender security”, please. And I just wanted to add— Sen. Al-Rawi: Oh. Yes. Sen. Young:—we have: “‘tender security’ means security required from suppliers or contractors by a procuring entity and provided…”, et cetera. And I just wanted to add just after: “…cash deposits, promissory notes and bills of exchange;” I would like to suggest “and other like instruments”. So take out the “and” between “promissory notes and bills of exchange”, put a comma and then add “and other like instruments”. Sen. Al-Rawi: And specifically on that I— Sen. Ramlogan SC: We did that on the strength of your parents. Sen. Al-Rawi: And I also wanted to add into that the fact that I thought that “indemnities” was left out. Now, “other like instruments of guarantees”, et cetera, “securities” is not tantamount to an indemnity which may be satisfactory in and of itself. For instance, an indemnity provided by a state entity is a valuable form of security. So I wondered where indemnities factored into this. Mr. Chairman: Well, it just talked about bank guarantees— Sen. Al-Rawi: But a bank guarantee and an indemnity is not the same. 299 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: I know, it is just generally included in indemnity. Sen. Al-Rawi: But those imply securities— Mr. Chairman: Then it talked about “surety bonds”. Surely that is a type of— Sen. Al-Rawi: “Surety bonds”, “bank guarantees”, et cetera, are all in relation to cash. An indemnity is a much broader concept than that. So I thought that an indemnity was a valuable form of security. Sen. Ramlogan SC: Yeah. Well, listen—we agreed to put in “dem” things, you know. Mr. Chairman: So after “bank guarantees”, you will put in “indemnities”? Sen. Ramlogan SC: Yeah. Sen. Dr. Tewarie: “Indemnity”. Okay. Sen. Ramlogan SC: I called the chairman of our economics board, our economic development board, Mr. Young, and he— Hon. Senator: And he suggested. Sen. Ramlogan SC: Yes. [Laughter] Mr. Chairman: Any other matters to raise on this? Sen. Young: Yes, Mr. Chairman. Sen. Ramlogan SC: “Boy, I go ha to jharay you or something, yes.” Hon. Senator: “Yuh” late. [Laughter] That time passed. Sen. Al-Rawi: Mr. Chairman, because we jumped around, I am just making sure that we have not covered it. So just a moment, please. [Crosstalk] “Public money”: “(e) raised in accordance with a written law, for a public purpose;” I just wondered why it is we were limiting it only to public purposes because I may limit it—I may actually spend public money for purposes other than public purposes. 7.15 p.m. Sen. Ramlogan SC: I mean, the whole thrust of the procurement legislation is to capture it when you are spending it for public purposes. 300 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: So, ‘“public money’ means money that is—”, for instance: “(d) distributed by a public body to a person;” so that is Ministry of the People and Social Development, Green Fund, whatever: “(e) raised in accordance with a written law, for a public purpose;” I may raise money in accordance with a written law for a purpose which is not a public purpose and vire the money, et cetera. Sen. Ramlogan SC: No, but hear the mischief. The mischief that we intended to prevent is the public purpose. I mean you are not going to capture the Girl Guides and the Boy Scout and so on with this. Sen. Al-Rawi: Okay. Sen. Dr. Tewarie: More than that, you do not want to raise public money in that way for a private purpose. Sen. Al-Rawi: Okay, under the definition of “services”: ‘“services’ means any objects of procurement or disposal other than goods and works and includes professional, non-professional and commercial services as well as goods and works which are incidental to but not exceeding the value of those services;”. What does that mean? Sen. Ramlogan SC: It means services. Sen. Al-Rawi: ‘“services’ mean any objects of procurement…”. What is an object of procurement? Sen. Ramlogan SC: Well, the object is a means to an end and the end being the service that you procure. So, the object of the procurement is the service that you desire. Sen. Prescott SC: Sen. Al-Rawi, are you thinking of another word? Sen. Al-Rawi: I do not know, I just find it tortuous. Hon. Senator: Which word, Faris? Sen. Al-Rawi: The definition of “services”. Sen. Ramlogan SC: What he say, he just want to torture us? [Laughter] Sen. Al-Rawi: Tortuous, as existed. Could I ask through you, to CPC, where this definition comes from? Sen. Prescott SC: Is ‘means’ a synonym for objects? 301 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: It came from legislation in Kenya. Sen. Al-Rawi: Probably translated badly. Hon. Senator: But Kenya is English. Sen. Dr. Tewarie: They speak English. Sen. Ramlogan SC: They speak English in Kenya, let me just say that for the record. Sen. Prescott SC: Chair, I just wanted to—if the Minister thinks that “means” is a synonym for objects, in the event that it is more acceptable. I am not proposing it, I am merely saying, is it likely to be more acceptable? Sen. Ramlogan SC: The way I read it I thought they are trying to focus on the end result—[Interruption] Yes, so I read it as meaning ‘“services’ means any objects of procurement…”, so, in other words, you are focusing on the end result, what is it you want to procure. Mr. Chairman: Yes, that is what I thought of. Sen. Ramlogan SC: That is how I read it. Sen. Prescott SC: Whereas “services” suggests that it is the thing by which you produce the result. Sen. Dr. Tewarie: No, they are just trying to distinguish between goods and other tangible things and services. Sen. Ramlogan SC: Well, Elton, what you have in mind then? Sen. Prescott SC: No, actually I am only now coming into the debate and I am wondering what it is we are really trying to capture so that we can move on. Sen. Al-Rawi: And secondly, the exclusion of, let us say that you have services valued at $25 million—an audit service for instance for a big entity and I am specifically excluding “goods and works which are incidental to but not exceeding the value of those services;”, so do I really want to cap the value of those goods and works at the same $25 million? Sen. Ramlogan SC: Chair, I think it is a good working definition, you know. I think we are happy with it as is. Sen. Dr. Mahabir: Permit me a bit, ‘“services’ means it “includes professional, non-professional and commercial services…” You see, you cannot define a service as another service. Would the word “intangible” be acceptable to you to replace “services”, so it “includes professional, non-professional and commercial intangibles”. 302 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: Nah, that would cause some problems. Mr. Chairman: You are entitled to use the word “services” within the definition even though it is a definition of service. Sen. Dr. Mahabir: It is tautological, but if it is acceptable in law. Mr. Chairman: Yes, it is. Sen. Dr. Tewarie: I just read it again and I think, I, myself, when you raised it, was a little confused but I think it makes sense. ‘“Services’ means any objects of procurement or disposal other than goods and works and includes professional, non-professional and commercial services…” All right? So, “services” is non- goods. All right? But, it goes on, but it also includes “goods and works which are incidental to but not exceeding the value of those services”. In other words, the services that you are measuring here may include goods and works but they are a minor component of that. Sen. Al-Rawi: So, disbursements, for instance, in a legal Bill? So, you will have fees on one column and disbursements on another? Sen. Dr. Tewarie: I think the English makes sense now and it captures the thing, Faris. “Leh we go, nah?” Sen. Al-Rawi: So, are they intended to be included as opposed to excluded? Sen. Dr. Tewarie: No, included. In other words you do not dissect. If you are assessing the services, and part of the services involves some good, you take that into account, but the services component is higher. Mr. Chairman: And it is just incidental to. Sen. Al-Rawi: Okay, Mr. Chairman, a few more. Mr. Chairman: The question is, sorry? Sen. Al-Rawi: ‘“solicitation document’ means a document issued by a procuring entity, including any amendments thereto, that sets out the terms and conditions of the procurement;” Just a question for the record, does this include the agent of the public body? Under the principle that the agent binds the principal, and solicitation being the narrow definition here, it means a document issued by a procuring entity. Does it include persons acting on its behalf? Would I be excepted out of it? Sen. Ramlogan SC: It would depend on whether it was issued on behalf of the procuring entity. It does not matter who issued it. It is a question of whether it is issued by the procuring entity. 303 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: Okay. Sen. Ramlogan SC: We could put “by or on behalf of” and that would solve it. Mr. Chairman: Yes. Sen. Ramlogan SC: So, we will put “by or on behalf of”. [Interruption] So, we are putting “by or on behalf of”. Sen. Al-Rawi: Thank you. “standstill period”. ‘“standstill period’ means the period”—right now. Sen. Ramlogan SC: That is where we are at right now. Hon. Senator: Where is that? Sen. Prescott SC: Just after the solicitation document. Sen. Ramlogan SC: Yes, just after the solicitation document. Sen. Al-Rawi: ‘“standstill period’ means the period from the dispatch of a notice as required by section 35(2), during which a procuring entity cannot accept the successful submission and suppliers or contractors can challenge the decision so notified;” Is it only suppliers and contractors that can, in fact, only challenge? I thought that it was broader than that so that it would be persons. Sen. Ramlogan SC: But realistically who, you know— Sen. Al-Rawi: Okay, we can look at that in the definition later on. Sen. Young is just giving me a “lil” handout here, and we can come back to dispatch under clause 35(2); I have an observation there. Sen. Dr. Tewarie: We do not have any more lines in 4, Faris. Sen. Al-Rawi: Pardon? Sen. Dr. Tewarie: There are no more lines. Sen. Al-Rawi: No, we have some more here. [Interruption] We are nearly there. No, we have plenty time. Sen. Ramlogan SC: Can I just say—Chair, look, standstill period, rather than quibble on it later on. What we can do is that after the successful submission, delete the words, “and suppliers or contractors” and simply put, “can be challenged”, and that would be fine. So, it will now read, “during which a procuring entity cannot accept the successful submission and can be”— 304 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Mahabir: No. Sen. Ramlogan SC: Oh, sorry, sorry. It is good as is, sorry. I beg your pardon. Sen. Al-Rawi: I would come back to it on 35(2). Under “State-controlled enterprise”— Sen. Dr. Tewarie: But, we went through that five times already. Sen. Al-Rawi: No, Mr. Chairman told me to hold strain. [Interruption] He told me to come back to it. Drafter: Which definition are you on? Sen. Ramlogan SC: “State-controlled enterprise”. Sen. Al-Rawi: “State-controlled enterprise: “(b) a company incorporated under the laws of Trinidad and Tobago which is owned or controlled by a company…” Have we made the amendment to say, “a company incorporated elsewhere”? So, insofar as our consulate office in the United States of America, in Miami may be registered as a DBA—[Interruption] Sen. Ramlogan SC: No, but we discussed that and we said (c) would cover it. Sen. Al-Rawi: So, (c) covers that? “A body corporate or unincorporated entity”, so that means anywhere. Correct? Sen. Ramlogan SC: It is not only that, you know. Sen. Al-Rawi: But you support it directly or indirectly by public money. Sen. Ramlogan SC: By funds, the money. Sen. Al-Rawi: So, I am just asking for the record there, whether (c) is intended to cast a very wide net to cover all entities that are recipients of public money, correct? Sen. Ramlogan SC: You are looking at it through the wrong end of the lens. The issue is not whether it is incorporated, you know. The issue is whether it is supported directly or indirectly by public moneys, the source of funds. Sen. Al-Rawi: Right, so my question there, I understand that, but my restriction here, why I asked it that way, everybody—I have body corporate or unincorporated entity. Is a non-incorporated entity intended to include a person or individual? 305 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: Well, no. It would not include an individual. An individual is not a non-incorporated. No. Sen. Al-Rawi: Exactly. Sen. Maharaj: A state-controlled enterprise cannot be a person. Sen. Al-Rawi: And, insofar as I may have an individual who is receiving a significant amount of public money. Sen. Dr. Mahabir: Then you would not be a state-controlled enterprise. Sen. Ramlogan SC: No, then you would not be a state-controlled enterprise. Sen. Al-Rawi: Okay, state-controlled enterprise means any entity that receives things in relation to it. Sen. Ramlogan SC: Faris, that would not arise under this definition for state controlled enterprise. Sen. Al-Rawi: No, but AG, the reason I have raised it is because we narrowed it down in the other section to remove the mischief of casting too wide a net. So, I am trying to figure out now how we achieve the balance, having restricted the random individual being caught by a wide net, which— Sen. Ahmed: [Inaudible]—wide net.

Sen. Ramlogan SC: I think this is fine, Chair. We are happy with this as is. Sen. Al-Rawi: Sorry, Sen. Ahmed had a comment to me? Sen. G. Singh: She said she is praying for your soul. Sen. Al-Rawi: Sorry? Sen. Maharaj: She found your argument a little too wide. Sen. Al-Rawi: Okay, well, I have observed her drafting laws many times in my life so I am interested to hear her points of view. Sen. Maharaj: She has a point of view. Sen. Al-Rawi: Yes, okay. Mr. Chairman: All right, is that— Sen. Al-Rawi: No, Sir. Sen. Dr. Mahabir: So, we are good with “State-controlled enterprise”? 306 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Hon. Senator: Yes. Sen. Ramlogan SC: Yes, Faris. Sen. Al-Rawi: Under the definition of submission: ‘“submission’ means a tender, a proposal, an offer, a quotation or a bid referred to collectively or generically, including, where the context so requires, an initial or indicative submission;”. Did we want to capture any other communication designed to advance a procurement process? Sen. Ramlogan SC: No. Sen. Al-Rawi: Why. Sen. Ramlogan SC: Because we are satisfied with what we have captured here. It is wide enough and quite justified, and it is consistent with the policy of the Government with respect to this legislation. Sen. Prescott SC: May I just hear the language suggested by Sen. Al-Rawi, again? Sen. Al-Rawi: I was wondering whether— Sen. Ramlogan SC: He did not make a suggestion. Sen. Al-Rawi: I did, I did. Sen. G. Singh: He just read the Bill. Sen. Al-Rawi: No, I said, if you were listening Sen. Singh, any communication designed to advance a procurement process. Guys, we cannot make law and be upset about sitting down to make the law, you know. This is the process of law making, so you cannot get on this antsy—I find it disrespectful Sen. Singh. Sen. G. Singh: No, I am always respectful— Sen. Robinson-Regis: Mr. Chairman, [Laughter and interruption] Mr. Chairman, please! If I may, could I just indicate that quite recently in one of the matters that the Attorney General spoke about on a previous occasion—I think it was the section 34 matter—the court cautioned the Parliament with regard to the time it takes to make law, that we must be careful in the law-making process. So, despite the fact that it may seem a bit problematic to some people that Sen. Al- Rawi is being so meticulous, the object is to make the best law for the people of Trinidad and Tobago, and given the fact that this piece of legislation will be coming into force by proclamation, I really do not think Senators should be so upset— 307 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ahmed: Sensitive. Sen. Robinson-Regis: It appears that way to us on this side. Sen. Ramlogan SC: No, nobody is— Sen. Robinson-Regis: Sen. Al-Rawi is being meticulous in ensuring that we do not find ourselves before the court because of bad legislation. So, I would really appreciate if we on this side are given an opportunity to express our concerns. [Desk thumping] Sen. Ramlogan SC: Well, no one is upset, and any meticulousness is appreciated. I think the concern is with any tedious repetition of— 7.30 p.m. Sen. Al-Rawi: It would, definitely, be tedious, AG, because you have had the amendments on your lap. Mr. Chairman: Hon. Senators, I propose that we end that discussion. I think we understand what—[Desk thumping] Sen. Al-Rawi: So, the question is the consideration, Mr. Chairman, of any communication? Mr. Chairman: Yes, I understand. Can we proceed with the particular proposal you are making? Sen. Al-Rawi: Yes, thank you for your support, Mr. Chairman. Any communication designed to advance or relate to a procurement process? The AG has answered that? Sen. Ramlogan SC: Correct. Sen. Al-Rawi: If other Senators have a point of view, I am just stating my position for the record. He says he does not want to change it. Mr. Chairman: Sen. Prescott, you had your light on. Sen. Prescott SC: I was hoping that Sen. Al-Rawi would expand on his thinking a bit so that I could grasp what he wanted to include. Sen. Al-Rawi: Well, I was concerned that “a tender, a proposal, an offer, a quotation or a bid” are restrictive. I was wondering whether we wanted to catch all communications designed to advance a procurement process. In other words then, something which, on the face of it, may disclaim an advancement of the process but which may actually effect it. 308 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: No, the reason I am saying that it is not necessary is because you really have certain milestones in the procurement process that are legally recognizable. These critical junctures, we have captured here: “a tender, a proposal, an offer, a quotation or a bid”. Now, any time you go in-between those, then you are introducing grey areas in the law that fall into the practical administration of the procurement process and you would bog yourself down in court. So, by focusing on the relevant milestones that are already legally recognizable and are known to us, I think that is where the submission and the definition rest. Mr. Chairman: The word “proposal” seems, to me, to be very wide. Sen. Ramlogan SC: Yes, very wide. Mr. Chairman: And, therefore, would encompass any manner of submissions. Sen. Young: If I may make an enquiry, through you—because I know of a practical process that is taking place where the use of RFPs—so, would an RFP, a request, fall under the definition in the proposal? Mr. Chairman: It is a proposal. Sen. Maharaj: An RFP is a proposal, a request for proposal, so it would fall under this definition. [Interruption] Sen. Young: Not necessarily. [Interruption] Not necessarily. Sen. Al-Rawi: An RFP is definitely a request. It is the request for the proposal met by a proposal. Sen. Maharaj: That is where you all have been going wrong. So when you submit it, you submit a proposal which is the submission here. Sen. Al-Rawi: No, but the request, Sen. Maharaj, is not the proposal. Sen. Maharaj: No, but when you respond to the request, you respond to the proposal. Sen. Al-Rawi: No, but the request if the thing that we— Mr. Chairman: If I might point out, the definition here is intended to be coming from the contractor, supplier or service provider— Sen. Ramlogan SC: That is correct, it is a submission. Mr. Chairman: —not from the procuring entity. 309 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: Yes. Mr. Chairman: That is why it is reflective of where it is coming from as opposed to where it is going. Sen. Al-Rawi: Mr. Chairman, may I take us next to the definition of supplier? “‘supplier’ or ‘contractor’ means, according to the context, any party or potential party to procurement proceedings with a procuring entity;” Would it be beneficial to strike “procuring entity” and include “public body”? Sen. Ramlogan SC: No, but “procuring entity”, when you look at the definition, I mean, you know—[Interruption] No, no Chair. Sen. Al-Rawi: Then I come back to the question as to why we amended “public-private partnership agreement” to strike “procuring entity” and put “public body”. What is the consistency in the logic there? Sen. Ramlogan SC: We dealt with that already extensively, man. Sen. Al-Rawi: No, I am dealing with consistency. If you have dealt with that already then so be it; you have dealt with “public-private partnership agreement”, great. Let us look, now, at “supplier” or “contractor”. I am asking, insofar as there is a distinction between the use of “public body” and “procuring entity”, whether you wanted to be broader by using “public body” as opposed to “procuring entity”? Sen. Ramlogan SC: No, because this is consistent with the scheme of the legislation. Sen. Al-Rawi: Which is? Sen. Ramlogan SC: The purpose of the legislation—this is a procurement bill and: “‘supplier’ or ‘contractor’ means, according to the context, any party or potential party to procurement proceedings with a procuring entity;” The point here is that the accent should remain with procuring entity because that is the person who procures the goods or services from the contractor. If you put a public body then, you know— Mr. Chairman: If I am to point to the definition of “procuring entity”— [Interruption] Sen. Al-Rawi: Mr. Chairman, I understand, you know. 310 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Drayton: Mr. Chairman, if I may, I thought that the “public body” is defined in this Bill for the purpose of capturing those who fall under the Bill. Mr. Chairman: Potentially. Sen. Drayton: Potentially. But the procuring entity is the entity that is engaged— Mr. Chairman: Correct. Sen. Drayton: —with suppliers and contractors. Mr. Chairman: Correct. Sen. Drayton: So, I see it here in the context of this definition, as procuring entity. Mr. Chairman: I thought so. Sen. Al-Rawi: From an intellectual point, my sole purpose in raising it here is insofar as it includes a potential party and, therefore, takes me closer to somebody who may not yet be in the definition and so I thought that “public body” captured the wider point. Mr. Chairman: If I may say this, if you look at the definition of “procuring entity”, it says— Sen. Al-Rawi: Mr. Chairman, I am aware. I am raising it in insofar as we have made amendments. Mr. Chairman: The two things are coterminous. I did not think the private placement was a peculiar category and, therefore, that is the reason it was restricted to “public body” is what I took it to mean. Sen. Al-Rawi: I would not detain us further, Mr. Chairman. Those are the comments that I had in relation to the definition section, subject only to coming back to the issue of exceptions in relation to this amendment clause. Mr. Chairman: When we are on the substantive provision. Sen. Al-Rawi: Thank you, Sir. Question put and agreed to. Clause 4, as amended, ordered to stand part of the Bill. Clause 5. Question proposed: That clause 5 stand part of the Bill. 311 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: We have an amendment as circulated: A. In proposed subparagraph (1)(b): Insert after the word “equity” the words “and public confidence”; B. In proposed subparagraph (1)(c): Insert after the word “development” the words “through the minimising of negative impact on the environment” C. Insert new subparagraph “(d) the disposal of public property” Yes, Sen. Drayton? Sen. Drayton: I have already, I think, commented on that. Mr. Chairman: Yes. Sen. Drayton: And that is that the Minister has included my definition, bringing public procurement in clause 5. The aspect that would be dealing with the environment is already defined under “sustainable procurement”. So, I am satisfied that my concerns here have been addressed. Mr. Chairman: Thank you. Sen. Al-Rawi: A question, Mr. Chairman. Mr. Chairman, subclause (2) of clause 5 proposes that: “(2) A public body shall carry out public procurement and the disposal of public property in a manner that is consistent with the objects of this Act.” Insofar as it is the board that should carry out disposal of public property in all circumstances, save where miscellaneous goods and other bits are dealt with, does that still stand correct? Sen. Ramlogan SC: Yes, it does because the board would be part of the public body. The board is part of the public body. Sen. Al-Rawi: Because the board is not defined in the public body section, eh? Sen. Ramlogan SC: I know, but the board will be part of the public body. Sen. Al-Rawi: How? Sen. Dr. Tewarie: Because the board is a public body. Sen. Ramlogan SC: Yes. 312 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: And each public body carries out its own disposal. Sen. Al-Rawi: No, if you— Sen. Dr. Tewarie: All it does is report to the procurement— Sen. Al-Rawi: No, no, no, if we look at (h)— Sen. Dr. Edwards: Minister Tewarie, I just wanted to find out, can “public body” there be changed to “procuring entity”? That was my thing. I am not sure. Instead of it saying “A public body shall carry out”, can it say, “the procuring entity”? Or, would that be incorrect? Sen. Dr. Tewarie: No, I think it is better to say a “public body” shall carry— [Interruption] Sen. Ramlogan SC: Yes. Sen. Al-Rawi: Thank you, Mr. Chairman. Question put and agreed to. Clause 5, as amended, ordered to stand part of the Bill. Clause 6. Question proposed: That clause 6 stand part of the Bill. Sen. Al-Rawi: Mr. Chairman, I had a question in relation to subclause (2): “(2) Nothing in subsection (1) shall affect the rights of an innocent…party.” Sen. Ramlogan SC: Third party. Sen. Al-Rawi: I was hanging on the innocent party. Did we want to be more specific to categorize it in respect of the bona fide purchaser for value without notice? Sen. Ramlogan SC: No, but he would be an innocent third party in any event. Sen. Al-Rawi: That is my question. Sen. Ramlogan SC: He would be. In law, a bone fide purchaser for value without notice will be an innocent third party. Because the word “innocent” is the analogue of bone fide in that phrase. Sen. Prescott SC: Mr. Chairman, in a public procurement context, who is an innocent third party? Somebody who benefits from the services? Sen. Ramlogan SC: Sorry, what is that? I did not hear you. 313 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Prescott SC: In the public procurement context, who can be regarded as an innocent third party? Is it some involuntary beneficiary of a service? Sen. Ramlogan SC: Well, we do not know, which is why we want to leave it wide so that depending on the facts of the situation, the court will establish the innocence of the third party. Sen. Prescott SC: Is the emphasis on innocent or being a third party? Sen. Ramlogan SC: I think it is both. Sen. Prescott SC: Yes, we are found to be innocent? Mr. Chairman: Well, third party because he is not part of the contract that was the procurement process. Sen. Ramlogan SC: He is not a party to the contract. Sen. Prescott SC: He is external to the contract. Sen. Ramlogan SC: Yes. Mr. Chairman: And then “innocent” is because he was not aware of any particular bid rigging or whatever took place. Sen. Prescott SC: So, someone not engaged as a party in these proceedings. Mr. Chairman: Exactly. That is the first criteria he has to pass; first threshold. Sen. Prescott: So, am I leading up to a different form of language? Mr. Chairman: A different form of? Sen. Prescott SC: Of “languaging” it? Mr. Chairman: I do not know. It seems to capture what was intended, but if you want to make a proposal I am sure— Sen. Prescott SC: I am thinking aloud that someone external to the contract not engaged in the— Mr. Chairman: No, but I thought that is what third party meant. Sen. Ramlogan SC: The use of the words “third party” is precisely that. Mr. Chairman: I thought that— Sen. Prescott SC: And innocent is— Sen. Ramlogan SC: Yes. Innocent is important. 314 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: That is important because you can have someone external to the contract but they are not—[Interruption] Sen. Ramlogan SC: And not only that. You see, that phrase is fairly well established in the law as well. Sen. Prescott SC: Yes. I am fully aware of the—[Interruption] Sen. Ramlogan SC: I think we are okay with that, Mr. Chairman. Sen. Prescott SC: I will defer. Question put and agreed to. Clause 6 ordered to stand part of the Bill. Clause 7. Question proposed: That clause 7 stands part of the Bill. Mr. Chairman: There is an amendment by the hon. Minister: Delete subclause (2) and substitute the following subclauses: (2) To the extent that this Act conflicts with an obligation of the State under or arising out of the following: (a) a treaty or other form of agreement to which Trinidad and Tobago is a party with one or more States or entity within a State; (b) an agreement entered into by the Government of Trinidad and Tobago with an international financing institution; or (c) an agreement for technical or other cooperation between the Government of Trinidad and Tobago and the Government of a foreign State, the requirements of the treaty or agreement shall prevail except that the procurement of goods, works or services shall be governed by this Act and shall promote the socio-economic policies of Trinidad and Tobago and shall adhere to the objects of this Act. (3) A procuring entity engaged in procurement proceedings relating to a treaty or agreement referred to in subsection (2)(a) shall comply with section 29 and submit a report on such compliance to the Office. (4) The Office shall, within twenty-one days of receiving a report under subsection (3), forward a copy of the report to the Speaker who shall cause the report to be laid in Parliament at the earliest opportunity. 315 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: Mr. Chairman, there is a further amendment to insert 7(5) which we can discuss— Sen. Al-Rawi: You are adding a (5). Sen. Ramlogan SC: Yes. It is simply to say: “This Act does not apply to the procurement of legal services by public bodies.” Mr. Chairman: Can I get that down first, please? Sen. Ramlogan SC: I flagged it for us to discuss. Mr. Chairman: All right. Can I get it down so we could discuss it? It does not apply Sen. Ramlogan SC: “This Act does not apply to the procurement of legal services by public bodies.” Sen. Al-Rawi: Of legal services by public bodies? Sen. Ramlogan SC: Yes. Sen. Vieira: I do not agree with that. Sen. Ramlogan SC: If there is no agreement, I would not pursue it. Sen. G. Singh: We will withdraw that. Sen. Ramlogan SC: Sure. I was trying to assist—[Interruption] Sorry? Sen. Prescott SC: We need to come back to that. I think we need to give more mature consideration to that, greater consideration. It does not seem to be ready at this stage. Sen. Ramlogan SC: That is fine. It was in light of our discussions. Sen. Prescott SC: Yes, and I am thinking all the time, but I am not getting— Sen. Ramlogan SC: Cogitate and ponder. Sen. Al-Rawi: Mr. Chairman, we cannot rush this one. Hon. Minister, would you mind just articulating some of the thought behind subclause (2) for us please, so that we could get it clear? Sen. Dr. Tewarie: Yes. The original clause, as you can see from here, was to exclude, completely, the procurement of goods and services, government-to- government treaties, et cetera. There is nothing wrong with that approach and that has been validated by legal opinion, publicly expressed by people of strong legal credentials and with knowledge of procurement law. 316 Public Procurement Bill, 2014 Tuesday, June 10, 2014

However, the Joint Consultative Council, private sector civil society group, advocated very strongly for a restriction to this on the basis that government-to- government arrangements are inherently susceptible to lack of control and corrupt practices. They argued the case and, on the basis of that, we reached what I might call not so much a compromise, as a mutual appreciation of positions. 7.45 p.m. I think basically they understood that Governments could not concede their sovereign right to negotiate and engage other Governments in legal international arrangements. And we conceded that there is a legitimacy to subjecting the procurement process to the law of the land, which would be this law. And on the basis of that, a compromise was reached which led to this adjustment, if you want to call it that, amendment, and we are prepared to support this amendment as it is. Sen. Al-Rawi: Thank you, hon. Minister. I am concerned not to fetter any Government unduly, whilst also having transparency, et cetera, delicate balance being struck there. What I am concerned with here is the circumstance where, let us say, in dark days potentially in Trinidad and Tobago we are at the doors of an institution that says, “it is my way or the highway”. And we have the tail end of this subclause (2) which says: “…the requirements of the treaty or agreement shall prevail except that the procurement of goods, works or services”—meaning everything—“shall be governed by this Act and shall promote the socio-economic policies of Trinidad and Tobago and shall adhere to the objects of this Act.” This causes me some concern because I do not know if there is a situation of conflict that this provides any clarity. That is the first point. Secondly, from a policy point of view, I cannot see it—at least from our point of view—as objectionable to say that where the international arrangement or procurement procedure substantially conforms or is not in conflict with our laws, or it substantially meets the requirements of our laws that it should not apply in total—not with any exception—and that the only requirement that one could probably look for is that the requirement for reporting being made to the Parliament is complied with. So I am concerned that the language here causes a bit of difficulty, that: “…the requirements of the treaty or agreement shall prevail except that the procurement”—of everything, if I use another word—“shall be governed by this Act…” 317 Public Procurement Bill, 2014 Tuesday, June 10, 2014

What does that really mean? It must mean that the Act trumps it completely— Sen. Dr. Tewarie: On the business of procurement. Sen. Al-Rawi: Which is everything. Sen. Dr. Tewarie: Well, I do not know if it is everything, that is why I made the concession. Listen, this is something I thought long and hard about, because I, like you, do not feel that a Government should be fettered in the conduct of its business. A Government is a duly elected legitimate entity to govern a state, and I do not believe that they should be fettered. But the more I thought of it, and the changes in the world system, I think what this does is strengthen the sovereignty position of Trinidad and Tobago. Because what it does, it says to the international institutions, while we will comply with our international obligations and agreements and we honour them as a Government and a country, a state, in the international arena, we do have laws, we consider these laws important, and if you wish to do business in our country then you must abide by all laws. I think any serious multilateral institutions—and they generally are, and they generally are in tune with what is happening in the world system—will be accommodating of this position. And I do not think that there will be any conflict whatsoever.

Sen. Drayton: If I may, this Bill, by and large, conforms with the UNCITRAL Model Law of 2012. Sen. Dr. Tewarie: Yes, it does. Sen. Drayton: And when I look at various conventions or treaties we may have signed, and where we have these legal documents, in all instances there are broad guidelines that respect the laws of the jurisdiction, of local jurisdictions. So I really do not see why this amendment should conflict with any international treaty if we are producing what is good universal procurement law. Sen. Young: If I may add to that, Mr. Chairman, my understanding, as currently drafted and before us, is that you are now telling other Governments that understand when you are entering into a government-to-government arrangement, if you—the foreign sovereign Government—have in mind who it is from your country that you would like to utilize for the carrying-out of this contract, you cannot do that. The whole process now is subject to our procurement laws and our Act and we must go through that process. Sen. Dr. Tewarie: Yes. The answer is yes. 318 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Young: And you are saying that as a policy going forward, whilst I understand what you are saying, and the transparency, et cetera, of it—so as a policy going forward, we are now telling the world at large, if you want to do business, government to government with us you have to be—you are subject to this Act and that therefore you cannot choose who it is. If you have a group of people, there is a process, it must go through our process. Sen. Dr. Tewarie: And I think that that is an enlightened position which most Governments will take seriously into account. I want to tell you that in the case of the private sector, in Europe right now, there is a raging battle going on, in which countries are saying to companies, “do not come into our country to invest and ask us for every tax break under the sun and tell us you are giving us employment.” You have to be a corporate citizen in our country if you are investing. Hon. Senator: And you have to contribute. Sen. Dr. Tewarie: Right? And you have to contribute. Sen. Young: Well, I agree with that. Sen. Dr. Tewarie: And the foreign Governments must also understand, yes, you need to do business with them, you need to get the money from them— Sen. Young: Doing business in Trinidad, this is how it is. May I ask one last question? In drafting this, was there any other jurisdiction with similar policy provisions? Sen. Dr. Balgobin: Yes, there are many. So, I will say this. This is probably the most courageous inclusion in legislation that I have seen in Trinidad and Tobago [Desk thumping] for 20 years. So I do not have any difficulty with this at all, because while the point is valid that you do not wish to fetter the State— [Interruption] Sen. Dr. Tewarie: Yes. Sen. Dr. Balgobin:—it acknowledges implicitly that the State spends public money; the State does not get money just like that, it is the people’s money— Sen. Dr. Tewarie: And the taxpayers’ pay it back. Sen. Dr. Balgobin: Well that is it. It is the public through taxes that has to pay whatever obligations the State enters into on our behalf. So, I do not think that it—I do not think it tests our sovereignty at all, and I would say especially in response to Sen. Young’s point, there are several jurisdictions particularly in developed economies—[Interruption] Sen. Dr. Tewarie: That is right. 319 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Balgobin:—where there are policy positions that say you must buy local. And the issue that is raging in Europe now is where people are domiciling companies in some European economies for tax breaks and they pay no—and of course this has caused a big problem for Google and Starbucks and so on. So, I do not have any difficulty with this. What I was really seeking is the explicit clarity that this means you have to or you are encouraging people to buy locally. And I am satisfied with that. Sen. Dr. Tewarie: Thank you. Mr. Chairman: Sen. Dr. Mahabir. Sen. Dr. Mahabir: Mr. Chairman, I do have concerns. The concern is that are we really fettering or unfettering the State? You see at some time we have to make provisions for the fact that the State may be in dire need of resources, not now, but certainly at some time. We may be in need of the World Bank’s resources, IMF’s resources, Caribbean Development Bank’s resources, IDB and the multilateral lending institutions. Now, the terms and conditions of these loans are very clearly defined by the multilaterals, in that if you want to access the resources, and it is true, we must repay them, Mr. Chairman, but the fact is they are providing these resources to us at a time of need and also they are providing them at interest rates which are normally much less than market interest rates. And we do make the concession that the terms and conditions of the loan will include their own procurement procedures which will involve, in general, not only our laws, but the fact that since other countries have contributed to the lending pool, then their suppliers would be made available to actually bid for the contracts which are consistent with the loan that we are borrowing. And I am simply enquiring of the Government, whether the Government is satisfied that if the lending agency says that you are not complying with our requirements but you are complying with your own, that the Government is quite prepared to walk away from these concessional loans and then to avail itself only of expensive market borrowing. So I think I need to get a position from the Government on that, because I think if we do not, Mr. Chairman, we are going to fetter the hands of the Minister of Finance and the Economy, unnecessarily, sometime in the future, if we do need to borrow from these institutions and they tell us that we need to comply with their terms and conditions. Mr. Chairman: I would say two things, Dr. Mahabir. If the country were in such dire straits at a particular point in time, I would think that we would come back to this Parliament—[Crosstalk] if I may, and it is this Parliament that will 320 Public Procurement Bill, 2014 Tuesday, June 10, 2014 carve out the exception. I will also say one other thing. I would imagine that the regulator may in fact create, just as we are talking about a soft touch, he will create a touch which will encapsulate what this world body wanted. Sen. Al-Rawi: It cannot work. Sen. Drayton: Mr. Chairman, you know frankly, I cannot see any multinational agency disagreeing with the laws of a country, whose objective is to protect the public purse. As a matter of fact, this is exactly what multinational agencies have been insisting on. Mr. Chairman: In fact, what they may do is demand, I am not going to lend you any money unless you have good procurement procedure. I procure one entity, I provide one product, but the rest of the countries are doing what they like with their own money and asking me for soft money. Dr. Mahabir: But Chair, they have their own procedures. That is what we are talking about. Sen. Vieira: Chair, I agree with you 100 per cent. I support what Sen. Tewarie says and what Sen. Balgobin says. I believe that this strengthens our sovereignty, it does not hurt it. It supports it. I also want to say this is a clause that the civil society groups, not one, not two, all of them, felt, very, very strongly about; so strongly that they were prepared to jettison the entire Bill— Sen. Al-Rawi: No, no, we met with the civil society groups who expressed reservations otherwise, Anthony. Sen. Vieira: I think that this is a very courageous clause and I agree with all the other Senators. We need to keep it as is. Sen. Robinson-Regis: Mr. Chairman, having been a Minister of Planning and Development dealing with the IDB and CDB and so on, I would just like to ask the Minister, in reality, how do you deal with this clause as it relates to the multilateral agency? I think both of us have had that experience with these agencies and I would like you to be clear on how this will affect that relationship. Sen. Dr. Tewarie: Well, right now the responsibilities that I have that relate to that have to do with the IDB and the CDB, because these are the development banks. I have some interface with the World Bank, but that is under the jurisdiction of the Minister of Finance and the Economy and I interface only insofar as I have matters that connect with them. What I can say to you is that the Inter-American Development Bank would have no problem working with enlightened procurement laws in Trinidad and Tobago, and that the IDB was part of the support requirement which led to the evolution of this Bill in the first place. 321 Public Procurement Bill, 2014 Tuesday, June 10, 2014

8.00 p.m. The second thing that I would say is that everything that you do with a multilateral bank is subject to negotiation and I believe in negotiation. You can get most of the things that are reasonable. I do not think you can get everything you want, but enlightened negotiations today facilitate an enlightened result in which there is give and take and, ultimately, you get most of the things that you want. Because at the end of the day, the bank does not want a win-lose situation in which the country, after negotiation, is unhappy and, secondly, you do not want a negotiation in which the bank is unhappy about you, and therefore, the way the rest of the business is conducted is unhealthy. So in that situation—my own feeling is—we have worked with the IDB before, even using the local tenders board—okay?—because we have made arrangements with them in which we can use it. We have worked with the IDB using their procurement process. That is to say, they simply give us the go-ahead to report to them and that is done through the local tenders board process. I feel that we have brought the discussion a long way and there is no need to worry about something like this, and I would believe that that is the way the world is going. Sen. Robinson-Regis: Could I just ask a question, Minister? In relation to the use of the local tenders board, if I am not mistaken, it is limited to certain types of procurement. Am I right? I mean, I do not know if things have changed. It has been quite some time since I was in your position—[Interruption] Sen. Dr. Tewarie: [Inaudible] Sen. Robinson-Regis: Yes—but I just do not want to put us in a position where we find difficulty when having to deal with these agencies. I am well aware that it is a negotiated process, but I just do not want us to be in a position of difficulty at the end of the day. Sen. Dr. Tewarie: I would not do anything to put this country in danger, and I would not do anything to chip at the sovereignty, needs, requirements and necessities of Trinidad and Tobago. I think that this decision that we have made to go this way, when I reflect on it, it puts Trinidad and Tobago in a much stronger position because it changes the beginning of the negotiation process. [Desk thumping] Sen. Dr. Balgobin: Our GDP per capita—sorry. Sen. Al-Rawi: Mr. Chairman, my concern with this clause is that it is prescribing that our laws shall always prevail in respect of arrangements with entities that may have pre-fixed matrices which we have to comply with. The fact 322 Public Procurement Bill, 2014 Tuesday, June 10, 2014 is, in those circumstances when our negotiating power is not as strong as it may be now, we may find ourselves having to come back to Parliament for a three- fifths majority which may not be given and the country may be in deep jeopardy. In those circumstances, there would be nothing wrong in allowing the procurement regulator the power to certify that the government-to-government or international finance house arrangement is in substantial conformity with our laws and to bless it from that perspective. But to rely upon the good graces of a Parliament 10 years from now agreeing, in circumstances where there may be great division in society, to circumstances which may prevent us from getting out of the lion’s den, I have great problems with that and I cannot say with certainty today, legislating for the future, that we can guarantee that an international agency, when we are in a less strong position, will give us what it is we desperately need at that moment in time without having us specifically amend the laws. My specific proposal in respect of this clause would be to allow the procurement regulator the circumstance or the option to certify that the international arrangement, et cetera, is in substantial conformity with our laws, and to have him report on the performance of the procurement to Parliament in conformity with these laws. But I am concerned that we are fettering the Government’s ability to negotiate contracts which the people of Trinidad and Tobago may very well need. Mr. Chairman: And that is precisely what I suggested. I thought there was a two-pronged process. One, you come before the Parliament again. Well, if a Parliament would not support you, it means that perhaps your position is not as well-founded as you or whoever the Government is at the time. But quite apart from that, we have been speaking that this is framework legislation, that the regulator will create the regulation, environment and guidelines. We have been saying that when it came to charitable organizations, one expected them to have a softer touch than it would have relative to somebody else. In that context, I would have thought that the regulator already has power within this to do exactly what you are saying without touching upon this specifically. Sen. Al-Rawi: Mr. Chairman, there are other aspects of constitutionality in this Bill that causes me concern. So, suppose the entity has a problem with the power of search and seizure without judicial watch or authority—[Interruption] Sen. Singh: You have a mix-up there. 323 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: No, no, no. Minister Singh, you are saying that the terms of this Bill must comply and prevail over the treaty. There are a lot of areas inside of this Bill that cause potential difficulty from a constitutional measure or from another arrangement structure, the reporting structures, the manner in which it goes. Are we going to tell an international agency, “Listen, for Trinidad and Tobago you need to scrap your entire reporting procedure and comply with our laws only”? Are they going to rewrite the entire EU Parliament regulation and the matrices that they have come up with just to meet our circumstances? That is the type of concern that I have. Mr. Chairman: That is what I would expect the regulator to actually address. Sen. Balgobin. Sen. Dr. Balgobin: May I ask a question because I am now thoroughly confused. So, let me see if I could just sort of define the zone of my confusion. We have a GDP per capita that puts us on the fringe of the developed world and, of course, no one is going to respect us unless we begin by respecting ourselves. Am I to understand that I am part of a discussion that holds in doubt the benefit of the dominance of Trinidad and Tobago law? Am I to understand that that is the discussion that I am in? Because that for me would be a discussion that we ought not to be having in the Parliament. Sen. Small: Agreed? Sen. Dr. Balgobin: Now, I have not seen anything in this legislation or in this measure that precludes us from purchasing any good or service from any foreign entity, including if they are domiciled in the country of a debt provider or a multilateral agency. I have not seen any such thing. What I have seen is us define a set of conditions that anybody doing work, providing a good or service in Trinidad and Tobago, using Trinidad and Tobago money, must conform to certain requirements. [Desk thumping] I would be concerned if I am party to a discussion about the advisability of the dominance of Trinidad and Tobago law as it pertains to the provision of a good or service in Trinidad and Tobago, using Trinidad and Tobago money. So I am seeking to understand whether that is the discussion that I am in, because if it is, I would much rather go get a cup of coffee. [Laughter] Mr. Chairman: I would allow the Minster to respond. Sen. Dr. Tewarie: Chair, I think the positions have been articulated from different quarters. I mean, the Government’s position is clear, which is that we declare a sovereignty not in a chest-beating way, but in a firm way and we are very strong on that and we are not prepared to concede that. 324 Public Procurement Bill, 2014 Tuesday, June 10, 2014

The second thing is that we also affirm that we will do nothing to fetter the ability of our Government to govern well and to negotiate on behalf of the country, or in fact any Government of this country in the making of a law insofar as it will bind Governments for some time. But I do want to say that we need to also appreciate that part of the process of procurement is development, and if we do not build into the strategy of negotiations with government-to-government entities the power of our law to facilitate the development process here at home, it makes no sense borrowing money that our taxpayers ultimately have to pay. And on that basis, I feel that we would like to proceed with this and call for a vote on this matter. Sen. Dr. Mahabir: Just to conclude and a final appeal to the Government. Because Mr. Chairman, it is in fact laudable that we would like to strengthen our sovereignty. I do not think anyone in this Chamber holds the view that we should compromise our sovereignty in any way, but I think economically we have to be realistic. Trinidad and Tobago has found itself in a structural adjustment programme in the mid-1980s. Trinidad and Tobago has gone to the Paris Club in 1992. It still is in existence. Whenever there is a Standard and Poor’s rating it says that we have not had the cleanest of records and, Trinidad and Tobago, in my mind, should not close itself off the opportunity–despite the high GDP that we have–of availing itself of the resources which are available in the international financial community. In that context, I want to raise to the Government this position before we put it to the vote: the requirements of the treaty or agreement shall prevail, except that the procurement of goods, works or services are not in conformity with the procurement laws of Trinidad and Tobago. If we could read it like this, Mr. President, what it says is the following: the requirements of the treaty or agreement shall prevail, except that the procurement of the goods, works or services are not in conformity with the procurement laws of Trinidad and Tobago. I think if we read the clause in this way, we will not have to return to Parliament, we will be giving the Minister of Finance and the Economy ample flexibility in the future, and we would be availing ourselves of international resources without in any way compromising the sovereignty of the Republic of Trinidad and Tobago. Thank you. Sen. Al-Rawi: I wish to concur with that 100 per cent. 325 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Drayton: Mr. Chairman, I really do not see how this law cuts ourselves out from availing ourselves of resources from anywhere. It is not just a question of a procurement law. Let us extend this. Are you saying that, you know, foreigners could come here and operate outside of the labour laws—[Interruption] Sen. Dr. Tewarie: No. Sen. Drayton:—outside of the financial regulations? It is not just a question of the procurement law. So I do not understand the argument that our law should not prevail. It is the law of the land. Sen. Dr. Tewarie: Chair, I also want to add that—I did not mention it when Sen. Camille Robinson-Regis raised it, but I also deal with the European Union and I do not think that this will cause a problem at all, and we have had opportunity to deal with other matters of procurement with them. Sen. Prescott SC: Chair, may I make an intervention? Is it the view of the Government, the Minister and/or the Attorney General that the procurement of goods referred to here in the subclause, applies to goods and services that are procured outside of Trinidad and Tobago? Sen. Dr. Tewarie: What is your question? Sen. Prescott SC: Is it your view that procurement here of goods, works and services refers to goods, works and services that are procured outside of Trinidad and Tobago? Sen. Dr. Tewarie: It would be international. Sen. Ramlogan SC: It would. The answer is, yes. Sen. Prescott SC: It does not strike me that it is clear, that that is what we are talking about. Sen. Dr. Tewarie: No, it would be international. Sen. Ramlogan SC: It would because, you see, it says it does not limit it, except that the procurement of goods, works or services. It does not say local goods, works or services. Sen. Prescott SC: So that if we were constructing a mission abroad, the procurement of the works and services necessary to establish the building, to do the construction would be subject to these laws? Sen. Ramlogan SC: It would, yes, so that one would expect that the regulator when issuing guidelines and regulations will take into account those specific situations. But what it would mean is that you cannot go and hand-pick somebody in China to build the embassy. 326 Public Procurement Bill, 2014 Tuesday, June 10, 2014

8.15 p.m. Sen. Prescott SC: You could not, but why should you not? Sen. Ramlogan SC: Sorry? Sen. Prescott SC: You are saying that you could not do that? Sen. Ramlogan SC: No, you would not be able to because the Act would not permit it unless there is a regulation to speak to it, but the idea would be that you will have to go through proper procurement process to engage a contractor to do it and in China. Sen. Al-Rawi: Minister, how do you propose to deal with an entity like the IDB that says either you comply with my rules or not? Sen. Dr. Tewarie: Nobody tells you that in today’s world. Mr. Chairman: Senators, I intend to put the question. Sen. Prescott SC: Chairman, may I just make some observations? Mr. Chairman: Sen. Prescott. Sen. Prescott SC: Yeah, these are off the central topic but they are equally important. May I ask you firstly to look at subclause 2(a) and say whether we should not have said “with one or more States or entities”? Sen. Ramlogan SC: “with one or more States or entities”? Sen. Young: If I may, Sen. Prescott, I was going to add “with one or more States or entity or entities within a State” as opposed to “or entities”. So then it captures the singular and the plural within a State. Sen. Prescott SC: Good. Sen. Dr. Tewarie: The entity is related to within a State, you know, so that would take care, let us say, of a local government in China. Sen. Young: No, I understand that, Minister, but I am suggesting you add “or entities”, so it is more than one within the State. Sen. Ramlogan SC: In drafting, the singular includes the plural so that is why—yeah. Sen. Prescott SC: Very well, accept the advice that you have. In (c) we speak of: “an agreement for technical or other cooperation between the Government of Trinidad and Tobago and the Government of a foreign State,” And I do not remember the term now, but what do we describe as a foreign State? 327 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: A State that is not yours. Sen. Dr. Tewarie: A State that governs itself. Sen. Prescott SC: And other States. Sen. Ramlogan SC: Oh, I see what you mean. Sen. Prescott SC: I mean, we are a foreign State. Sen. Dr. Tewarie: No, no; to us, we are not foreign. Sen. Prescott SC: May I suggest that the word “other” be used instead of “foreign”? Sen. Ramlogan SC: Yeah, that might be—you know. [Discussion with CPC] All right. The advice is to leave it as is. Sen. Prescott SC: I accept whatever advice you have, Sir. Sen. Ramlogan SC: I understand what you are saying but whether it is “other” or “foreign”. Mr. Chairman: Hon. Senators—sorry. Sen. Prescott, finally. Sen. Prescott SC: Finally, if we go down to the last two lines, you say: “…the procurement…shall promote the socio-economic policies of Trinidad and Tobago…” Now, is that an obligation on the part of the procuring entity? Sen. Ramlogan SC: Yes, it would be. Sen. Prescott SC: That he promotes the socio-economic policies of Trinidad and Tobago? Sen. Ramlogan SC: It means that the procurement process would have to be consistent with the promotion of socio-economic policies of Trinidad and Tobago. Are you concerned about how you are going to define that; how you are going to know what that is? Sen. Prescott SC: Yes, I am concerned about how you operationalize promoting the socio-economic policies. Is that a statement you make in a contract and that ends the matter? Sen. Dr. Tewarie: No, there are two levels. One is the negotiation itself where that becomes part of the negotiation and therefore affects the treaty or the agreement; and the second thing is in the procurement process itself, the regulations will determine that in these arrangements, what kind of percentages you are looking at in terms of local industry, local content, et cetera. 328 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: So it is tied to a formula apparently. Sen. Prescott SC: So the question is whether we need to say “shall promote” as opposed to “shall not be inconsistent with”. Sen. Dr. Tewarie: No, the idea is to promote. I said that in my beginning. Sen. Prescott SC: You want an active promotion. Sen. Dr. Tewarie: Yes. Sen. Ramlogan SC: You want the positive. You want the proactive and positive rather than the—[Interruption] Mr. Chairman: The subject here is procurement. “…the procurement…shall promote the socio-economic…” Sen. Prescott SC: Yeah, I was just wondering whether the policy of the Government is to insist that there must be a positive act on the part of the procurer to promote or he must not do anything that is inconsistent with the policies. Sen. Ramlogan SC: Well, I think it might be a bit of both. You could phrase it in the negative or the positive. Sen. Prescott SC: Your preference is that he is obliged to promote? Sen. Ramlogan SC: Yes. Sen. Dr. Tewarie: Yes. Sen. Ramlogan SC: Which is another way of saying what you have just said which is that he must not do anything inconsistent with it. Sen. Prescott SC: I can see a distinction but you prefer promote? Sen. Ramlogan SC: But I hear you. Yeah, the positive rather the negative. Mr. Chairman: Hon. Senators, the question is— Sen. Al-Rawi: Wait, the question is whether Sen. Mahabir’s suggestion has been rejected? Mr. Chairman: That is what I understood. I am about to put the question, we will find out. Sen. Dr. Tewarie: I mean, I appreciate it and I understand the sentiment. Question put. 329 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: No, just for the noting to the record, Mr. Chairman. Sen. Cudjoe: Division. Mr. Chairman: You have a division? Sen. Ramlogan SC: Yes, a call for a division. The Committee divided: Ayes 23 Noes 6 AYES Singh, G. Coudray, Ms. M. Ramlogan SC, A. Howai, L. Griffith, G. Hadeed, G. George, E. Karim, F. Tewarie, Dr. B. Bharath, V. Moheni, E. Lambert, J. Maharaj, D. Ahmed, Mrs. R. Ramnarine, K. Drayton, Mrs. H. Balgobin, Dr. R. Wheeler, Dr. V. Prescott SC, E. Vieira, A. Small, D. Abdul-Mohan, Rev. J. Edwards, Dr. A. 330 Public Procurement Bill, 2014 Tuesday, June 10, 2014

NOES Robinson-Regis, Mrs. C. Al-Rawi, F. Baldeo-Chadeesingh, Mrs. D. Cudjoe, Miss S. Young, S. Mahabir, Dr. D. Question agreed to. Clause 7, as amended, ordered to stand part of the Bill. Clauses 8 and 9 ordered to stand part of the Bill. Sen. Al-Rawi: Mr. Chairman, I have quite a lot to say in relation to all the clauses of this Bill, but I fear that I may miss a minute if I were to rise at all. Is the committee considering the privileges of Members in taking a short break at any moment? Hon. Senators: No, no, no. [Crosstalk] Sen. Al-Rawi: No, Mr. Chairman, heeding the advice of no less a person than His Excellency the President, I am concerned— Mr. Chairman: Senator, you cannot raise His Excellency’s name into this debate, you know. Sen. Al-Rawi: Thank you, I should not raise his name; sure of his excellency the President of the Senate. Thank you. [Laughter] But heeding the excellent advice of his excellency, the President of this Senate—[Interruption] Mr. Chairman: What I am to tell, hon. Senators, I have been informed that dinner is here so that if you wish to depart and have dinner, you may do so at any time. Sen. Al-Rawi: Mr. Chairman, as a committee, I am constrained to request that we break, and I say so on the basis that I would like to give my full attention to every clause of this Bill. I do not think that this is negotiable per se, Mr. Chairman, it is a matter of privilege. Sen. Maharaj: Mr. Chairman, it seems that the Opposition’s entire contribution rests on Sen. Faris Al-Rawi and if he departs the Chamber, they will collapse. 331 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Minister, every Member—[Interruption] Sen. Al-Rawi: Every Member is entitled to the privilege of debate and participation. Come on man. [Desk thumping] Sen. Robinson-Regis: Mr. Chairman—[Interruption] Sen. Al-Rawi: Nonsense, no. Sen. Dr. Tewarie: If Sen. Al-Rawi had not been so meticulous— [Interruption] Sen. Al-Rawi: Mr. Chairman, I object, I object. Sen. Robinson-Regis: No, no, we object to that. Mr. Chairman. Sen. Al-Rawi: I object strenuously to that. Sen. Dr. Tewarie:—in the period preceding clause 7, we might have advanced much more strenuously. Sen. Robinson-Regis: No, he has his right. Sen. Al-Rawi: Mr. Chairman, there is no shortcut way to do the law. Sen. Robinson-Regis: Exactly. That is his right, Mr. Chairman. Sen. Al-Rawi: I am asking for a break for 10 minutes. This is not the way to handle the making of laws. Sen. Maharaj: How much time was spent on the discussion of the debate? Sen. Al-Rawi: What is wrong? [Continuous interruption and crosstalk] Mr. Chairman: Hon. Senators, I propose to take a break for 10 minutes. We will be back here at 8.35 p.m. 8.25 p.m.: Committee suspended. 8.40 p.m.: Committee resumed. Clause 10. Question proposed: That clause 10 stand part of the Bill. Sen. Ramlogan SC: Mr. Chairman, I beg to move that clause 10 be amended as circulated: In subclause (1)- 332 Public Procurement Bill, 2014 Tuesday, June 10, 2014

(a) delete the word “seven” and substitute the words “no less than eight and no more than eleven”; (b) delete paragraph (h) and substitute the following paragraph: “(h) no more than four members who represent the interests of the community, women, youth, religion or civil society.”. Sen. Drayton: Mr. Chairman, I beg to move the following amendments: A. In subparagraph (1): insert after the word “University” the word “procurement”. Mr. Chairman: You have a further amendment? Sen. Drayton: Yes, I have a couple of amendments which had been discussed. Under the procurement regulator, the qualifications, I thought the most obvious thing was left out, the most obvious qualification. Sen. Ramlogan SC: We will insert it before “finance procurement”. Sen. Drayton: Yes. Sen. Ramlogan SC: So, a degree from an accredited university, in a field relating to procurement, finance. That? Sen. Drayton: Yes. Mr. Chairman: I am not sure, sorry, line 4—[Interruption] Sen. Drayton: Line 4? Sen. Ramlogan SC: No, it is in line 3, 10(a)(i): possess a degree from an accredited university in a field related to procurement, then finance. Mr. Chairman: Oh, I see. Sen. Prescott SC: Chair, may I make an intervention, please? In (f)— [Interruption] Mr. Chairman: In (f)? Sen. Prescott SC:—that the attorney-at-law should be an attorney-at-law of at least 10 years standing. Sen. Ramlogan SC: Sorry? Sen. Prescott SC: That the attorney-at-law at (f) should be an attorney-at-law with at least 10 years’ standing. 333 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: 10 years’, yes, (f) we change 5 to 10. Sen. Prescott SC: And further in relation to (b)—(f), that the relevant professional bodies should be engaged or asked to endorse the candidate. Sen. Ramlogan SC: Well, I do not think we need to put that in the substantive law. Sen. Prescott SC: I should like to see it somewhere. Sen. Ramlogan SC: Yeah, maybe in the—you know—[Interruption] Sen. Young: Mr. Chairman, through you, if I may. As an alternative suggestion to that of Sen. Prescott, I would like to propose that with respect to 10(1)(b)—(e), we follow what has just been agreed to at (f). And for all of those persons—that is, “a member with qualifications and experience”—in accounting, experience in finance, business management, civil engineering of at least 10 years’ standing—because I think this is an important body and we should ensure that all of those professionals have the equal level of experience as we are requiring from attorneys-at-law. Sen. Ramlogan SC: Chair, I think the attorney is a unique person on that board, but we would like to leave it as is for the rest. You might get the right basket and blend of expertise, but you may not necessarily get it with everyone—10. But, Chair, I just wanted a further amendment to 10 (1)(a)(ii): and who shall be Chairman and CEO, and Chief Executive Officer. Mr. Chairman: The Chairman and Chief Executive Officer, all right. Is that caps or lower case? Mr. Macintyre: Initial caps. Mr. Chairman: Initial caps. Sen. Young: Chairman, before—well, it has been proposed, and I am sure it will pass, but current governance thinking is that the same person should not hold the position of Chairman and the CEO. I just put that on record, but at the end of the day you all will make the decision. Sen. Dr. Tewarie: In this particular case, I think we will have to make an exception because you need a powerful head of procurement. Sen. Young: But you also provided that you are now curtailing the amount of time the person can be a CEO because, of course, we go on to say that they can only be there for X number of years and a next term. So for continuity of the body, I am just cautioning and we do not have it with the EMA or any other entity; you have a Chairman separate to the CEO. 334 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: Mr. Chairman, may I enquire of the Minister, an explanation in relation to 10(1) specifically, the fact that the office shall be managed by a board. I find it rather peculiar that a board would be managing an entity. Boards usually prescribe the policy for entities and are usually managed by a CEO. In fact, the Attorney General’s inclusion of the Chairman acting as CEO, confirms the suspicion that I had as to the dichotomy—as to difficulties in having the Chairman act as CEO as well. I am concerned as well as to whether these people are full-time or part-time in their operations, if we are going to prescribe management. Sen. Dr. Tewarie: I mean, let us not get into a discussion about the Bill again, eh. We had a whole debate on the Bill, but I mean, clearly, the board has the power, the authority, the means under this Bill, to select on a meritocratic basis all the employees, but the position of—first of all, establishing the entity; then, secondly, of having the strength that you require for the leader of that institution in the first round, was something that was raised, and is something that we need to take into consideration seriously. So the board will run the place, but the Executive Chairman—essentially, Chairman and CEO—will, in fact, be the procurement regulator. He will have a board, not necessarily of executive officers because these people will have other professions, but he will also have a staff which will be recruited to do, you know, all the work. Sen. G. Singh: So the day-to-day functions are taken care of by the procurement regulator in his capacity. Sen. Al-Rawi: Sure. I picked up with that. I am looking at the operational success of an institute like this. The first thing that concerns me with respect to prescribing management for the board—I except out the character who is going to assume the office as procurement regulator; I understand that aspect—but what concerns me in there, insofar as we have a limited number of persons inside of here, I have seen legislation drafted where alternates are also picked in advance, which provide for any difficulties with quorum, with somebody falling out, et cetera. So if His Excellency the President were to be considering not only a nominee to this board, but also an alternate to this board, it would allow for an easy management cycle. [Crosstalk] Well, AG, you are raising—if you permit me to lip-read a little bit, you are raising the very concern that I have for liability. So the point, Mr. Chairman, is that I am concerned about the fallout procedures when somebody moves, out particularly when— 335 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: Faris, it is a point I raised as well. I mean, I am advised that this is the normal, usual language they use when drafting, but it does not mean that they are responsible for the day-to-day management of the board. It is elsewhere in other legislation, and that is how they draft it, but—[Interruption] Mr. Chairman: Can we use “administered”, maybe? Sen. Al-Rawi: Governed. Sen. Dr. Tewarie: Governed, yes. Governed, we can use. Sen. Al-Rawi: Governed, in my view, is by far a better term. Management causes me real concern in terms of liability. Sen. Ramlogan SC: Well, let us change “managed” to “governed”. We will change “managed” to “governed”. So we could move on. Mr. Chairman: And Sen. Drayton’s—[Interruption] Sen. Drayton: I simply want to mention that I have an amendment suggesting that the legislation empower the regulator to handle the day-to-day management and administration of the office, which is very similar to the arrangements with respect to the Central Bank Governor as regulator. Mr. Chairman: And that is lower down. Sen. Drayton: That is lower down; that is in 11. So there are two alternatives, either the regulator be made or we make note that he is the CEO as well, or the law simply empowers him to handle the day-to-day affairs of the office, similar to what is done under the Central Bank. Sen. Al-Rawi: I think that that is a very laudable suggestion. Mr. Chairman, I also wanted to point out the language in subclause (a)(i). As it is set out here, the procurement regulator hereinafter referred to as the regulator who shall possess a degree from an accredited university in a field related to finance, economics— [Interruption] Sen. Dr. Tewarie: Add “procurement” there. Sen. Ramlogan SC: Well, put in procurement when—[Interruption] Sen. Al-Rawi: Right, okay, so procurement. Or law or a degree from an accredited university in accounting or equivalent professional qualifications in accounting. It seems to be a little bit inelegantly drafted. The use of “or law or” inside of there, causes me a little concern. I was also concerned and I— [Interruption] 336 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: Well, take out the “or” and put a comma, “nah”. Sen. Al-Rawi: Yes, I think it would read better that way. Mr. Chairman: But I did not quite catch what was—[Interruption] Sen. Al-Rawi: The first “or” in line one, after—[Interruption] Sen. Dr. Tewarie: After economics, delete “or”, follow economics with a comma. Sen. Al-Rawi: And then, Mr. Chairman, I was wondering about the option for alternate appointments inside of here. And I say that when we come later down in the Bill, to the fact that the board’s constitution for emergency meetings, et cetera, is not provided. Only the Chairman and Deputy Chairman can affix the seal and give judicial authority for that. Sen. Ramlogan SC: Having regard to the nature, the function of this entity— [Interruption] Sen. Al-Rawi: But that is exactly why, because—[Interruption] Sen. Ramlogan SC: I know, I know, but you see, we have to err on the side of caution in this one. I understand what you are saying, but we do not as a matter of policy wish to have any alternates. We did discuss this matter. Sen. Al-Rawi: Okay. Then I will raise the other concerns when we come down to—[Interruption] Sen. Ramlogan SC: I mean, if you have a situation where both the Chairman and the Deputy Chairman are unavailable or something, then they might have to appoint someone to act or something. [Interruption] Sen. Al-Rawi: You see, I will make—[Interruption] correct. We will make those amendments/proposals later on. Subclause 3? Sorry, Sen. Cudjoe? Sen. Cudjoe: I have a question in (a)(1), that says: possess a degree from an accredited university. That degree could be any degree, like an associate’s degree? [Interruption] No, no, no, the level of degree, associate’s degree, or a bachelor’s degree. What kind of degree are we looking for? Sen. Ramlogan SC: A degree, a university degree. Sen. Cudjoe: So, we are okay with somebody having an associate’s degree as the requisite one? Sen. Ramlogan SC: No, no, no; a degree. Look, I mean, hardly likely you are going to get somebody with an associate’s degree being chosen for this job. Let us be reasonable, you know, hardly likely. 337 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Minister, I found the taking out of the “or”—[Interruption] Sen. Ramlogan SC: Yes, I think it should be there. You have to leave that in. It does not read right. Sen. Al-Rawi: So is it the intention—you see, how I would have broken this down to make some sense, would have been to use some subcategories. So I would have had an (a), (b) and (c). So is it intended—if we can get the intention, maybe we could get the wording right. Is it intended that you should either have a degree from an accredited university in a field relating to finance, procurement, economics, or you can have a degree in law, or you can have a degree from an accredited university or other professional equivalent? So would somebody who is just a lawyer satisfy? This is my question because that is what it says. Mr. Chairman: If he is a lawyer with a degree—[Interruption] Sen. Dr. Tewarie: 10 years’ experience. Sen. Al-Rawi: No, no, no, procurement regulator (a)(i)—[Interruption] Sen. Ramlogan SC: All right, listen, I understand the source of the problem here. Chair, we have unnecessarily repeated “or a degree from an accredited university”. So what you need to put is, it should read: possess a degree from an accredited university in a field relating to procurement, finance, economics, law, accounting or an equivalent professional qualification in accounting. Sen. Al-Rawi: Exactly. Sen. Ramlogan SC: All right, or an equivalent qualification—singular—in accounting, and that would solve the problem. So: possess a degree from an accredited university in a field relating to procurement, finance, economics, law, accounting or an equivalent professional qualification in accounting. Mr. Chairman: I got you. Sen. Al-Rawi: Much better, thank you. May I also invite attention to subclause (3)? The names of all members of the board as first constituted and every change in the membership of the board thereafter, shall be published in the Gazette. Now, may I invite a publication as well into two newspapers or a newspaper of general circulation in Trinidad and Tobago because, I mean, who really buys the Gazette? Sen. Ramlogan SC: I will tell you what the problem—I mean—[Interruption] Sen. Al-Rawi: Remember it is a notice to the public. The mischief is to make sure the public knows about it. 338 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: I know. I know. But, Chair, I have a—you know, these days, you know, we spend a lot of money on putting out these adverts in the newspapers for these things sometimes. I notice them with increased frequency because we are passing laws and keep putting that. But the reality is that the last person appointed to the Integrity Commission, the President had a press release and it was well publicized. Normally, you would have some form of press release from the Office of the President when he makes appointments, and that quite frankly is, by and large, more conspicuously carried in the newspapers than an advert, which people tend not to read. So I mean, the Gazette, yes, but I am content to leave it there because we know—because of the nature of this appointment—there will be public knowledge about—[Interruption] Sen. Al-Rawi: I have raised this in the context of the planning Bill, Insurance Bill, Securities Bill, every piece of law that we are drafting right now, we have that because it is accepted that the Gazette is the least effective means of communication to the public at large. So if we are doing it, I mean, it is what, once every four years, or once every eight years? 8.55 p.m. Sen. Ramlogan SC: Well, all right, in the interest of time, we can put it in. [Laughter] Sen. Dr. Tewarie:—“shall be published including in the Gazette.” Sen. Ramlogan SC: “It shall be published in the Gazette and a daily newspaper.” [Crosstalk] Mr. Chairman:—circulated in Trinidad and Tobago. Sen. Prescott SC: Chair, in light of the introduction of the Chief Executive Officer in subclause 10(1), should we not look at the impact on clause 11? Sen. Ramlogan SC: Let us put 10 and get it out of the way. Mr. Chairman: I think that is what Sen. Drayton said. She had amendment to that clause that related to the executive powers and so on. Sen. Al-Rawi: And subclause (4), the last one for me of concern. I am concerned that the regulator and deputy chairman alone exercising the seal, the official seal, is a bit restrictive. Sen. Ramlogan SC: That is important. 339 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: I understand, but the circumstance of not having availability and having the secretary. Sen. Ramlogan SC: Well, we said that we will—I think Mr. Young made a very important point when we said that we look at it later on, if they are unavailable we will put a provision that if both the regulator and the deputy chairman are unavailabe or otherwise incapacitated then the remaining board— [Interruption] Sen. Al-Rawi: Not for calling the meeting. What I am looking at here is the affixation of a seal. Sen. Ramlogan SC: No, no, we are saying the remaining board will be able to elect from among themselves someone to act for the purpose of fulfilling that function. Sen. Al-Rawi: That is at meetings as opposed to the seal. I mean, I avoid— [Interruption] Sen. Ramlogan SC: No, but I am saying elect someone for the purpose of this function, affixing the seal. Sen. Al-Rawi: What I am saying is, if you were to include somebody—I mean the concept of a secretary acting is an important—[Interruption] Sen. Ramlogan SC: What is your proposal? Sen. Al-Rawi: I believe that there should be a person identified as a secretary to the board, because the secretary has to have responsibility. A board member can be appointed as a secretary or two other board members as the HDC Act, for instances has it. Sen. Ramlogan SC: “Leh we run with this nah.” Sen. Dr. Tewarie: This is not an HDC board, man, Faris. Sen. Al-Rawi: Yeah, but I am talking about affecting the work of the committee and stymieing it. [Crosstalk] It is by both; it is the regulator and the deputy chairman. So, the chairman and the deputy chairman must both do it. Sen. Ramlogan SC: Instead of saying both, can we say “or”? Sen. Prescott SC: No, no, I would much prefer both signatures. Sen. Ramlogan SC: Do you prefer both of them? Sen. Prescott SC: Always two. 340 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: The truth is you use the seal in very, very, limited circumstances. I cannot imagine circumstances in which the seal would be used; a deed for buying property. Sen. Ramlogan SC: Let us move on Chair. Sen. Al-Rawi: Actually, Mr. Chairman, quite the converse, the board is charged with the responsibility of disposing of public property for and on behalf of the State. That means that they are going to be exercising the use of that seal on a daily basis, potentially, yes. Sen. Singh: To do what? Sen. Al-Rawi: To dispose of the property. Sen. Ramlogan SC: Listen, out of an abundance of caution, if we put “or” instead of “and” I do not think it would harm us that much, you know, Elton. Sen. Prescott SC: One person has custody, if you like. Sen. Ramlogan SC: These are the chair and the deputy chair you are talking about. Sen. Al-Rawi: They have been vetted at the highest level possible. Sen. Ramlogan SC: I think we could run with that, to put “or”. You see, one person may be out of the country on vacation. Sen. Prescott SC: Maybe you may want to consider the regulator and one other board member. Sen. Al-Rawi: Or the regulator and two other board members if you do not trust them. Sen. Ramlogan SC: Just putting the regulator or the deputy chairman, that should be fine. Sen. Prescott SC: One person is not satisfactory, go with two. Mr. Chairman: I must confess usually when you apply a seal, you usually have, at least two people to witness the authentication, but you can say the deputy chairman or any other board member appointed by the board. Sen. Al-Rawi: Correct. That gives you the flexibility. I mean, why the deputy chairman? Once the regulator is there or the deputy chairman is there—you see, the point is, I do not want to stymie the work. They are charged with management. 341 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: We understand that Faris. We understand the problem, let us focus on the solution. So it is either the regulator—we have to have two persons you are saying, Elton. Hon. Senator: The regulator and the deputy chairman. Sen. Al-Rawi: The regulator or the deputy chairman and another. So it is two: the regulator or the deputy chairman and a board member so that they have two acting at all times. Sen. Ramlogan SC: Yes, that is correct. The regulator or the deputy chairman and any other board member. Sen. Al-Rawi: So, “(a)” would be the regulator; insert “or the deputy chairman” and then “(b)” would change to “any other member of the board.” Sen. Prescott SC: Can I just add a little burden to that? If we say the regulator or in his absence the deputy chairman. Sen. Al-Rawi: Yes. Sen. Prescott SC: So the deputy does not take it upon himself to act. Sen. Ramlogan SC: “The regulator or in his absence”—[Interruption] Sen. Prescott SC:—the deputy chairman and one other. Sen. Ramlogan SC: “The regulator or in his absence”—[Interruption] Sen. Prescott SC: You are putting that in parenthesis. Sen. Ramlogan SC: “and, any other member authorized by the board.” That is fine. Sen. Prescott SC: Thank you. Sen. Ramlogan SC: “I hope after all this yuh have tuh vote for this yuh know.” Sen. Prescott SC: I did not hear you—[Laughter] Mr. Chairman: So the question is that clause 10 be amended as circulated and further amended as read out. Sen. Al-Rawi: For clarity, Mr. Chairman, in 10(1) “managed” has been changed to “governed”. Mr. Chairman: Yes. 342 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: Thank you. Mr. Chairman: That is one that we read out. Question put and agreed to. Clause 10, as amended, ordered to stand part of the Bill. Clause 11. Question proposed: That clause 11 stand part of the Bill. Sen. Prescott SC: Mr. Chairman, I was saying that now that we have introduced the concept of the CEO, that separate office, unless he is ex officio CEO, the regulator has a four-year term—[Interruption] Hon. Senators: Seven. Sen. Prescott SC: Seven—the term of the CEO ought to be specified. I am sure it is not an ex officio position. Mr. Chairman: Well, I thought it was. Mr. Prescott SC: The regulator is a different individual in the law from the CEO. He is not ex officio CEO, he is CEO by contract or something. So one wonders what is his term. It could not possibly be the same as the regulator. Sen. Drayton: The amendment I suggested: B. In proposed sub-paragraph (2), delete and substitute the following: The Procurement Regulator shall be entrusted with the day to day management, administration, direction and control of the business of the Office with authority to act in the conduct of the business of the Office. The fact that we have to empower the regulator to carry out the day-to-day activities of the office, a suggestion was that if we make the CEO the regulator, the CEO also then is the same carrying out the day-to-day activities. I just wonder about a regular regulator carrying the title of chairman or having responsibility of chairman/regulator and additional title CEO. Why? Why not, you know, similar to the Central Bank how we empower the Governor. You establish an office that is governed by a board, and the law empowers the Governor to carry out the day-to- day activities of the Central Bank. Mr. Chairman: That is on page 2 of your amendment. Right? Sen. Drayton: Yes. So I have no objection if we want to also make him the CEO, but it would seem to me that we are just overburdening this one position with CEO, chairman, regulator. 343 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: We are prepared to consider that and take out the CEO, but we would have to delete that from the clause 10 we just—[Interruption] Mr. Chairman: Take out the Chief Executive Officer. Sen. Dr. Tewarie: Yes. Sen. Drayton: Should I go ahead with the other amendments, Chair? Sen. Ramlogan SC: No, no, one by one. Sen. Dr. Tewarie: Let us get this one. Mr. Chairman: So, the proposal is that you delete (2) which talks about not eligible for reappointment. Sen. Dr. Tewarie: No, no. We just add a clause. “The Procurement Regulator shall be entrusted with the day to day management, administration, direction and control of the business of the Office with authority to act…” Sen. Ramlogan SC: It is circulated Chair, and we would just remove the previous suggested amendment at 10(1). Mr. Chairman: So, this would be a new (3). Will it be 11(3)? Is that what you are proposing? Sen. Dr. Tewarie: Yes, 11(3). Mr. Chairman: And the next clause will become (4) and so on. So we are considering the clause as recommended by Sen. Drayton. Sen. Ramlogan SC: It should be 11(2). Mr. Chairman: Okay, fine. Sen. Dr. Tewarie: And then (2) would become (3). Mr. Chairman: Okay, fine. Sen. Ramlogan SC: Sen. Drayton’s circulated draft. Sen. Al-Rawi: Sorry, could I get the wording of the new (2) please? Mr. Chairman: We have it in her draft at the top. Sen. Al-Rawi: I see. Mr. Chairman: I am told it comes from the Central Bank. 344 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Young: Mr. Chairman, I would like to propose a slight amendment to that proposed by Sen. Drayton, and it is just the removal of “procurement”, because we referred to him or her at 11(1) as the regulator and I do not think we should go in the next subclause, and say “the procurement regulator”. Just say the regulator. Sen. Dr. Tewarie: That is fine. Mr. Chairman: So, we take out “procurement”. Shall we go on to the next subclause? Sen. Drayton: That one with respect to the deputy chairman has already been addressed in the Bill somewhere else. Mr. Chairman: So we are not pursuing that. Sen. Drayton: That is withdrawn. We are not pursuing that. Then where I suggested in the absence or inability of the procurement regulator, I think it was also stated in the Bill that the deputy chairman will perform those duties. If that is the case—[Crosstalk] Beg pardon? Sen. Al-Rawi: That is only for meetings. Sen. Ramlogan SC: We may need to expand it. Sen. Drayton: Well then we need to put in a subclause that: “In the event of absence or inability of the Regulator for whatever cause arising, the Office may appoint the Deputy Chairman to exercise the powers and functions of the Procurement Regulator;” Sen. Ramlogan SC: That is fine. Mr. Chairman: Just take out the word “procurement”. Sen. Young: If I may, Mr. Chairman. Sen. Ramlogan SC: Could we just get this one to make sure we have it? Mr. Chairman: It is on page 2, so leave out the word “procurement”. Sen. Young: Just so that we know what we are doing, that means, therefore, I suggest, that the deputy chairman will be a full-time employee, because you are not going to bring in a part-time now when the chair is on it right. Because you are now saying that if the chairman or the regulator is unable to carry out the day- to-day conduct of the business of the office, the deputy steps into his or her place, so you have to understand now that those are two full-time positions. 345 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: The answer is yes. Sen. Drayton: Similar to Central Bank again. Sen. Ramlogan SC: It would be like the deputy governor of the Central Bank. Mr. Chairman: Except the deputy governor is, in fact, a full-time employee. Sen. Ramlogan SC: I think what they are saying is that the deputy chair will necessarily also have to be a full-time employee. So that is fine. Sen. Drayton: Should I go on, Chairman? Mr. Chairman: Yes. Sen. Drayton: With respect to the absence of a board member, I think that has been dealt with, so we can remove that. Mr. Chairman: So, right, we take out that. Sen. Drayton: I had suggested that other members of the board serve a term of five years instead of four. You have an amendment there. Sen. Dr. Tewarie: We have an amendment which rotates the members. We took the principle of rotation as valid. Mr. Chairman: So you have six and five and so on. Sen. Dr. Tewarie: You have four members for six years; three members for five years and all the members in 10(1)(h) for four years. Sen. Drayton: All right. Mr. Chairman: Is that satisfactory? Sen. Drayton: Yes, it is. Sen. Al-Rawi: Mr. Chairman, I did not follow. Sen. Drayton, perhaps you can assist me, through you, Mr. Chairman. Where is it that your concern in relation to inability of a board member for whatever cause has been taken care of? Sen. Drayton: I think in a previous conversation it was said that the board can appoint—we would have a quorum anywhere. A quorum is seven? Sen. Dr. Tewarie: It is six. Sen. Drayton: So, I think it should be okay but, I mean, it is open for discussion. 9.10 p.m. Sen. Al-Rawi: So 11(3) stays at four years as the tenure for a board member? 346 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: What is that? Sen. Ramlogan SC: Yeah, that stays as is. Sen. Al-Rawi: Clause 11(3) stays as at four years? Sen. Ramlogan SC: Yeah, that stays as is. Sen. Al-Rawi: And you are happy with that very short term? Sen. Ramlogan SC: Yeah, we are. Sen. Dr. Tewarie: Well, you would get double, you know. Sen. Al-Rawi: I know, four to eight. Sen. Ramlogan SC: Yeah. That is fine. Sen. Dr. Tewarie: It is rotation, you know. Mr. Chairman: Sen. Drayton, you had an (e)? Sen. Drayton: Yes. The remuneration for the board, I agree with the amendments submitted by the Minister, that the Minister would set the salaries subject to approval of Parliament. Mr. Chairman: And you agree to that? So you would take that out, right? Sen. Drayton: Yes. Yes. Mr. Chairman: I just wanted to get the numbering before we go forward. So we had 11(1) as put forward in the circulated mark-up, we now have an 11(2), which is: The Regulator shall be entrusted with the day to day management. We have an 11(3), that “a person who has served as the Regulator for two consecutive terms shall not be eligible to become a member”. Then I presume what was—well, sorry, before I go there, we have “in the event of absence or inability”, where does that subclause come in? Sen. Young: That should be about (3). Mr. McIntyre SC: I would suggest it comes after (7). Mr. Chairman: After (7)? Mr. McIntyre SC: Yeah. Mr. Chairman: All right. Let us continue to go down. “The appointment of members” that you see in red, basically, in the track change will become (4), right? Sen. G. Singh: Yeah. 347 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Then “The appointment of a member shall be by instrument in writing”; that is (5)? Sen. Dr. Tewarie: Yes. Mr. Chairman: “The regulator may resign…”; that is (6)? Hon. Senator: Yes. Mr. Chairman: “A member, other than the Regulator, may resign…”; that is (7)? Sen. Dr. Tewarie: Um-hmm. Mr. Chairman: “The resignation of the Regulator…” shall be (8)? Sen. Dr. Tewarie: Yes. Mr. Chairman: “The salaries…” shall be (9)? Sen. G. Singh: No. Mr. Chairman: So (9) you will insert “in the event of absence” right? Sen. Young: Mr. Chairman, just to make sure we get it there again, and we will delete “procurement” in front of “regulator” there. Mr. Chairman: Correct. I did that. Sen. Young: Yes. Okay. Mr. Chairman: “in the event of absence or inability” Mr. McIntyre SC: Are we taking “the Deputy Chairman shall perform such duties”? Sen. Tewarie: Yes. Mr. McIntyre SC: AG? Sen. G. Singh: Yeah. Yeah. Mr. Chairman: Yes, that is what I understood. Sen. Tewarie: Yeah, (6) stayed, we have to take it. Mr. Chairman: Right. That becomes (9). Mr. McIntyre SC: That would be (9). Mr. Chairman: Subclause (10) therefore will become the salaries and allowances? 348 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. G. Singh: Yeah. Mr. Chairman: Correct? Sen. Prescott SC: In relation to (10)—[Interruption] Mr. McIntyre SC: You would say “in the absence”. Sen. Al-Rawi: That is the new (9). Mr. Chairman: That is (9), “in the event of absence or inability”. Mr. McIntyre SC: “…the Deputy shall perform such duties”. Mr. Chairman: Correct. Sen. Dr. Tewarie: That is (9), and “in the event of absence or inability” will be (10). Mr. Chairman: No, I thought that was taken out, altogether. Mr. McIntyre SC: We took it out? We did not take it out? Mr. Chairman: Yeah. I have it as struck out. Sen. Drayton—[Interruption] Sen. Young: Yeah. The (c) to (e), she withdrew those. Mr. Chairman: Yes, Sen. Drayton’s was—[Interruption] Mr. McIntyre SC: Okay. So this is out? Mr. Chairman: Yeah. Mr. McIntyre SC: Okay. All right. Mr. Chairman: So there are only two from Sen. Drayton’s that remain in, which are: “entrusted with day to day management” and the “absence or inability” of the regulator. Those are the only two that come back in. Correct? Sen. Prescott SC: Chair, the reference to Minister of Finance in—whatever that number is—[Interruption] Sen. Al-Rawi: Subclause (10). Mr. Chairman: Subclause (10), now. Sen. Prescott SC: May I just recommend that we just say “the Minister”, because the Minister of Finance does not have a constitutionally entrenched name, and the office may change to Minister of—[Interruption] Sen. Al-Rawi: The Minister is defined as the Minister with responsibility for finance. 349 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Prescott SC: So since it is already defined, let us just call him the Minister. Sen. Dr. Tewarie: It is defined as Minister of Finance. Mr. Chairman: So we would just say “Minister”? Sen. Al-Rawi: Yes. Mr. Chairman: And are we saying “subject to the approval of Parliament”? Sen. Young: Yes. Sen. Prescott SC: Whatever that means. I do not know what that means. Mr. Chairman: All right. Sen. Al-Rawi: Do we really want to say that? Sen. George: You really want to come back to Parliament to do this? Sen. G. Singh: Yeah. Yeah. Yeah. You have to have a check. Sen. Al-Rawi: Okay. And just to be clear, this will not shackle us to the SRC, right? Sen. G. Singh: No. Sen. Al-Rawi: Okay. Sen. Tewarie: No. That is why we eliminated it. Sen. Al-Rawi: No, that is why I said, just to be clear. Sen. Young: Checks for the people to be aware, so the SRC knows. Mr. Chairman: So in what form will you come to Parliament for that approval? Sen. Al-Rawi: By way of a resolution. Mr. Chairman: A resolution? Sen. G. Singh: Or a Motion. Mr. Chairman: A Motion? Sen. G. Singh: A Motion. Mr. Chairman: Okay. Sorry, Senator. Sen. Young: Chair, we did not touch on changing the current (9) to (11). 350 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: Chair, I just wanted to ask of Sen. Al-Rawi if he was comfortable with the Minister determining the salary without reversion to Parliament. Sen. Al-Rawi: Absolutely. Well, I was just wondering about the delay and difficulties. I heard what Sen. Ganga Singh has said, that you need a check and balance, but insofar as this person has been appointed by the President after consultation, I did not necessarily see the need to bring it to Parliament. Sen. Ramlogan SC: Yes, let us leave that as is. Yeah. Sen. Dr. Tewarie: Okay. By the Minister then? Sen. Al-Rawi: Yeah, I would say by the Minister. Hon. Senator: You need “subject to the approval of Parliament”. Sen. Young: I agree with that. Mr. Chairman: Yes. All right. So end at “Minister”? Sen. Young: Mr. Chair, just to change the (9) on the current draft to (11). Mr. Chairman: Yeah, I saw it. I made the salaries and allowance to be (10). Sen. Young: Correct, and then if you look below that, you would see there is—[Interruption] Mr. Chairman: Oh, and “All expenses…” to be (11). Sen. Young: Correct. Yes. Question put and agreed to. Clause 11, as amended, ordered to stand part of the Bill. Clause 12. Question proposed: That clause 12 stand part of the Bill. Sen. Prescott SC: Chair, in relation to 12(g), it appears to me that there are a great many offences that have been created over the past four years which are not necessarily offences of moral turpitude of any such thing. Mr. Chairman: Well it is “may remove” by the way. Sen. Ramlogan SC: Yes, it is “may”. It is “may”. Mr. Chairman: “The President may remove”, so I take it that he will take extenuating circumstances into account. 351 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: Yeah. I do not think we would want to tamper with this, you know, Elton. Sen. Prescott SC: I am inclined to exclude certain offences. Sen. Ramlogan SC: “Nah.” Do not bother with that. Listen, the President in his discretion would exclude those same offences that you are thinking about. [Laughter] Sen. Al-Rawi: I am sort of cautious about it as well. Mr. Chairman: Sen. Balgobin, you had a question? Sen. Dr. Balgobin: I just have a quick question. I heard the Attorney General, and I just have one question. Is it contemplated that the performance of members be assessed? Modern standards of governance now, you know, encourage the assessment of members. Sen. Ramlogan SC: The answer would be, yes, but you see that is why we kept it at the four years and did not want to extend it to the five. Sen. Dr. Balgobin: But, you see, on the basis of an assessment you may wish to give the President the authority to remove somebody. Sen. Ramlogan SC: No. No. You see, we also have to balance that—the competing tension there would be the need to have them with some degree of security of tenure, so that reinforces and supports the independence of the person. But, I mean, you could have a politically charged President as well and all sorts of things can happen, but once appointed you monitor their performance. I mean, in the same way some Independent Senators have been removed, you might have a board member from there being removed but, you know, the President seeks to monitor. Sen. Dr. Balgobin: So what is the purpose of the assessment then? Sen. Ramlogan SC: To remove them at the end of four years. In the same way the purpose of assessing a Government, a Senator, anybody, is to check them out and, you know, tell them “dus’ it”. Sen. Dr. Balgobin: I was not aware that I was being assessed, but thank you for that. Sen. Ramlogan SC: Sorry? Sen. Dr. Balgobin: I was not aware that I was being assessed. 352 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: So you want to have other people assessed and you want to remain free from assessment? Sen. Dr. Balgobin: No. No. I was just not aware. You drew a comparison there and I was unaware that that was happening, but thank you for letting me know. Sen. Al-Rawi: We will presume it is afoot. Mr. Chairman: There is always a tension and I understand accountability issues, but independence issues sometimes trump. Sen. Vieira, are you still pursuing an amendment you had circulated? Sen. Vieira: I was just thinking about the possibility of suspension while determining whether someone should go or stay. Mr. Chairman: Oh, I see. Sen. Vieira: I am not pursuing it. Mr. Chairman: Okay. Sen. Ramlogan SC: “Nah.” Let the guillotine fall if it has to fall, like judicial review “an ting”. Question put and agreed to. Clause 12, as amended, ordered to stand part of the Bill. Clause 13. Question proposed: That clause 13 stand part of the Bill. Sen. Al-Rawi: Mr. Chairman, I wondered in—[Interruption] Sen. Ramlogan SC: I wonder if I could pre-empt Sen. Al-Rawi and other Senators if necessary, just to say, look, instead of saying “The functions of the Office are to”, we can say “The function of the Office shall include”, and that will thereby include everything that “all yuh” have to add without you necessarily adding it. Sen. Al-Rawi: Thank you, AG, for anticipating that position. Sen. Ramlogan SC: You are welcome. Sen. Al-Rawi: I appreciate that. Mr. Chairman: Except, AG, when you use the language of “The functions of the Office shall include—(a) establish”, you would need “establishing”. I presume we have to change the verb. 353 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: Yes, that is true, and we will have to change it all the way down. Mr. Chairman: Yes. Sen. Ramlogan SC: Well, yes, that is a good reason to leave it as is and put it to the vote, yes. Sen. Young: A body as powerful as this one we need to give it the parameters. So, I mean, by using the language you had just suggested, they could go on a frolic of their own, as we used to say. Sen. Ramlogan SC: Yeah. You see, the problem here is that these are functions and, you see—I mean, I know some people are tempted because as you reach (s) they want to continue with (t), (u), and go down the road to (z). Sen. George: All you have to do is to add “to” after “include”, you know. Sen. Al-Rawi: No. No. I think that Sen. Young’s point, which is I think on the right track, is that if we put functions that are broader than that set out prescriptively here that we may invite a little mischief into the scope of the operation of the law. Sen. Ramlogan SC: Yeah. That is correct. Sen. Al-Rawi: So there is merit in that as well. Sen. Ramlogan SC: Okay. I agree with Sen. Young, this is good enough as is. Mr. Chairman: Good enough. So you are leaving “are to”? Sen. Al-Rawi: I just wanted to be sure, in (1)(a), that when you are establishing a comprehensive database that you own, maintain and—well, you own, establish—[Interruption] Sen. Ramlogan SC: No, but these are the functions you know, really. They will, you know, work that out. Sen. Al-Rawi: You see, later on the ownership—it comes about in terms of a liability under the Data Protection Act and other legislation. Sen. Ramlogan SC: No, but you would not include that in a functions section. This is just to speak to the functions of the entity. Sen. Al-Rawi: Okay. I could accept that and take it at the lower clause down. Sen. Drayton: Mr. Chairman, I just want to raise one question about the functions. 354 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Sen. Drayton. Sen. Drayton: Yes, under (o) “act…in the name and on behalf of the State to dispose of real property owned by the Government in such”—a—“manner as the Government may consider appropriate and desirable”; I am trying to come to grips with that in the context— Sen. Ramlogan SC: With the “desirable” part? Sen. Drayton:—of the independence of the regulator. Is it that the Government would be telling the regulator—[Interruption] Sen. Ramlogan SC: Well, let us put a full stop at the end of the first “Government” and call that off? Sen. Drayton: Yeah. Sen. Ramlogan SC: So it would be “act for, in the name and on behalf of the State to dispose of real property owned by the Government”. Sen. Drayton: Yes, I think so. Sen. Al-Rawi: I had the same observation as Sen. Drayton, but my question here is, does “Government” necessarily include State and all state enterprises? Sen. Ramlogan SC: Yes. Sen. Al-Rawi: Or did we want to say “owned by a public body”? Sen. Young: Owned by the Government or—[Interruption] Sen. Al-Rawi: Yeah. They are agents. They are acting for the State. Sen. Dr. Tewarie: Listen. Listen. Listen. This one is a little problematic, you know, you have to be careful. Sen. Drayton: Not as if it is state-controlled. Sen. Dr. Tewarie: Listen, the State has property, the State has things under its jurisdiction that it wants to dispose of. All right? Well what do you want to do? You want to take away that responsibility from the State? Sen. Al-Rawi: No. Far from. What we are saying inside of here is that we want to be careful that the office is not fettered and, secondly, that we are capturing the property that is actually owned by the broadest section of the State. Sen. Ramlogan SC: Would you be happy if we put a full stop at the end of the first “Government”. 355 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: Yes, for sure. But there is something else. Sorry. Sen. George: If you look at (p), which is just below that, we can have public property, you know, which—is it not the same thing as owned by Government? Sen. Al-Rawi: No, this is the point of the—[Interruption] Sen. Ramlogan SC: I understand your point, and your point is simply we should not limit it to “on behalf of the State”, because it could include independent entities of the State. Sen. Al-Rawi: Yes. Sen. Ramlogan SC: Yeah. So the simple way to deal with that is—I agree with you—we can say “act for, in the name and on behalf of the State or any public body”. Sen. Al-Rawi: Yes, as broad as they are. Sen. Ramlogan SC: Right. So we can do that. “act for, in the name— [Interruption] Sen. Moheni: Should there not be a differentiation between acting on behalf of the Government—[Interruption] Sen. Ramlogan SC: Who is that? [Laughter] Sen. Moheni:—and the manner. I think the question here is the manner— [Interruption] Hon. Senator: He is on our side. Sen. Al-Rawi: What is your point? Sen. Moheni: Mr. Chairman? Mr. Chairman: Yeah, I am hearing you, Senator. Sen. Moheni: I think the question here is “in such manner as the Government may consider”. Mr. Chairman: That is all being deleted. So we are going to end after the word “Government” in line three. 9.25 p.m. Sen. Young: The AG was making the right amendment. It is, “act for, in the name and on behalf of the State and public body.” 356 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: And/or any public? Sen. Ramlogan SC: The State or any public body. Sen. Young: Because public body is all-encompassing. Mr. Chairman: Just to ask the question: Is this an exclusive function in the sense that, can the State also dispose directly or must it all be done by this regulator? Sen. Vieira: I was wondering whether you should also put the words “or controlled”, “owned or controlled”. Sen. Ramlogan SC: Chair, this is just the functions clause, so it does not create a substantive link. Sen. Al-Rawi: But AG, just to raise that point. I did not see anywhere else— later on we deal with disposal, but only for certain items, and the only place that I found that deals with real property was in this particular clause here. So I did not know where we were operationalizing it elsewhere. I follow your point that function should have a certain description, and I am cool with that, but I did not know where else we dealt with it. Sen. Dr. Tewarie: If you create a thing here in which the procurement regulator has to deal with everything that Government wants to dispose of, I mean, besides killing the regulatory agency to start with, you overburden it. They will not be able to deal with their other functions which is managing— Sen. Al-Rawi: That is the question I had. I mean, I had a big asterisk on this clause which related to exactly that point. Sen. Ramlogan SC: Well let us leave it as is then? Sen. Al-Rawi: No. [Crosstalk] Sen. Dr. Tewarie’s point was that the mere fact of including this in their function is to overburden them in everything except the tail end. Sen. Dr. Tewarie: You need to include them, but you do not need to include them so that they take everything. Right? There are some things that you may ask, for various reasons, the procurement regulator to address, but you do not need to put everything in their hands, every pencil and so forth. Sen. Drayton: Could it be the subject of regulations? Sen. Al-Rawi: Disposal of stores and equipment by a public body is dealt with under Part VI. That is the only other place that specifies what rules guide disposal and who handles it. 357 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Singh: That is what is required; the regulator has to create the rules. Sen. Dr. Tewarie: Listen, this relates to real property. Sen. Al-Rawi: That is my point. My point is that real property right now, Act No. 97 of 1999, was the legal notice that brought into effect the CTB handling disposal, in similar language, of state property. So it is grounded in existing law and I like it that way; so there is a governing piece and authority there. I am cautious about the operationalization of this body, which is why I mentioned management, et cetera. Sen. Dr. Tewarie: But the piece you want to delete is the piece that gives Government the flexibility. Sen. Al-Rawi: Exactly. Sen. Dr. Tewarie: So do you want to delete it? Sen. Al-Rawi: Yes, we do. We do want to do it, to make it mandatory then, but I am just making sure that this new entity has the capability to deal— Sen. Dr. Tewarie: You want to make it mandatory to put every piece of real estate— Sen. Al-Rawi: Well, who else is going to deal with it? Sen. Drayton: Could the regulations not handle that? The regulatory guidelines can deal with that? Sen. Ramlogan SC: I think the regulations can address that, yes. I think we can leave that for the regulations. Sen. Al-Rawi: No, I have a problem with slipping it past that way, because we deal in Part VI with disposal of small property—let me call it that—disposal of stores and equipment of a public body, but nowhere else do we deal with it. Sen. Ramlogan SC: Faris, let us hear Tony on it. Tony, help us with this. Come Senator Vieira, work for your dinner; come, help us with this. [Laughter] Sen. Vieira: On this particular clause, my only comment was I would like to expand besides “owned” to “owned or controlled”. Sen. Ramlogan SC: So we leave it as is and we say “owned or controlled”? Sen. Vieira: By the Government. Sen. Ramlogan SC: Well, we can do that. Leave it as is, and it is “owned or controlled”. 358 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Vieira: Where Sen. Al-Rawi is going with the surplus, I thought that was too limiting— Sen. Al-Rawi: Correct. Sen. Ramlogan SC: Yes. Sen. Vieira:—and I felt we should expand that to the disposal of personal property, owned or controlled by— Sen. Al-Rawi: I agree. Sen. Ramlogan SC: So we insert “owned or controlled”, and we “good to go”. Mr. Chairman: I would like to suggest that we introduce “or any public body”. Is that something we are introducing? Sen. Ramlogan SC: No, I think we leave it as is. Mr. Chairman: So we are restricting it to the State? Sen. Ramlogan SC: Because I took the point earlier made that it is going to be an onerous and burdensome task. Mr. Chairman: I mean, I hear Minister saying, is this going to be an exclusive function of the board, and I am wondering perhaps if the language were tempered somewhat to say at the end, if the Government considers such disposal appropriate and desirable—so that you are not telling them how to do it in such manner, but if you considered the disposal desirable— Sen. Ramlogan SC: Well, they cannot dispose of it of their own motion just like that. It would have to be that we consider it desirable. Sen. Moheni: [Inaudible] [Crosstalk] Mr. Chairman: Or rather than “if”, you could say “to the extent that”. Sen. Dr. Balgobin: Just for my edification— Mr. Chairman: Sen. Dr. Balgobin. Sen. Dr. Balgobin: Thank you, Chairman. Just for clarification, does this mean that—let us say a company like Petrotrin wants to dispose of property— Sen. Ramlogan SC: We took out that. It is now limited just to the State. Sen. Dr. Balgobin: State enterprises actually own a lot of stuff, and are you sure you want to exclude state enterprises? 359 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: Yes, but they will have to report on the disposal. Sen. Ramlogan SC: You have to be careful. Listen, this is a very important step in the right direction, but let us not overburden it to the point where it cannot get off the ground when we operationalize it. Sen. Dr. Balgobin: Actually, the reason I am raising it is because state enterprises may often have a lower standard of governance than would obtain, for example, in a Ministry. Sen. Ramlogan SC: Not necessarily, not when it comes to disposal of property really, when you think about it. Sen. Al-Rawi: AG, the only concern I have— Sen. Ramlogan SC: Procurement, yes, but with disposal— Sen. Al-Rawi: Sen. Dr. Balgobin, if I could just say: (o), if it stops at the word “Government”, captures the existing law, which has worked fairly well for government properties. Either it is deemed to be government property or not, and if it is, it must go through. In the current law it is the CTB, the proposed law will be that the office deals with it. The only caveat that I have, AG, when we come down to Part VI, is the disposal of other property. So public bodies are only obliged to dispose of their real property. Think of a large state enterprise which is vested with certain lands, like CDA—or not the CDA, probably a bad example—the EMBD or something— Sen. Ramlogan SC: Well, let us deal with them when we come down. Sen. Al-Rawi: Okay, but I am just flagging the fact that at clauses 53 and 54, the disposal of real property by public properties— Sen. Ramlogan SC: The flag is blowing like a jhandi in the wind, my friend. Sen. Al-Rawi: Thank you. Sen. Vieira: I realize that this section is just copied from the Central Tenders Board amendment which says that: The functions and duties of the Central Tenders Board are hereby extended to include the authority to act for, in the name and on behalf of the Government to dispose of real property owned by the Government, in such manner as the Government may consider appropriate and desirable. Sen. Dr. Tewarie: This is why I am asking whether you want to take out the final clause. 360 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. G. Singh: Let us keep it as is. Sen. Ramlogan SC: Let us keep it as is, guys. Sen. Dr. Tewarie: I would prefer that we leave it as it is. Sen. Ramlogan SC: Okay, let us move on, Chair. Sen. Drayton: As the Government may consider appropriate? Sen. Dr. Tewarie: No, I like the phrasing of the current section in the Central Tenders Board Act. Sen. Al-Rawi: No, that is the current (o) then. So you are proposing, do not stop at Government, keep the qualifier at the end? Sen. Dr. Tewarie: Keep the whole clause, yes. Sen. Ramlogan SC: Let us move on. Mr. Chairman: So the clause remains as is? Sen. Dr. Tewarie: Yes. Mr. Chairman: Except you wanted to put “or controlled”? Sen. Ramlogan SC: Yes. Sen. Al-Rawi: May I ask what (k)— Sen. Ramlogan SC: Well you have to own it to dispose of it really, you know. The CPC is making a good point. Sen. Vieira: You could have things on licence. [Crosstalk] Sen. Dr. Tewarie: No, you cannot lease things “yuh eh own”. You could sublease, but that is it. Mr. Chairman: Again, “owned” here would include—[Crosstalk] Sen. Ramlogan SC: Yes, yes, let us leave it. That is fine. Sen. Al-Rawi: I had the same problem, you know. The amendment that Ramesh Lawrence Maharaj SC piloted dealt with leases specifically, back in the 1990s. That is why I raised the concept of ownership earlier in the debate, in the committee. You need to make sure that a lease—an alienation of a lease can be a substantial interest disposed of. Sen. Dr. Tewarie: “Faris, this is the function section; leh we go on, nuh; leh we move on.” 361 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: Yes, let us move on. Mr. Chairman: The clause is intended to remain as is? There is no amendment of (o), at any rate? Sen. Dr. Tewarie: No. Sen. Al-Rawi: May I ask in (k) what “system-wide databases” are? Sen. Drayton: So what is meant by “in such manner”—so we are saying then that the Government will be telling the regulator, so why is the regulator getting involved here at all then? I am trying to understand. If it is that the regulator has to dispose of property, as instructed by the Government, because this is how I am interpreting this, why is this function coming here at all? Sen. Al-Rawi: It is to personify the negotiating entity to dispose of the land. Sen. Dr. Tewarie: So that you will take it out of the hands of any state entity and put it in the hands of the procuring— Sen. Drayton: So what, the regulator in this instance is just carrying out a function? Sen. Dr. Tewarie: Yes, but he cannot come and take the state land and do what he wants with it. The State has to ask him. Sen. Ramlogan SC: I think Sen. Drayton’s concern is the use of the words “in such manner”. Sen. Drayton: Yes, in the manner as considered appropriate by the Government. Sen. Dr. Tewarie: No, you cannot instruct that, they will go through a procurement process. I do not understand that. Sen. Al-Rawi: Anthony, the same language as the CTB, right? Sen. Vieira: Yes. [Crosstalk] Sen. Ramlogan SC: Look, this is the function clause, you know, it does not give the substantive power. Sen. Dr. Balgobin: I think what is being identified here, Minister, there is an opportunity for you to clarify that the disposals that occur will be governed by the regulations. Sen. Dr. Tewarie: Yes, with the procurement regulator. [Interruption] 362 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: No, no, no, I was just looking for an answer to (k). What is a system-wide database? Sen. Ramlogan SC: But it is self-explanatory. [Laughter] It is a database that is system wide. [Laughter] Sen. Al-Rawi: Where? Hon. Senator: It is self-evident. Sen. Dr. Tewarie: We cannot define every element of this. Sen. Vieira: Small point—at (r), inasmuch as we are talking about alternate dispute resolution, could you also add in “experts”? So it would be mediators, arbitrators and experts. Sen. Ramlogan SC: Sure. Mr. Chairman: Where is that? Sen. Ramlogan SC: (r)—“R” as in Ramlogan. Mr. Chairman: Mediators, experts and arbitrators? Sen. Vieira: Arbitrators and/or experts; and experts. Sen. Al-Rawi: On a slightly smaller point in (s), “best practice advice”, is it with an “s” or a “c”? Sen. G. Singh: “c”. Sen. Ramlogan SC: “c”, that is correct. Sen. Prescott SC: May I make some observations on (s), please? Mr. Chairman: Yes. Sen. Prescott SC: The use of the term “best practice advice” appears to be some kind of modern slang. Is that right? Sen. Ramlogan SC: It is management jargon. Sen. Prescott SC: I wonder why we are using jargon, when there is no need to do so. We could say “advice on the best practices in”. Secondly, in light of the definition of value for money as being optimal balance, et cetera, what does “best” add to the description of value for money? Sen. Ramlogan SC: So you want to say provide advice? 363 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Prescott SC: Provide advice in the best practices. Sen. G. Singh: Yes, that is the correct thing; advice on best practice. Sen. Ramlogan SC: We agree. Sen. Prescott SC: And then tell me: how does best improve on optimal balances? Sen. Vieira: Obtaining value for money. In subclause (2) (b)— Sen. Singh: No, no, I have to make sure—Mr. Chairman, you got that? Sen. Ramlogan SC: Let us get (s) first properly. Mr. Chairman: Well, I have it, “provide advice in the best practices”— Sen. Ramlogan SC: Provide advice on. Mr. Chairman: “on the aggregation of the procurement or disposal of goods for the purpose of obtaining value for money”. Sen. Prescott SC: Thank you very much. Sen. Ramlogan SC: Sen. Vieira? Sen. Vieira: At (2)(b), the words, “in the performance of its functions”, we do not need them. This is redundant, because it starts off “in the exercise of its functions, the Office shall”. Sen. Ramlogan SC: Yes, that is a circulated amendment. Sen. Vieira: Well, I just saw it here. Sen. Ramlogan SC: Sure, no problem. Mr. Chairman: So the question is that clause 13 be amended as circulated. Sen. Al-Rawi: Where was that circulated, AG, sorry? [Crosstalk] Sen. Ramlogan SC: By Sen. Vieira. Sen. Al-Rawi: Oh, by Sen. Vieira. Sen. Ramlogan SC: Yes. Mr. Chairman: At the very (s) there is a circulated amendment—for money. What I am saying is that clause 13— Sen. Al-Rawi: So what would it read, sorry? 364 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: The question is that clause 13 be amended as circulated and as further amended and read. Sen. Al-Rawi: Just the last amendment, sorry, Mr. Chairman, I did not follow what was the last amendment proposed by Sen. Vieira. Sen. Maharaj: After “value” we add “for money”. Sen. Al-Rawi: I see. Thank you. Question put and agreed to. Clause 13, as amended, ordered to stand part of the Bill. Clause 14. Question proposed: That clause 14 stand part of the Bill. Sen. Vieira: Mr. Chairman, I just had one suggested amendment: Add the following new sub-clause (3): “At all times the Office shall, in the performance of its functions and exercise of its powers, act in an objective and non-discriminatory manner.” 9.40 p.m. Sen. Ramlogan SC: Are you okay with that, Bhoe? Sen. Dr. Tewarie: In principle we would then be in a position in which people sue the office all the time for being— Mr. Chairman: Well it will be subject to the Equal Opportunity Act, I take it. I thought it was going to take that into account. Sen. Vieira: No. No. No. That clause already exists in other legislation. So, for example, it is in the Telecommunications Act. That is not a problem. Sen. Ramlogan SC: That is not a problem. We will insert it, provided that you will skip the next two. [Laughter] No. No. But we are happy to put that in because it is an important function. Mr. Chairman: So can we read that out again, please, Senator? After “functions”, I take it you want a semicolon there, I take it? Sen. Ramlogan SC: No. No. No. Sen. Vieira: I am suggesting that there is a 14(3)— Sen. Ramlogan SC: Yes. 365 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: A stand-alone. Sen. Vieira: And this will read: “At all times the Office shall, in the performance of its functions and exercise of its powers, act in an objective and non-discriminatory manner.” Mr. Chairman: Oh, I see, that is as circulated by you. Sen. Vieira: Yeah. Sen. Cudjoe: Mr. Chairman, I do have a question. Mr. Chairman: Oh, Dr. Edwards. Is it Dr. Edwards? Sen. Cudjoe: No, Shamfa. Hon. Senator: And Dr. Edwards; both of them. Sen. Cudjoe: I am not—sorry. Sen. Al-Rawi: He cannot hear you. Sen. Dr. Edwards: Yes, Mr. Chairman, I was just wondering 14(1)(b), can we put some type of scheduling in there? Where it says, “…conduct audits and periodic inspections…”, whether it be yearly, biannually, quarterly, some type of scheduling, as opposed to just leave it as “conduct audits and…” Sen. Ramlogan SC: I think those are matters that we will deal with in the regulations—[Interruption] Mr. Chairman: It is not that—[Interruption] Sen. Ramlogan SC:—because it may vary from entity to entity. Mr. Chairman:—it may do certain things. It is just powers that the office has. Sen. Ramlogan SC: Yeah. Sen. Young: And you will want the power to do it at any time. Mr. Chairman: Yes. It may be more frequently. It could be— Sen. Ramlogan SC: All right. Let us move on. Mr. Chairman:—you have a suspicion about something you might [Inaudible] ad hoc. Sen. Cudjoe: Mr. Chairman, no. 366 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Oh, sorry. Sorry. Sorry, Senator. Sen. Cudjoe: Mr. Chairman, I am making an enquiry about clause 14(c), where this “office may issue directions to public bodies to ensure compliance with this Act;” And 14(2), says: “A public body shall comply with this Act and any directions issued…under that…1(c).” Does that not interfere with the authority and the flexibility of the “public body” as it relates to its direction? I am asking that question. Sen. Ramlogan SC: It may, but the point is, this legislation is meant to override that power that they would have in any other law on the issue of procurement. Sen. Cudjoe: So my concern— Sen. Dr. Tewarie: And the issue is procurement; remember that. It is not everything. Sen. Ramlogan SC: So in other words, the THA will not be able to procure other than in accordance with this law—to get to the point. [Crosstalk] Hon. Senator: But the point is clear. Sen. Ramlogan SC: Sorry. Sen. Cudjoe: But then that would have to—then you would need to make amendments to the Tobago House of Assembly Act. Sen. Ramlogan SC: Not necessarily. No. Not necessarily because, you see— Sen. Dr. Tewarie: Because all the Ministries are conformed. Sen. Ramlogan SC: Because, you see, not necessarily, we have made the THA expressly subjected to the Act already, so with that you do not need any consequential amendments. If you take, for example, the Freedom of Information Act, when you made entities subject to that, you did not have consequential amendments in the existing law for those bodies. So, we are comfortable on this point. Sen. Cudjoe: I beg to defer, you know. I think this is going to be a cause for some confusion because the part that says, it “…shall comply with this Act…”, what if this direction is not beneficial to the Assembly? You see— Sen. Dr. Tewarie: No. You cannot make— 367 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Cudjoe: No. No. No. Can I finish my sentence, please? Can I finish my sentence, please? This is my sentence. Later on in the legislation it provides—I think, in clause 54, when we get there maybe we would consider how the both clauses interrelate. It provides for appeal only by suppliers and contractors, but not by public bodies. So if we are going to keep this this way, I am saying, if these rules and regulations apply to Ministries, then yes, it may apply to the Tobago House of Assembly, but we must keep in mind the Tobago House of Assembly Act, and not just that. There must be some avenue for appeal for these public bodies and the decisions made. Sen. Al-Rawi: I want to concur wholeheartedly with Sen. Cudjoe for the following reasons. Sen. Dr. Tewarie: On what matter are you concurring? Sen. Al-Rawi: On the fact that a non-compliance with a direction by a public body, as widely cast as that definition is, which shall equal to a breach of the law is punishable under this Act, under clauses 61 and 62 by $2 million, $5 million, et cetera. In those circumstances there may be legitimate areas where a public body, being an entity for instance, which is a private entity but which is a recipient of public moneys in some part and therefore, falls within the net, may wish to have an appeal in relation to something, but be deemed to be breaching the Act and liable to $5 million without any grade of offences. It can run the risk of an excessive criminalization problem. So “A public body shall comply with this Act…”. If you look at clause 61 later on when we come down to offences: “Any person who contravenes this Act commits an offence and where no penalty has been provided for the offence, the person is liable on conviction to a fine of two million dollars and imprisonment for seven years.” So are we excessively criminalizing somebody who may have an approach, which is legitimate, to object to a direction given to it by the procurement office? Sen. Dr. Tewarie: I mean, I do not know why this is being raised in particular reference to the Tobago House of Assembly. Sen. Al-Rawi: I am speaking—I used an example other than the THA. Sen. Dr. Tewarie: If you have a situation in which the regulator is responsible for oversight for the procurement process, everybody says they want autonomy, they want strength, they want all of these things. You cannot have a situation in which they offer guidance under that authority and people do not comply. I mean, that is what I spoke about— 368 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: Mr. Chairman, I agree with you, but to avoid excessive criminalization, the process adopted is usually very grave directions which must be complied with, shall attract the highest fines and penalties. They may be lesser administrative directions which you are going to be subjected to for an offence. This is any direction. There is no grade of directions. Sen. Dr. Tewarie: I would expect that if they issue guidance or guidelines that they must comply with and there— Sen. Al-Rawi: But this is any direction. Sen. Dr. Tewarie:—and there is—ah? Sen. Al-Rawi: Hon. Minister of Finance and the Economy, I am going to beg you to join this conversation. You are very well aware in the securities laws and in the insurance laws that we have been met with a constitutional objection against excessive criminalization because we fail to break down directions which are of a more serious nature versus those which are of a minor nature. In this law here right now, you can see for yourself as chairman of those committees, that you are proposing that any direction is a fine of $5 million and seven years in jail. That cannot be right. Hon. Senator: It is up to— Sen. Vieira: May I make a suggestion? Sen. Al-Rawi: But there is no grade. Sen. Vieira: Faris— Mr. Chairman: Sen. Vieira. Sen. Vieira:—I am agreeing with you, and I am just thinking that on page 38 where you have suppliers or contractors being accorded an adequate opportunity to be heard and to make representation, we could adapt that, so “A public body shall comply with this Act and any directions issued to it under subsection 1(c)”, and then you can add, “a public body shall be accorded an adequate opportunity to be heard and to make representation regarding any such directions as may be issued”, and then maybe a right to challenge or appeal. Sen. Al-Rawi: That is my concern. My concern is that a minor direction and a major direction, both are offences. Sen. Ramlogan SC: No, but can I just ask, does that arise in the clause that we are on right now? 369 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: Yes. In subclause (2). Sen. Ramlogan SC: 14(2)? No. No. No. No. No. Sen. Cudjoe: It says, “shall comply”. Sen. Ramlogan SC: I know. It says, “shall comply”, but the question Sen. Al- Rawi is on, and Sen. Vieira, is the question of the penalty and the criminalization of it thereafter. Sen. Al-Rawi: Yes. For non-compliance. Sen. Ramlogan SC: Non-compliance, exactly. So can we deal with that when we come to that particular clause? Sen. Al-Rawi: No. We cannot. Sen. Vieira: You see because, do not forget, “public body” also includes this Parliament— Sen. Ramlogan SC: Sure. Hon. Senator: It includes the Judiciary. Sen. Vieira: It includes the Tobago House of Assembly, Regional Health Authorities. Sen. Ramlogan SC: I understand the point. Yeah. Sen. Vieira: So they may actually have a reason or there may be something that has not been properly taken into consideration— Sen. Ramlogan SC: Sure. Sen. Vieira:—and they should be afforded an opportunity to make a representation, and to say, well look, give us a hearing. Because otherwise they are going to be strictly— Sen. Young: If I may add, just before the hon. Attorney General. This is just my opinion, and the Attorney General has experience in JRs as well, but if the regulator were not to afford a hearing, et cetera, I guess it depends on the directions, but he would be subject to judicial review. Right. If you were just to go ahead—basically, what I am trying to say is what you all are trying—you all are reaching out at, is that not covered by judicial review? Sen. Ramlogan SC: Nah. It may not, you know. Unless Sen. Vieira’s procedural safeguard is, his idea— 370 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Young: Is put in place. Sen. Al-Rawi: I think we must demonstrate a procedural safeguard. Sen. Ramlogan SC: We should not risk it. Sen. Al-Rawi: And it is usual— Sen. Ramlogan SC: Can we not put—Sen. Al-Rawi, could you help us with a subclause (3)—14(3), with what you just read out? Sen. Al-Rawi: Well, unless you want to amend (2) which says, subject to subclause (x), a “public body shall comply” and then you impregnate in subclause (x). Sen. Ramlogan SC: I think if he dictates it appropriately we can get it as subclause (3). Sen. Al-Rawi: Anthony, which clause was it dealt with? Sen. Vieira: (4). Mr. Chairman: Where was it? Sen. Al-Rawi: You said page 38; which clause was it? Hon. Senator: He was reading something else. Sen. Al-Rawi: He dealt with the contractors or service providers. Sen. Ramlogan SC: He was reading from something I wrote down and gave him. Sen. Vieira: Subclause (5) where the: “…supplier or contractor shall be accorded an adequate opportunity to be heard and to make representation...” So I was simply saying, “A public body shall comply with this Act and any directions issued to it under subsection (1)(c)”, but you also add “A public body”— Sen. Ramlogan SC: Go slow so we can take it down. Sen. Vieira: “A public body shall be accorded an adequate opportunity to be heard and to make representation in respect of any such directions.” Sen. Ramlogan SC: That is what you call “slow”? That is what you call “slow”? [Laughter] 371 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Vieira: Sorry. Where was I? Mr. Chairman: “A public body shall be accorded an adequate opportunity to be heard…”— Sen. Vieira:—“and to make representation in respect of...”— Sen. Young: “Or prior to any directions”. Sen. Vieira: No. Sen. Ramlogan SC: “..in respect of…” Sen. Vieira: “…in respect of…” because it might come afterwards. Sen. Ramlogan SC: Yeah. That is right. Sen. Vieira:—“in respect of any such directions.” Sen. Ramlogan SC:—“in respect of any directions”? Sen. Vieira: Yeah. Sen. Young: Well, not in general, in respect of (1)(c). Sen. Vieira: “in respect of such directions.” Sen. Ramlogan SC:—“…in respect of any directions… issued under 14(2) or subsection (2).” Sen. Drayton: Chairman, I am very worried about that. I can see this regulatory office being bogged down by objections after objections with respect to directions. Sen. Young: The risk is getting struck down constitutionally. Sen. Drayton: Well could we phrase it in such a way that it will be subject to some regulatory guideline, you know, that safeguards—[Crosstalk] Sen. Al-Rawi: You cannot safeguard. It has to be the parent law. Sen. Drayton: What we are doing here is creating a law, and then saying that every single procuring entity or public body can raise an objection to any direction given by the procurement regulator. Sen. Al-Rawi: No. It is called due process. Sen. Vieira: Helen, you see here they have penal consequences. Sen. Ramlogan SC: Yes. 372 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Vieira: And that is the problem. Sen. Drayton: Well then in learning from the securities and insurance, why do we not come up with some sort of tier system rather than open the regulator to objections for every single direction issued to, you know, a procuring entity? Sen. Ramlogan SC: Sen. Vieira, I just want to point out something “eh”. The fact that we have [Crosstalk] no. You see— Sen. Dr. Balgobin: I do not understand. What do you mean, you want to raise an objection? Sen. Ramlogan SC: What sold me on the point, what persuaded me on the point was this. As indicated you may have good reason for not complying or rather not wilful non-compliance, but rather being unable to comply. For example, you may have staff shortages in a particular place, a particular critical functionary may have gone on leave as the case may be, and you may have a legitimate excuse. Now, nowhere can you impose that penalty automatically without taking into account the possibility that the entity may in fact have a reasonable explanation. 9.55 p.m. Sen. Dr. Balgobin: Attorney General, as I understand it, if I am operating in a state enterprise that is using public money, I am not free to disagree with what— Sen. Al-Rawi: Rolph, a public body is not just a state enterprise. The problem is, the definition is wide. Sen. Dr. Balgobin: Okay, I hear you. [Interruption] May I spin out my example, or am I causing offence? Sen. Al-Rawi: Sure, sorry, apologies. Sen. Dr. Balgobin: Well, okay. I am saying, I am using public money, surely if there is a disagreement between my entity and the directions set out by the procurement regulator, that is a matter for discussion and resolution. It is not a matter for me to take it upon myself to seek redress in court. Sen. Al-Rawi: Why not? Sen. Dr. Balgobin: Because I am fighting myself. I am receiving public funds and I am regulated by the procurement regulator. In the same way that I may not be able to comply with FIU requirements or some other kind of thing, what is it that I am supposed to do? 373 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: But it is any direction. Any direction no matter how trivial— Sen. Dr. Balgobin: No, in relation to public procurement and the use of public money. So, I am just asking the question, is not this something that ought to lend itself to resolution by dialogue? Sen. Al-Rawi: And if it does not? Mr. Chairman: I am suggesting that, of course, on the one hand, if we overburden the regulator, the real core functions would fall apart because he would be dealing with trivia. The real concern is that we have a penalty imposed that might be of the same gravity for small matters and big matters. Sen. Ramlogan SC: Yes. Mr. Chairman: I am just wondering where we deal with the clause saying, there should be a penalty of up to five years or whatever, going on to say, and the judge shall determine depending on the gravity of the circumstance in which this offence—something to that effect might address all the concerns. Sen. Vieira: Chair, that is fine and I agree with that, but what this is pushing is the need for consultation between the regulator and the public bodies. It is not set out here, and I think— Mr. Chairman: I understand that, and therefore, what I would expect the regulator to do, and I do not know if this will appear in the regulations, I propose—I think this is the normal standard—to introduce this regulation which will impact upon you, unless I hear from you to the contrary within 14 days I intend to introduce it; something like that. Sen. Al-Rawi: Mr. Chairman, this is the parent law. This is the parent law. Mr. Chairman: That is the norm. Sen. G. Singh: No, no, but I think we also need to entrench the right to natural justice. Hon. Senator: Correct. Sen. Al-Rawi: Exactly. Sen. G. Singh: We have to entrench that having regard to the attraction of very punitive sanctions. Sen. Al-Rawi: Correct. We must demonstrate due process because that is the first trigger to allow for a non-constitutional case. 374 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: Since I think that we are ad idem on that, I just want to raise another point, setting out the opportunity to make representation and be heard, does not by itself solve the problem. I mean, giving you a right to be heard to what end? Sen. Al-Rawi: Correct. Sen. Vieira: The right of appeal is what would follow. Sen. Ramlogan SC: Not only that, I mean, where have we given the regulator or the person who is performing the adjudicative function now to excuse you? Sen. Dr. Balgobin: But all we have to do is give him the right to vary his direction. Sen. Al-Rawi: But he has that right already. Sen. Dr. Balgobin: If he has the right to vary his directions, then— Mr. Chairman: We talked about the soft touch. Sen. Ramlogan SC: Sorry? Mr. Chairman: We talked about the soft touch. Sen. Al-Rawi: No, Mr. Chairman, I am trying to preserve the constitutionality of the section. Sen. Ramlogan SC: Can I? I agree that there should be some entrenchment of the right to natural justice. I am concerned, however, that the procedural safeguards that are necessary is something that will require a little more than what we have contemplated. So, if we can draft a provision that could treat with it in the regulations which will deal with the procedure for being heard and so on— Sen. Dr. Balgobin: We can issue directions. Sen. Ramlogan SC: Yes. Sen. Dr. Balgobin: That is fine. Sen. Al-Rawi: So, AG, we can come up with it in or around clauses 60, 61, 62. Sen. Ramlogan SC: No, we could put it here at 3. I think we could put it here after 2, because 2 is where you say they must comply. Sen. Dr. Balgobin: Yes. Sen. Ramlogan SC: I think you could put in—we will come back to it if necessary, but I will ask the CPC to draft something that would allow for some procedure that involves a right to a hearing prior to the imposition of the fine or the penalty, and you will do that in regulation because we have to put it in. 375 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Young: That is what I was just going to suggest, AG. Just put it here, the procedure that would be set out in the regulations. Sen. Ramlogan SC: Yes, shall be followed— Sen. Young: Prior to issuing the directions or with respect to directions. Sen. Al-Rawi: Sen. Stewart, I just want to be a little more careful in that, I would prefer a little bit better wording than that. Mr. Chairman: So, we will defer that, we would, come back to 14 and you would proffer an amendment which would be 14(3). Correct? Sen. Ramlogan SC: Yes. Sen. Prescott SC: Mr. Chairman, before you leave, clause 14. Mr. Chairman: Yes, Sen. Prescott. Sen. Prescott SC: I want to bring to the attention of the Minister and the Attorney General the provisions of the Tobago House of Assembly Act at sections 26—28. Now, the Tobago House of Assembly as you know is constitutionally established, and these are what are provided in the sections: “26(3) The Government or any relevant body, as the case may be, shall promote the delivery in Tobago of services to the public in relation to the matters set out in the Seventh Schedule”—and it is not necessary to identify those now—“and in so doing shall give due consideration to the views of the Assembly. 27. Where services fall within the responsibility of the Assembly pursuant to section 25(1) or where the Assembly acts as agent of the Government, statutory authority or State enterprise pursuant to section 26(2), the services shall be administered by the Assembly. 28. The Assembly, in pursuance of its functions, shall be subject to the Central Tenders Board Act until such time as there is in effect alternative provision therefor made by the Assembly under section 52.” What these provisions tell me is that the Assembly’s powers cannot be likely interfered with in the way that we are now seeking to do, by simply slotting into clause 14, that public bodies, namely the Tobago House of Assembly shall comply with the directions of the procurement regulator. If we want to reduce the powers of the Assembly, then we ought to do it directly and pointedly under the Act. I do not know that it is simply a question of a side doing. We need to be more direct. 376 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: But you see, Elton, the problem with that, I think we are being direct by expressly naming the THA in the legislation as being expressly subject to it. But the difficulty with that is this, then we would have to go back and amend the T&TEC Act, the WASA Act, the Petrotrin Vesting Act, and every single other piece of legislation that deals with that, and I do not think that is necessary. I mean, when you take, for example, the Freedom of Information Act, which captures the THA as well, we did not make a consequential amendment to the THA Act itself or any other Act, because it bites and it bites as an override without necessarily having consequential amendments, and I think this would likewise bite. Sen. Prescott SC: I think, AG, what I am saying is, if your purpose is to interfere with that constitutionally established body, you ought to give pre- eminence to the body itself. You may say, I am now legislating to reduce the authority of the Tobago House of Assembly and the Tobago House of Assembly Act, because it is in direct conflict of this. Mr. Chairman: What I would like to suggest, Attorney General, because I understand your concern, that we have a whole host of them. We may not even be aware of some of these things. Sen. Ramlogan SC: No. The Integrity Commission, for example, would be caught by this. Mr. Chairman: But if we put a provision which said, “notwithstanding any provision of any law to the contrary this shall apply to”—x, y z. Sen. Prescott SC: There must be some direct relation to it. Sen. Ramlogan SC: Nah, nah, you do not need it. Sen. Prescott SC: I do not know that we could just say this is similar to the T&TEC Act at all. This is the Tobago House of Assembly which is constitutionally established as the other state within the state. Mr. Chairman: Or, if you want to—“notwithstanding any law to the contrary including the THA Act”. Sen. Prescott SC: Then how do you go about— Mr. Chairman: Or including for the avoidance of doubt. Sen. Prescott SC:—dealing with 28 which says, “subject to the Central Tenders Board Act”—which is now about to be repealed—“until such time as there is in effect alternative provision…made by the Assembly”. So, the Assembly has the power to make its own laws, and the Central Tenders Board Act will be repealed, but the power of the Assembly to make its own laws remain. 377 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: I do not think they would be able to—the Assembly making laws would be subsidiary legislation. I do not think they would be able to override primary legislation of this kind. Sen. Prescott SC: Actually, it is the financial regulations that are captured in that section is really— Sen. Ramlogan SC: But even so, the financial regulation will still be the subsidiary legislation, it cannot trump this. Sen. Prescott SC: But not subject to this Act, not subject to this procurement legislation. Sen. Ramlogan SC: No, we are now going to make them subject to this Act. Sen. Prescott SC: I think you should look at it again. It cannot be subject to this procurement legislation. Sen. Ramlogan SC: Sen. Vieira, what is your take on this? Sen. Vieira: I am just reading the Interpretation Act and section 5 talks about procedure: “Where a written law passed or made after the commencement of this Act confers any jurisdiction on a Court or other Tribunal or extends or varies the jurisdiction of a Court or Tribunal, the authority having for the time being power to make rules or orders regulating the practice and procedure of that Court or Tribunal may make such rules and orders, including rules or orders regulating cost fees”—bla, bla, bla—“in the exercise of the jurisdiction so conferred, extended or varied: and it is not necessary for any written law to confer power on the authority to make any rules or orders for those purposes.” Now, I seem to remember there was a similar clause like this that extends across, so I am going to find it in the Interpretation Act. I think, that once we named the Tobago House of Assembly as a public body, we do not have to go now and amend the Tobago House of Assembly Act. It would apply across the board. Sen. Ramlogan SC: I think so. [Interruption] Chair, the Government is really—we rest on it. I think we are comfortable with that. Sen. Prescott SC: I would want to see that, yes Sen. Ramlogan SC: Let us press on. Sen. Dr. Tewarie: All right, let us go now. 378 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: Rolph, you do not have anything to say on that? Eh? Sen. Dr. Balgobin: No. Mr. Chairman: So, we have deferred clause 14. [Interruption] Oh, you are ready on clause 14? Sen. Prescott SC: I am recommending that it be deferred, if you do not mind, Chair. Sen. Al-Rawi: I concur with the recommendation for deferral on the basis that we can find the section in the Interpretation Act that may assist us. Mr. Chairman: I was not on that. I was on the question of—I understand that the Chief Parliamentary Counsel was going to draft a particular clause relating to appealing and stuff like that. Sen. Al-Rawi: Sorry, I heard you ask him if he was ready. Sorry, perhaps I— Sen. Prescott SC: Might the CPC be asked to consider whether there is any impact on the Tobago House of Assembly Act? Not just any—would he feel satisfactory? Sen. Ramlogan SC: No, and CPC has guided us that he does not think that there is need for any consequential amendment. Sen. Prescott SC: See, he may think again. Sen. Al-Rawi: I agree. Sen. Ramlogan SC: Well, you know— Sen. Al-Rawi: AG, is this the— Sen. Ramlogan SC: No, but, guys, listen, we have considered this and we would like to make some progress on the matter, because I really do not agree on this point and I think we should move on. I am not going to be persuaded on that. Mr. Chairman: You were seeking to have the CPC draft the clause, is that ready, in which case I would like— Sen. Ramlogan SC: Yes, we have a 14(3)— Mr. Chairman: Clause 14(3), yes. Sen. Ramlogan SC:—and 14(3) will read, “a public body shall be accorded”—well I think this is what Sen. Vieira wants to know. It is actually what Sen. Vieira had dictated out. Mr. Chairman: “An adequate opportunity to be heard.” 379 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: Yes, “an adequate opportunity to be heard and make representation”—you have that? And then (4), “a public body that is aggrieved by a direction”—actually I do not like this, you know. Let us— Sen. Al-Rawi: You are aggrieved—you commit an offence… Mr. Chairman: So, we would defer 14 and we would come back to it at the end of the debate, at the end of the—when we have completed. Sen. Al-Rawi: And CPC while are—[Interruption] Clause 15. Question proposed: That clause 15 stand part of the Bill. Sen. Ramlogan SC: Mr. Chairman, I beg to move that Clause 15 be amended as circulated: “15(3) Delete the word “four” and substitute the word “six”. Sen. Al-Rawi: Mr. Chairman, I had some concerns about the regulator presiding and then in default, the deputy chairman, and I was wondering if this is where we were going to have the inclusion of someone else acting in their stead, so that the business is not stymied—emergency situations. Mr. Chairman: We are talking about the deputy taking on the roles— Sen. Young: If I may, Mr. Chairman, I have some language to suggest here and it comes in at 15(2), “the regulator shall preside at meetings of the board and in the absence of the regulator the deputy chairman shall preside”—and I suggest this language or words similar to this, “and in the absence of both, the member of the board elected to preside by the other members present.” So, in other words, if the regulator, deputy chairman are not there, you are saying, “and in the absence of both, the member of the board elected to preside by the other members present”—and then similarly at subclause (3), “the quorum of a meeting of the Board shall be four members including, either, the regulator or the deputy chairman or the member of the Board so elected to preside in their absence.” Hon. Senator: Correct. Mr. Chairman: So, that is to 15(2). Sen. Young: And (3). 10.10 p.m. Sen. Al-Rawi: That is 15(2), so, the language to add at the end of 15(2): …and in the absence of both, the member of the Board elected to preside by the other members present. 380 Public Procurement Bill, 2014 Tuesday, June 10, 2014

And then at 15(3), the language to add: …or the member of the Board so elected to preside Sen. Prescott SC: Or appointed to preside. Sen. Al-Rawi: Or appointed to preside, or you could use the same tail language as you did in (2). Mr. Chairman: I would suggest under 15(2). Sen. Young: Yes, I was going to say under 15(2) …or the member of the board under 15(2). Mr. Chairman: In terms of the principle, in the absence of the deputy chairman and regulator, do we have somebody else to preside? Sen. Ramlogan SC: That is not a problem. That is fine. We had agreed on that. That is fine. That is a good suggestion. That is fine, Sir. Mr. Chairman: Can I read the language for your consideration? We were at (2), adding on at the end of it: …and in the absence of both, the member of the Board elected to preside by the other members present. Then, at (3)— Sen. Ramlogan SC: Can I just ask something, though? If they are both absent, they still have a quorum, right? Sen. Al-Rawi: Yes. Sen. Ramlogan SC: Right, okay, good. That is fine. Mr. Chairman: I presume it is provided you did have a quorum. Sen. Ramlogan SC: Right, sure. Mr. Chairman: And after (3), at the end of (3): …or the member so elected to preside under 15(2). Or “under subsection (2).” Sen. Ramlogan SC: That is fine. Sen. Robinson-Regis: Mr. Chairman, could you just repeat the composition? Mr. Chairman: Sure. There are two amendments being proposed. At 15(2), to add at the end after “preside” …and in the absence of both, the member of the Board elected to preside by the other members present. 381 Public Procurement Bill, 2014 Tuesday, June 10, 2014

And at the end of (3), to add: …or the member so elected to preside under subsection (2). Sen. Robinson-Regis: Thank you. Question put and agreed to. Clause 15, as amended, ordered to stand part of the Bill. Clause 16. Question proposed: That clause 16 stand part of the Bill. Sen. Ramlogan SC: Clause 16 is amended as circulated: “Delete the word ‘only’ and insert after the word ‘Board’, the words ‘except that the chairperson of a committee shall be a member of the Board’.” Mr. Chairman: Sen. Al-Rawi? Sen. Al-Rawi: I should look at the circulated amendments first. Sen. Prescott SC: While Sen. Al-Rawi considers it, I would like to— Mr. Chairman: Sen. Prescott SC? Sen. Prescott SC: Thank you. Clause 16(3) appears to suggest that committees may be made up entirely of persons who are not members of the board. I am enquiring as to— Sen. Ramlogan SC: No. but it says “may include”. Sen. Prescott SC: It says “may consist”. Mr. Chairman: In the track changes, you would see an exception— Sen. Dr. Tewarie: An amendment that a chairperson of the committee shall be a member of the board. Sen. Al-Rawi: I have no problem with that, except— Sen. Young: I have a more fundamental issue where we see at 16(1) “The Office may appoint such committees…” I would like to suggest that we say “the board” as opposed to “the Office”. When you look at what the office comprises, I mean the office is not necessarily the board. So, I would just suggest that at 16(1) we say the board may appoint. Sen. Ramlogan SC: Sure, that is fine. 382 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Sen. Drayton? Sen. Drayton: If I may— Sen. Al-Rawi: Mr. Chairman, I have an issue that perhaps the Minister can help me with. The committee can exercise all of the powers of the office as may be delegated to it in writing. It can perform duties of the office as assigned to it, but the identity of the persons who comprise the committees is not gazetted, the public is not aware. They have far-reaching powers inside of here and I was concerned that we may be diluting the excellent work of the President in having appointed well-scrutinized people, having had the consultation with the Prime Minister, with the Leader of the Opposition and then just opening the back door entirely. Also, the terms and conditions and remuneration for members of the committee were of some concern for me as well. Sen. Ramlogan SC: Mr. Chairman, I do not think that those matters require the substantive law. One must have some flexibility in these matters and the procurement regulator would, you know—the board will appoint. Mr. Chairman: Well, I take it when the President appointed the members, he thought they had the integrity, such that when they appointed committee members— Sen. Ramlogan SC: We are content to leave this clause as is. Hon. Senator: Mr. Chairman, everywhere there is “Office”, it changes to “board”. Mr. Chairman: I was just going to say that. Sen. Ramlogan SC: Subclause (4), you change “Office” to “Board”. Hon. Senator: All right, I have that. Sen. Ramlogan SC: And at (5). It is (4), (5) and (6). It is the last word in subclauses (5) and (6). Mr. Chairman: Sen. Drayton? Sen. Drayton: The question I want to raise, as I had an amendment—I agree in principle with what the Minister has recommended here—are these subcommittees of the board? Sen. Dr. Tewarie: Yes. Sen. Drayton: So, they are subcommittees of the board? 383 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Hon. Senator: Yes. Sen. Drayton: And, if it is a subcommittee of the board, why are we then restricting only one member of the board to sit on a committee. If this is a committee of the board and we have— Sen. Dr. Tewarie: Yes, but it is an issue of resources. We see the problem replicated everywhere. Sen. Drayton: But that is up to the board to decide. This is not a subcommittee of the board. This should be up to the board. Sen. Ramlogan SC: Which subclause are you on, Senator? Sen. Drayton: Well, 16; I asked whether this is a subcommittee of the board, because a subcommittee of the board— Sen. Ramlogan: Sure. Sen. Drayton:—and a subcommittee just in law are two different things. Sen. Ramlogan SC: Yes. Sen. Drayton: So, I need clarification. Is this a subcommittee of the board? Sen. Ramlogan SC: It is, yes. Sen. Drayton: How do we arrive at that? Sen. Ramlogan SC: Because in 16(1) it says the board may appoint such committees as it considers necessary. Sen. Dr. Balgobin: No, no, the thing is this—Mr. Chairman, I am— Mr. Chairman: It is a subcommittee of the board but not of board members, necessarily. Sen. Ramlogan SC: That is right. Sen. Al-Rawi: One board member, co-opted members. Sen. Ramlogan SC: Yes. Mr. Chairman: Sen. Dr. Balgobin? Sen. Dr. Balgobin: It is not a subcommittee of the board in the way that we would typically understand it, which is that it comprises of a smaller number of board members. Sen. Dr. Tewarie: It is a committee to support the work of the board. 384 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Balgobin: It is a device to supplement— Sen. Dr. Tewarie: That is right. Sen. Dr. Balgobin:—the capacity of the office. Sen. Dr. Tewarie: That is right. Sen. Al-Rawi: By co-opting members. Sen. Dr. Balgobin: So, the normalizing feature inside of there would be the bridge—that would be the chairman of the committee—who, of course, links back to the main board. Sen. Ramlogan SC: Yes, that is right. Sen. Al-Rawi: Who is a board member. Sen. Dr. Balgobin: Because board members, presumably, will all be ex officio members of the committees but no committee member can sit on the board unless they are a board member. Sen. Ramlogan SC: Correct. Sen. Dr. Balgobin: That having been said, but given the massive amounts of money that they would be looking over—in terms of procurement and so on—it is probably wise for you to define what is fit and proper for a committee member. Sen. Al-Rawi: Yes. Sen. Dr. Balgobin: So, you ought to, at least, put that hurdle in here which says a committee member must be fit and proper and that can be defined by the regulations. Mr. Chairman: What if he satisfies the same test as a board member; in other words, he has the qualifications of. Sen. Drayton: Yes. Sen. Dr. Balgobin: Yes, he can do, but we may wish to have other requirements for that person which are based on the committee involved. Sen. Ramlogan SC: Can I just suggest this—I hear you. In subsection (3): “Membership of a committee may include or consist:—of fit and proper persons— Right? 385 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Balgobin: Yes. Sen. Ramlogan SC: “who are not members of the Board”. Right? So, if we put that in, that would be fine. Sen. Dr. Balgobin: The regulations have to define what is fit and proper. Sen. Ramlogan SC: Sure, that is fine. Sen. Dr. Balgobin: What a fit and proper definition would be for a committee member. Sen. Al-Rawi: AG, just a question: That goes a long way to satisfying some of the concerns I have about the back door being open. Sen. Ramlogan SC: Yes. Sen. Al-Rawi: It is usual, in legislation, to define what is fit and proper. It is almost inevitably the case. Mr. Ramlogan SC: No, but in this case we can put it in the regulations because we have it there. So, once you put it in the substantive law you can flesh it out in the regulations. If it was not in the substantive law, you have a problem. Sen. Al-Rawi: Do we want to prescribe that fitness and propriety will be set out in the regulations? Sen. Ramlogan SC: Well, we said that. So: Membership of a committee may include or consist of fit and proper persons who are not members of the Board except that the chairperson of the committee shall be a member of the Board in accordance with Regulations. Sen. Young: It has to be fit and proper as defined by. Sen. Al-Rawi: As defined or as prescribed. Sen. Ramlogan SC: Even if you do not put it in I think it is okay, but, I mean— Sen. Al-Rawi: I will prefer to put it in because it is subject to negative resolution of the Parliament. Sen. Ramlogan SC: All right. Mr. Chairman? Mr. Chairman: So, after “persons” you want to say “as prescribed in Regulations”? 386 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: Yes. Sen. Prescott SC: Such fit and proper persons? Sen. Young: No, it is fit and proper persons, as prescribed. Sen. Ramlogan SC: Fit and proper persons as prescribed by regulations? Mr. Chairman: By regulations. Hon. Senator: Such fit and proper persons. Sen. Ramlogan SC: Such fit and proper persons as may be prescribed by regulations. Sen. Young: Yes, as may be prescribed. Mr. Chairman: As prescribed, I would say. The “may” tends to—[Crosstalk] I am not hearing you, Sen. Prescott SC. Sen. Prescott SC: It is the “fit and proper” that has to be defined, not the person. Mr. Chairman: Correct. Sen. Prescott SC: So, it is “consist of persons who are fit as described”. Mr. Chairman: So, “who satisfy the fit and proper criteria”? So, can I read that suggestion? Sen. Ramlogan SC: Sure. Membership of a committee may include or consist of persons who satisfy the fit and proper criteria as prescribed by Regulations who are not members of the Board except that the chairperson of a committee shall be a member of the Board. I would just like to say “as prescribed by regulations”. Perhaps you need to put a comma there, I take it. I am just concerned about who are not members of the board. Question put and agreed to. Clause 16, as amended, ordered to stand part of the Bill. Clause 17. Question proposed: That clause 17 stand part of the Bill. Sen. Drayton: Could I just raise a question under 17(2)? It says 387 Public Procurement Bill, 2014 Tuesday, June 10, 2014

“A member of the Board who fails to disclose his interest in accordance with subsection (1)…” But 17(1) says: “A member of the Board or a committee who has a direct or indirect interest…” So, what if a member of the committee fails to disclose in accordance with— Mr. Chairman: So, you want to add on “of the board or committee”? Sen. Drayton: Well, it should be. Mr. Chairman: Yes. Sen. Al-Rawi: Yes, I wanted to raise the same point, but I also wanted to introduce into subclause (1) that I do understand why we must wait until at the meeting. One can disclose an interest as soon as is practicable and in writing. Sen. Dr. Tewarie: I considered that, but based on my own experience, you declare your interest at the board meeting and there are conventions on a board which require if you declare a conflict of interest that you simply leave the room. Sen. Al-Rawi: Yes, but because the meetings may be ad hoc and may be just once a month, et cetera, I would think it appropriate, particularly in circumstances where you may have round-robin decisions, et cetera, that there is an onus upon you, which is similar to the FIA, insurance and securities legislation where the minute that you know you have a conflict of interest that you disclose that in writing addressed to the board. Sen. Dr. Balgobin: Minister, let me just say here; the board is mandated to meet monthly and, presumably, you would have papers distributed beforehand and it is probably a good practice if advance warning is given of what is to be considered that a member of the board—so as to avoid the stain of allegation—to declare as soon as he is aware, his interest or his potential conflict, as opposed to receiving the papers, receiving all of this information and then presenting himself at a board meeting and saying I may be conflicted here. 10.25 p.m. Mr. Chairman: There is one further convention, as I understand it. What a board member should be doing is, when he joins the board he gives a note to the secretary, look I belong to X, Y, Z and P, and if any matter relating to these entities arises, then I hereby declare that I have a conflict of interest. But these are all conventions which is what—I do not know— 388 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Balgobin: Those two, yours and mine, really ought to apply. That is, there ought to be a check before papers are sent out and the onus should also be on the person. Mr. Chairman: But getting down into the nitty-gritty, you have to send out an agenda with full papers, which is really what you get down to saying. I cannot imagine—[Interruption] Sen. Al-Rawi: You see, this business is as serious as the financial legislation that we have. My suggestion is that the onus is put upon the board member to declare an interest as soon as is reasonably practicable, as soon as he becomes aware of it. Secondly, I would think that it would be important for us to qualify the failure in subclause (2), to have it as “knowingly and wilfully” or “knowingly”, because there may not be something that you are aware of, it may turn out to be there, but you did not knowingly breach it, and I would think that it is an important balance from a constitutional perspective to qualify the failure. Sen. Dr. Tewarie: What do you want to amend it to? Sen. Al-Rawi: To put “knowingly or wilfully”. Sen. Dr. Tewarie: No, what do you want to amend the clause to? Sen. Al-Rawi: “A member of the Board who”—knowingly or willingly— “fails to disclose his interest…”[Interruption] Mr. Chairman: And before that we had— Sen. Dr. Tewarie: Do not make it negative, “nah”, just make it to declare your interest. Sen. Al-Rawi: No, well that is the usual language to qualify an offence. Sen. Dr. Tewarie: “Eh.” Sen. Al-Rawi: I said, I just gave you the usual language to qualify an offence. Sen. Dr. Tewarie: Are you talking about 17(1)? Sen. Al-Rawi: No, 17(2). I dealt with 17(2) first. In 17(1), I would say, that: “…shall disclose the fact of his interest”—as soon as is practicable— Sen. Dr. Tewarie: Or “at the earliest opportunity”. All right, let us leave it “at the earliest opportunity”. 389 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: Do you want to put it in writing? Sen. Dr. Tewarie: What? Sen. Al-Rawi: Do you want him to have that disclosure in writing; shall disclose in writing? Sen. Dr. Balgobin: No. [Crosstalk] He may be in a place where he can make a call faster. Sen. Al-Rawi: Okay. Sen. Young: But whoever is the officer they will have to record it. Sen. Dr. Balgobin: Well, yeah, I mean this is usually done, you call the chairman and you—[Interruption] Hon. Member: I agree with you. It should be—[Interruption] Sen. Dr. Balgobin: You can follow up with a letter after. Sen. Dr. Tewarie: “At the earliest opportunity and shall not participate”. All right? Mr. Chairman: And then when you came to subclause (2) there was a suggestion we needed to add after, “Board” or “a committee to”— Sen. Al-Rawi: Correct. Consistent. Mr. Chairman: Consistent with subclause (1). And then after, “who knowingly or wilfully”. Sen. Dr. Tewarie: What is the thing about knowingly or wilfully? Sen. Al-Rawi: It is the state of mind. It is to give the balance there. Sen. Dr. Balgobin: Knowingly or wilfully fails to disclose, because very often you know, you may find yourself in possession of papers and you may be conflicted, but you did not know that those papers were coming to you. Sen. Dr. Tewarie: This is for (2). Hon. Member: For (2). Sen. Al-Rawi: Yeah. [Crosstalk] Sen. Dr. Tewarie: Okay, we accept those. Do you have those? Mr. Chairman: Do you have it? You need it to be read again? 390 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Macintyre SC: Yes, please. Sen. Dr. Tewarie: 17(1) and (2). Mr. Chairman: 17(1), starting on line 3: “…shall disclose the fact of his interest”—at the earliest opportunity. And we are taking out “the meeting of the Board or committee”. Delete. And then in 17(2), you got me? Mr. Macintyre SC: “Hmmm”. Mr. Chairman: After “Board”, you are inserting, “or a committee” and after “who”, you are inserting “knowingly or wilfully”. Question put and agreed to. Clause 17, as amended, ordered to stand part of the Bill. Clause 18. Question proposed: That clause 18 stand part of the Bill. Sen. Al-Rawi: Mr. Chairman, I wonder whether we wanted to prescribe the office as appointing the staff or the board? Mr. Chairman: So is it the board we are having? Sen. Dr. Tewarie: No, well, we use the office throughout as the office of the procurement regulator. I basically have to ask the CPC if we have to begin to change all of this now, I cannot—[Interruption] Hon. Senator: Right in 16 we have the office in (4). Sen. Young: No, we changed all of that. Sen. Ramlogan SC: What is the problem with 18? Sen. Dr. Tewarie: Can this stay, the office? Sen. Young: I suggest it stays as office, because you would not want to burden the board with making the appointments. So leave it as the office, from an employment law perspective. Question put and agreed to. Clause 18 ordered to stand part of the Bill. Clause 19. Question proposed: That clause 19 stand part of the Bill. 391 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: Mr. Chairman, may I enquire as to the limitation on secondment in subclause (3)? Mr. Chairman: Is the extent of it, you have a concern with? Sen. Al-Rawi: Yeah, is it just the standard approach in the public service? Sen. Dr. Tewarie: Yes, it is the standard approach. Sen. Al-Rawi: Okay, and—[Interruption] Sen. Dr. Tewarie: You can only be seconded for five years. Sen. Al-Rawi: And that being the case, does one have the option to demit from the previous office and take up the employment into the new entity. Sen. Dr. Tewarie: No, you just go for five years and you go back to your business, wherever you were. Sen. Al-Rawi: No, well, I am looking at retaining. Sen. Ramlogan SC: Yes, you can, you have to resign and then— [Interruption] Sen. Al-Rawi: You can resign? Sen. Ramlogan SC: Yeah, you can. Sen. Al-Rawi: And in those circumstances, would the pension benefits, et cetera, be preserved, yeah?

Sen. Ramlogan SC: Yeah. Sen. Al-Rawi: Okay. Question put and agreed to. Clause 19 ordered to stand part of the Bill. Clause 20. Question proposed: That clause 20 stand part of the Bill. Sen. Young: Sorry, in relation to clause 20, I just want to make it clearer. So what I would like to suggest is that for 20(1) it should read: “The Office shall, within five years of the date assent to this Act”—ensure that a pension plan is established. 392 Public Procurement Bill, 2014 Tuesday, June 10, 2014

So it just makes it clear that it is not them who must, because as it reads now, they are the ones who establish the pension funds, and the burden rests with them, and I think the language I have suggested or similar language makes it clear that they can go to a private pension fund plan, et cetera. Sen. Ahmed: Standard pension language, Chair. Mr. Chairman: Yeah, I hear you. Sen. Al-Rawi: Could you guide us on that please. Sen. Ahmed: It is not saying that they must establish an office. Sen. Al-Rawi: It says, the office shall, the office must do it. And it may be not profitable to do it elsewhere. [Crosstalk] Sen. Ramlogan SC: Saying that the office shall establish the fund, it does not mean that the office must do it itself. It does not mean that. Sen. Young: That makes it clearer. Sen. Ramlogan SC: It means that they must establish it. I think this is fine guys. Sen. Dr. Balgobin: I have a question. I was confused about why we had to put this in here in the first place? Sen. Al-Rawi: For the superannuation particulars, I would imagine. Sen. Dr. Balgobin: But the obligation of any responsible employer now is to have a pension plan. Sen. Dr. Tewarie: Yeah. Sen. Al-Rawi: I would want it specifically included. But may I ask this question, as to the staff: is there an exclusion of board members from the participation in the pension plan? Hon. Member: Board members are not staff. Sen. Al-Rawi: I am asking. Sen. Ramlogan SC: No, they are not staff, so they are excluded. Sen. Al-Rawi: I know, I know, but I am raising the point that it is an enticement, particularly, if you are going to invite people to accept an offer like this, that there be at least some better term and condition, and I was wondering whether we—[Crosstalk] 393 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: “Nah, you cyah go there.” Sen. Dr. Tewarie: I was wondering if the Minister of Finance and the Economy—[Crosstalk] “Nah man, Faris. Come on, man.” Question put and agreed to. Clause 20 ordered to stand part of the Bill. Clause 21. Question proposed: That clause 21 stand part of the Bill. Sen. Vieira: Before you go to clause 21, I had circulated a suggestion— Mr. Chairman: Yes, that is what I was pointing to. Sen. Vieira: Which is a new clause—but talking about limiting personal liability for the board and the regulator. I do not know if you saw it in my— [Interruption] Mr. Chairman: The problem is, if it is going to be an entirely new clause, we are going to have to do it after. If it is part of an existing clause, it—[Interruption]

Sen. Ramlogan SC: You want to put it in clause 20 subclause (3)? Sen. Vieira: I am entirely in your hands. I just feel that there should be such a clause. I am indifferent as to where—

Sen. Ramlogan SC: Clause 20 deals with establishment of a pension fund. So you cannot put it there. Mr. Chairman: So we will have to come back to it. Sen. Vieira: It can go after, I do not mind. Sen. Ramlogan SC: We will do it after. Mr. Chairman: We can do it anywhere, the sequence requires us to do it at the end.

Sen. Ramlogan SC: Yeah. Sen. Vieira: I am guided. Sen. Al-Rawi: I was wondering whether the funds of the office could be improved by any funds collected for breaches of the Act or— Sen. Ramlogan SC: No, we are fine with this. 394 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: Do not complicate matters. Sen. Ramlogan SC: No, this is fine. Sen. G. Singh: You will incentivize abuse. Sen. Dr. Tewarie: You create a police state there. Sen. Al-Rawi: We are fine from the Proceeds of Crime Act, that is all. Sen. Ramlogan SC: We are fine with it. Sen. Al-Rawi: So you have answered the question. Question put and agreed to. Clause 21 ordered to stand part of the Bill. Sen. Al-Rawi: Sen. Vieira had an amendment; are we considering that, clause 21? Mr. Chairman: We deferred that. Sen. Al-Rawi: That was the new clause 20. He has a proposal for clause 21 itself. Sen. Vieira: Well, when I raised it at the meeting during the tea break they were not very keen on it. So I have withdrawn it. Sen. Al-Rawi: Okay, I was not aware that he withdrew it. Clause 22 ordered to stand part of the Bill. Clause 23. Question proposed: That clause 23 stand part of the Bill. Sen. Al-Rawi: Why, is the question? Why shall the Office be exempt from these duties? Sen. Ramlogan SC: It is not a matter; it is a policy that the Government took that they should be exempt from the duties, having regard to the high nature of office. Sen. Al-Rawi: But why? Members of Parliament are not exempt. Why are they exempt? Sen. Ramlogan SC: Members of Parliament are not—[Interruption] Sen. Al-Rawi: Just give me an example. Sen. Ramlogan SC: Members of Parliament are not going to be procurement regulators and working in this office either. I mean, the office is exempt— [Interruption] 395 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Yeah, it is not individuals. Sen. Al-Rawi: Where else is this exemption matched? Sen. Ramlogan SC: You have that a lot, you know, Faris. Many places you have that. But in any event, that is a policy decision. I mean, you know. Mr. Chairman: But it points to the office, not the individual. Sen. Ramlogan SC: No, the office. Sen. Al-Rawi: No, I understand that, but I was looking at exemptions from motor vehicle taxes for instance. And it is not a prorated tax for instance. Sen. Ramlogan SC: No it is a full-out exemption. The Ministries have it, the Integrity Commission has it, a lot of bodies have it. Sen. Dr. Balgobin: What does that mean, Attorney General? Question put and agreed to. Clause 23 ordered to stand part of the Bill. Clause 24. Question proposed: That clause 24 stand part of the Bill Sen. Ramlogan SC: As amended and circulated. “24(3) A. Delete the words “fifty thousand dollars” and substitute the words “two million dollars” B. In subclause (4), insert after the word “Constitution”, the words “whose sole business shall be procurement matters”. Mr. Chairman: That clause 24 be amended as circulated. Do you know whether Sen. Drayton is still pursuing— Sen. Young: Whilst figuring that out, Mr. Chairman, may I suggest an amendment at: “24(1) The Regulator shall submit an annual report to Parliament no later than ninety days after the expiry of the financial year to which that report relates and”—shall—“provide the Minister…” Just add the word “shall” before “provide the Minister…” Sen. Dr. Tewarie: Where is this? Sen. Young: At 24(1). 396 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Line 3. Sen. Al-Rawi: May I enquire in relation to clause 24, which also arises with respect to the requirement to publish within six weeks all procurement projects coming after the budget. 10.40 p.m. What is the sense of providing this annual report and providing certain things after a budget? It means that we are always going to be one year in arrears with respect to procurement issues. Sen. Dr. Tewarie: No, no. Show me the clause. Sen. Al-Rawi: Okay, 24. So, we “shall submit an annual report to Parliament no later than ninety days after the”—expiration—“ of the financial year to which that report…” So that financial year is September, the budget is in September, so we are getting it after the budget. The financial report speaks to the value for money issues. It takes the Government in a very good direction towards a whole of Government value for money approach accounting system as opposed to cash accrual basis systems. But it should really be 90 days before the budget comes so that there is meaningful interrogation by the finance committee and other entities. Sen. Dr. Tewarie: No, they are not directly related. I understand what you are saying about the relationship, but you have to work with the financial year and you have to give them time to do it. Ninety days is a pretty tight slot. Sen. Al-Rawi: But the financial year, hon. Minister, is staggered straight throughout Trinidad and Tobago. We have December, we have September, we have April, so why choose September, why bring it after the budget if we are trying to synchronize value for money consideration and usefulness by a Parliament in particular? The most useful place to consider the value of $63 billion worth of expenditures is in the budget. Sen. Prescott SC: I am supportive of what Sen. Al-Rawi is saying, that we really ought to precede the budget. Mr. Chairman: I am trying to get the idea about how it is tied to the budget. The regulator submits an annual report to Parliament—[Interruption] Sen. Al-Rawi: Because the year-end later on is prescribed as September, Mr. Chairman. 397 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Where, in this clause? Sen. Al-Rawi: Later in the Bill. Mr. Chairman: 25. Sen. Al-Rawi: 25. Mr. Chairman: Oh, I see. Sen. Prescott SC: So we are saying change the year end. Mr. Chairman: So really what you may want to do is to—you cannot report before your financial year ends. Sen. Al-Rawi: Yes, my point is with the financial—[Interruption] Mr. Chairman: You could move your financial year. Sen. Al-Rawi: Correct. I raised the two in one context, I am saying the value. Sen. Dr. Balgobin: But if you change the financial year, how—[Interruption] Sen. Prescott SC: Then you report before the budget. Sen. Dr. Balgobin: Yes, but then you are now out of step with the financial year of the State. I had a question. You know, in business we have financial accounts and we have management accounts. One is lagging and one not so much lagging. One is fairly current, and I would have expected that the procurement regulator and the Ministry of Finance and the Economy would have an open and ongoing dialogue as you run up to the—[Interruption] Sen. Dr. Tewarie: You see, I want to say something here. I mean the Minister of Finance and the Economy is corporate—[Interruption] Sen. Dr. Balgobin: Corporation sole. Sen. Dr. Tewarie:—and will continue to have his function, and I want to say that this is the Bill you all wanted. You all wanted a Bill in which the procurement regulator was insulated from the Minister of Finance and the Economy. Sen. Dr. Balgobin: Sure, what is the problem? Sen. Dr. Tewarie: We facilitated that process. On the basis of that, do not tie up the Minister of Finance and the Economy now with this business. Sen. Al-Rawi: But how are we tying up the Minister of Finance and the Economy? Clause 24 here that we are dealing with says: 398 Public Procurement Bill, 2014 Tuesday, June 10, 2014

“(i) The Regulator shall submit an annual report to Parliament…” —not Minister of Finance and the Economy. And what I am saying is, particularly when you jump down to clause 25 which prescribes September as the year end, and clause 27 which says: “...procuring entity shall, no later than six weeks after the presentation of the National Budget, publish on its website...”—“la de la de da”. The value for money approach—I mean, if you look at the English Parliament, in the English Parliament that deals with value for money, whole of Government audits of this type where they analyze procurement systems by way of reports, these things are reported before the budget. So I cannot understand the usefulness of dealing with the procurement year-on-year when you are going to be reporting after the presentation of the budget. Sen. Lambert: Which one of the boards here that report before budget is read in Trinidad and Tobago? Why it is then that the board must report before the end of the financial year? Mr. Chairman: Sen. Balgobin, you had a—[Interruption] Sen. Dr. Balgobin: Thank you. May I just make a small intervention here? I think the work of the procurement regulator and the national budget cycle may not be something we wish to link. Sen. Dr. Tewarie: Well, that is what I said in the first place. Sen. Al-Rawi: But it is linked in the Bill. Hon. Senator: No, it is not. Sen. Al-Rawi: How? How not? Sen. Dr. Balgobin: If I may just make my point. Mr. Chairman: Sen. Balgobin. Sen. Dr. Balgobin: Thank you. What I was getting at is that, for example, there is no reason why the procurement regulator should only report annually. A procurement regulator can, as corporates are required to now, report quarterly, and so you have a steady stream of reports coming through, and so the Minister and the Ministry of Finance and the Economy may wish to rely on that information or they may not need to because they are corporation sole and they have direct access to the information any way from the enterprises and the agencies that they govern. 399 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: That is right. Sen. Dr. Balgobin: So, it is just another stream of information. My own view, Minister, is that once a year may be bulky and onerous, and that we may be better served by having a more frequent reporting timeline in the way that corporations now do it. Traded entities now report quarterly. For example, the publicly traded companies on our stock exchange, they report quarterly and that really gives people a better sense of the current state of play. So you may wish to do it semi- annually if not quarterly. Sen. Dr. Tewarie: No, we are now starting this thing. We have the procurement regulator reporting to Parliament once a year, 90 days after the financial year is over, and we have the procurement regulator flagging anything that is abnormal to the Parliament, to the Ministry of Finance and the Economy and to wherever else it might be necessary depending on the seriousness of the matter. I think let us leave it so. There will be regulations that the procurement regulator may make. The stream of flow of the procurement reports will not be at the end of the year for everything. It will be as the procurements are completed. So, I mean, that is the way we should deal with it. Sen. Drayton: Could I raise 24(3)? Is it not really onerous to report in transactions $50,000? Sen. Ramlogan SC: We have changed that to $2 million. Sen. Dr. Tewarie: We have changed it to $2 million. You had suggested $1 million—[Interruption] Sen. Drayton: Yes. Sen. Dr. Tewarie:—some Senators had suggested $5 million, we suggested $2 million because that is the prevailing limit now. Sen. Drayton: And because the regulator in any event can ask for a report for amounts under that if there is reason to ask for it. Sen. Ramlogan SC: We are okay with that. Sen. Al-Rawi: Mr. Chairman, in relation to the content of the report set out in subclause (2), the subclause (2)(c)(v) which is on page 19 of the Bill, and subclause (c)(iv) of that as well, the number of unfulfilled procurement contracts, that is coming back to the definition section where I raised the issue of unfulfilled procurement contracts and I wondered whether framework agreements should be included here. Sen. Dr. Tewarie: Well, I mean, by the interrogation of the issue before, your answer is clear, yes. 400 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: No! “Unfulfilled procurement contracts” is specifically defined and does not include framework agreements, and when we were discussing it, the suggestion made was that when we came to the substantive section that we will look at, including it there. So I am raising it now. And then with respect to (v): “with respect to the procurement for a project, a brief description, the awardee, the value, the scope of works and the expected deliverables...” Sen. Dr. Tewarie: Could I correct you on one matter? Sen. Al-Rawi: Sure. Sen. Dr. Tewarie: You suggested you were not sure and we talked about the matter that unfulfilled contracts did not include framework agreements. When we look at the framework agreements, I think it will be reasonable to say that the unfulfilled contracts also include framework agreements, all contracts that are unfulfilled. Sen. Al-Rawi: “Unfulfilled contract” at page 9, subclause (4), includes a contract that is incomplete, terminated or delayed. And insofar as a “framework agreement”, specifically includes something which is other than a contract, meaning another arrangement, it may not be included. So, I am suggesting that the framework agreement be included either in the definition of—[Interruption] Sen. Dr. Tewarie: No, because that will be differentiating between types of contracts. Sen. Al-Rawi: Well the differentiation was done by creating two categories: framework agreements and contracts. They are not the same. Sen. Dr. Tewarie: No, man. A framework agreement is a methodology. It is a type of procurement. Mr. Chairman: What I understood if I may say this, is that the framework agreement would fall under a procurement contract. And so there is a separate reporting that the number of procurement contracts awarded or varied— Sen. Young: No. But, Mr. Chairman, I think the point is worth taking a second look at. Under “unfulfilled contracts”, if I may address the hon. Minister, through you, by the use of the word “includes” you are accepting that it is not only limited to this. So why can you not say “includes the framework agreement, or/and a contract that is incomplete, terminated or delayed”? Why the hesitation or the reluctance to just add in the word “framework”? Sen. Dr. Tewarie: Why do you want to specifically mention it? 401 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Young: Because as Sen. Al-Rawi has pointed out, when we look at “framework agreement”, it does say, “an agreement”, and as a term of law, hon. Attorney General, “other arrangement” does not fall under contract. Mr. Chairman: If I might say this, when you look at the definition of “framework agreement”, yes, the preamble to it talks about other arrangements, but when you get into the substantive part, it indicates enter into a contract with the supplier or arrangements. What happens is, you will have a master agreement and when they want a particular item, a contract is then made, that becomes a procurement contract, and therefore, becomes reported under a different subclause. Sen. Al-Rawi: Subclause (v) of that clause: “with respect to the procurement for a project, a brief description, the awardee, the value, the scope of works and the expected deliverables of the project;” Was the national security exception required to be specifically stated here? Sen. Dr. Tewarie: Which exception? Sen. Ramlogan SC: No, I think if you have an exception it will be elsewhere. You do not have to put it as a specific exception into the report. Sen. Al-Rawi: Okay. And then my second question in relation to that was whether this will run afoul of any provisions under the Data Protection Act in particular? Sen. Ramlogan SC: No, no. No, it would not. Sen. Vieira: What I thought Sen. Al-Rawi was trying to bring home, and he has been saying it for some time now, is that while framework agreements may contain certain contractually binding obligations, they may not always fall as contracts per se. So you could have contracts and then framework agreements that are two separate strands and he is just suggesting, I think, that in the report perhaps you should include “framework agreements” and not assume that framework agreements necessarily are contracts as defined, because they are separated in the Bill. Sen. Al-Rawi: Or just include it in the definition of “unfulfilled contracts” because there is a distinction between the two, and they may be important distinctions between the two. Sen. Dr. Tewarie: So you want to include under (2)(c), “framework agreements”? Is that what you want? Sen. Al-Rawi: Or in the definition of “unfulfilled contract” it is easier to put it there. 402 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: I think it should be a stand-alone if you are going to do it. I do not think you should link it up with “unfulfilled contract”. Sen. Ramlogan SC: But, Chair, I think the “framework agreement” is something that could lead to a contract. It could. But the point is that because the focus is on procurement and the expenditure of public funds, and because it necessarily does not involve the expenditure of public funds at that point, I mean, you know, it is something that—I do not think we need to put it in there. Sen. Al-Rawi: My simple point is that a “framework agreement” is most usually used in very large circumstances for large procurement matters, and when we look at the definition on page 9 of “unfulfilled contract” it means “a contract”. If it is not a contract, it is not an unfulfilled contract. Sen. Ramlogan SC: What I am saying is that the intention was deliberately to omit framework agreements out of the report because it does not by itself, by and of itself, result in the expenditure of public funds which is the primary mischief that the Bill really intends to focus on. 10.55 p.m. Sen. Al-Rawi: But it may. Sen. Dr. Tewarie: And if it results in a contract, it will be reported. Sen. Ramlogan SC: Yes, for that to happen, it will have to have a contract. Sen. Dr. Tewarie: Okay? Sen. Ramlogan SC: All right. So we are okay as is. Mr. Chairman: But what I would like to raise with you is relative to 24(4)— [Interruption] Sen. Ramlogan SC: Yeah, “The Speaker”. Mr. Chairman:—there is a reference to section 66A of the Constitution. I am pointing out that section 66A identifies certain committees, of course, it would not—can we now amend the Constitution—[Inaudible] Sen. Dr. Tewarie: No. Sen. Ramlogan SC: Oh, I see. Mr. Chairman: Or do we need to have other language to this? Sen. Ramlogan SC: Correct. Sen. Dr. Tewarie: Well, I have to be guided by the CPC. Mr. Chairman: Sure, sure, I am just raising the question. 403 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Dr. Tewarie: But this was raised in the context in which there was a dominant feeling. I got the sense that Members wanted a dedicated— [Interruption] Mr. Chairman: Yeah, I understand. Sen. Al-Rawi: No, that is fine. The question is the consequential amendment to the Constitution this way. Sen. Dr. Balgobin: Chairman, I wish to make a procedural observation and that is, maybe five of us are working on this legislation and the rest of the people not involved at all. I mean, it is nine hours now, you all are sure you want to continue with this thing? Is this the right way for us to go? We have made very good progress. Sen. Dr. Tewarie: No, let us finish this. We are three-quarters on the way, let us go. Sen. Dr. Balgobin: Well, you know we run the risk of galloping through this, now everybody is going to get progressively tired. Sen. Ramlogan SC: No, but we are almost there, you know. Sen. Dr. Balgobin: No, we are not. We are not even halfway there. Sen. Drayton: We are not halfway. Sen. Dr. Balgobin: We have not reached the halfway point. Sen. Al-Rawi: AG, just to tell you, as we said in the debate, we are prepared on this bench to sit with you, in a very limited space, a meeting maximum to—we have done it in securities, we have done it in insurance. Sen. G. Singh: No, we passed that stage already. Sen. Drayton: But can we not come back tomorrow on this? Because, you know, once we get to this stage and this is a serious piece of legislation, you just run the risk of making errors and we seem to be losing Members and this Bill requires a three-fifths majority. Sen. G. Singh: Let us complete until Part III and we will proceed and then we will make an adjustment in terms of time. Let us complete about 25. Sen. Drayton: So we will complete up to 25? Sen. G. Singh: Up to 25. Sen. Drayton: Yeah. 404 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: If I may say this, Minister? The suggestion is relative to 24— [Interruption] Sen. G. Singh: Now, I would ask the Opposition Members, if you have any amendments because you have been doing your amendments on the fly and that therefore—[Crosstalk] No, no, this arose out of the debate and it would make sense, instead of wasting time, as Independent Sen. Drayton did and Independent Sen. Vieira did, for you to circulate your amendments which we have been taking your recommendations and incorporating them into the law. So that therefore, I mean, because to go and just think about the amendment on the spur— [Interruption] Sen. Ramlogan SC: If you cannot get an undertaking, do not adjourn for tomorrow, stay and finish it tonight, unless you get that undertaking. Sen. Drayton: You know, I think it is a question of—we have spent two years in a joint select committee, so much work has been done on this Bill, to continue going at the rate we are going tonight and run the risk of errors, you know, I just do not think it is wise. I mean, I am prepared to sit, it is just not—[Interruption] Sen. G. Singh: I am beyond that right now, I am dealing with the question if there are any amendments that the Opposition wants to proffer, and you have that in writing, that we can take that into consideration so that when we adjourn that we can incorporate that, and you can have a much more successful utilization of parliamentary time instead of the constant abuse. Sen. Dr. Tewarie: Chair, I am asking for an undertaking from the Opposition that from “Part III General Provisions” to the end, because we are taking no amendments from them for the earlier part, that that be brought tomorrow for consideration. Sen. Al-Rawi: We can certainly put amendments into writing, but by tomorrow is impossible. Sen. Dr. Tewarie: Well, we have to come tomorrow, we want to finish the Bill. Sen. Ramlogan SC: No, but Sen. Al-Rawi, that is unfair. You clearly have your amendments because you are making them and reading them out, let us not be disingenuous with this. Sen. Al-Rawi: AG, just to tell you, a lot of it is informed by the policy that you have put up. Mr. Chairman: Senators, if I may draw your attention to the Standing Orders. Standing Order 53(2) says: 405 Public Procurement Bill, 2014 Tuesday, June 10, 2014

“Any proposed amendments of which notice has not been given shall be handed to the Chairman in writing.” So that, therefore, prior to this, there ought to be amendments, if you want to propose them, given in writing. I am just saying that based on what—and I understand you to say, Sen. Al-Rawi, that you could make those available. It obviously would make the proceedings more efficient, effective. Sen. Al-Rawi: You see, Mr. Chairman, all I was saying is that a lot of the policy explanation that the Minister gives, sometimes, obviates the need for any amendment at all. Sen. Ramlogan SC: Not tonight. “Nah, nah, nah.” Sen. Dr. Tewarie: No, from talking, no. Sen. Al-Rawi: Mr. Chairman, we have to also be realistic on the Opposition Bench. Sen. Ramlogan SC: This is a delay tactic by the Opposition now, man. Sen. Al-Rawi: For instance, in the Dog Control Bill, I took great time producing a track change document for the entire Parliament, produced about 100 amendments and they were all ignored, the Government just came here and railroaded the process. So I have to be realistic with my time as well. Sen. G. Singh: No, no, but if it is that is the case, let us continue. Sen. Dr. Balgobin: No, no, wait, hold on; let us not. Chairman? Mr. Chairman: Sen. Balgobin. Sen. Dr. Balgobin: Thank you. One of the things that I am concerned about is having a debate in the committee stage—[Interruption] Sen. G. Singh: Yeah, that is the problem. Sen. Dr. Balgobin:—so we have a second debate, and I think that it is good for us to try to get the amendments out where everyone can judge them by their merits, and then we decide if we are voting for them or not. [Crosstalk] No, no, I am not saying by tomorrow, I am just saying as a general principle—I understand the logic of the Standing Order, I agree with it fully—we are in committee stage now, who has amendments, we should be ready with them—[Interruption] Sen. Ramlogan SC: Clearly. Sen. Dr. Balgobin:—and that is an unfortunate reality thereto. 406 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Ramlogan SC: Yes. We adjourned for a week and everyone in this Senate knew we were coming here to facilitate amendments and to deal with the committee stage. [Crosstalk] And during the course of that week, everyone should have done like Sen. Vieira and Sen. Drayton and put their amendments in writing. Sen. Robinson-Regis: You brought your amendments today. [Crosstalk] Sen. Young: No, hon. Attorney General, we got the Government’s amendments as we started the committee. Sen. Cudjoe: You brought your amendments today. Sen. G. Singh: Mr. Chairman? Mr. Chairman: Yes, Leader of Government Business. Sen. G. Singh: I think that we have reached the stage where Members have worn themselves out significantly, and having regard to the landmark nature of this legislation, I wish to indicate that we want to reach to clause 25 and then we will proceed in a certain way. So let us proceed until clause 25. [Crosstalk] No, no, come, I will tell you, have some patience. Let us proceed. Mr. Chairman: I intend to proceed. So right now, we are on clause 24 and I brought to your attention that at 24(4), you may need to revisit that question of how we refer to the Constitution in order to make an amendment. Sen. Dr. Balgobin: What does that mean? Sen. Al-Rawi: Meaning that the consequential amendment to the Constitution may not be done in legislation of this type and may need to be done by an Act to amend the Constitution. Mr. Chairman: You see, we can end at “and referred to a Joint Select Committee”. I think that is probably as far as you can go. Sen. Vieira: Yes. Sen. Al-Rawi: Yes, particularly with the recasting of what we are doing in the Acts of Parliament legislation. Mr. Chairman: And then the new Standing Orders might treat with it. Sen. G. Singh: Okay, we can go with that. Sen. Dr. Tewarie: We will do that then. Sen. Dr. Balgobin: Chairman, what is the effect of that? 407 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Al-Rawi: That we will be striking the words “appointed—[Interruption] Sen. Dr. Balgobin: Striking the words “appointed under section 66A of the Constitution.” Mr. Chairman: So shall be “referred to a Joint Select Committee”, the question is: should we retain “whose sole business shall be procurement matters”? Sen. Dr. Balgobin: That, for me, is a very important part of this—that it not go into one of the existing joint select committees. Sen. Al-Rawi: No, no, but the point is, the consequential amendment to the Constitution. “a Joint Select Committee”, full stop, and then it can be picked up by the Acts of Parliament which we are currently drafting which can then identify a joint select committee for this purpose. Sen. Dr. Tewarie: No, I do not want that, Chair. I want the committee to be determined by this Bill. Sen. Al-Rawi: Mr. Chairman, I agree with you. My question is whether we are doing it constitutionally. That is all. Sen. Dr. Tewarie: I mean there are ways to deal with the Constitution and it is done by legal formula. So we could find the legal formula to do that. Sen. Al-Rawi: Correct. So what we are saying is the caution raised is only whether we are amending this correctly or do we require an Act to amend the Constitution specifically? Sen. Dr. Tewarie: Chairman, I ask for your guidance on this matter. Does the clause—[Interruption] Sen. Al-Rawi: Hon. Minister—[Interruption] Sen. Dr. Tewarie: Could you let me speak? Sen. Young: I think we have the answer, if you would allow us to answer. This is still at the Bill stage, it has not been proclaimed so it is not law, so we can make the amendment, respectfully, Mr. Chairman. We can put it here and then once the consequential amendment to the Constitution via the Act or whatever is done, prior to it being proclaimed, it can work. Sen. Ramlogan SC: No, no. Sen. Young: All right, well, do it—[Interruption] Sen. Dr. Tewarie: They have a problem over-talking, under-listening and bullying. 408 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Sen. Cudjoe: It is late, Minister, it is late. Sen. Al-Rawi: I think you are tired, Minister, I think you are tired. Sen. Robinson-Regis: Relax, relax. Sen. Dr. Tewarie: I am not tired, I understand you. [Crosstalk] I understand you better than you think. Sen. Al-Rawi: I think you need to calm down. Sen. Young: He is listening to his phone. Sen. Robinson-Regis: Relax, relax. Sen. Cudjoe: Somebody hand him a cup of tea. Sen. Dr. Tewarie: Chair, what I would—will you stop prattling? Sen. Cudjoe: You need to calm down. Sen. Al-Rawi: That is just rude. [Continuous crosstalk and interruption] Mr. Chairman: Senators—[Interruption] Sen. Cudjoe: Seriously, please, know your place. [Crosstalk] Sen. Ramlogan SC: All right, come on, guys, come on. Mr. Chairman: Senators, we are almost at the end here. Thank you. Sen. Dr. Tewarie: Chair, what I wanted to ask was whether the phrase “whose sole business shall be procurement matters” is in any way in violation of the Constitution in stating that. Mr. Chairman: So what I am told is, we can say “refer to a Joint Select Committee whose sole business shall be procurement matters”. Sen. Dr. Tewarie: Well, I would be comfortable with that. Mr. Chairman: You will have, by some other method to determine how that joint select committee will come into being. Sen. Dr. Tewarie: That is right. Mr. Chairman: But we will have to omit the reference to the Constitution. Sen. Dr. Tewarie: Right, okay. So the only deletion is the phrase? Mr. Chairman:—“appointed under section 66A of the Constitution.” Sen. Dr. Tewarie: Right, related to section 66. 409 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Sen. Drayton. Sen. Drayton: This amendment that we say: “The Speaker shall, as soon as practicable…” Why not within 21 days or within two months? And I am making reference to the Exchequer and Audit Act where there is a similar requirement, and in both instances, you are dealing with the public’s purse. In which case, why leave this open because it would mean, probably, 18 months before the report is laid in Parliament. I think there should be some time frame; we are dealing with the public’s purse. Sen. Dr. Balgobin: Put a time. Sen. Dr. Tewarie: Time frame for what? Mr. Chairman: For laying the report. Sen. Drayton: For laying in Parliament. There is an amendment to that effect. It should not be left open. [Crosstalk] That was 24(4). I have circulated an amendment on that. Sen. Dr. Balgobin: So the regulator reports within 90 days after the end of the financial year and the Speaker ought to lay the report within a certain time. Sen. Dr. Mahabir: It is just that, Mr. Chairman, I was wondering whether the Speaker of the House has a similar stricture in other legislations. Sen. Drayton: Yes. Sen. Dr. Mahabir: If he is confined to a particular time period in other legislation then I would say I will support the position. But, if this is the first time we are placing that requirement on him, then I think I would be quite happy with keeping it as soon as it is practicable for him or her. Mr. Chairman: Part of the concern, I imagine, is to be laid in Parliament and there are times when Parliament is not sitting, so that to actually cause it to be laid, I do not want the Speaker to be in default. I take it “as soon as practicable” imposes upon the Speaker a certain duty that you would expect him to comply with. Sen. Drayton: But then why is it stipulated?—I think it is in the Exchequer and Audit Act, the financial regulations where accounts must be—once the Auditor General or the public entity must provide the accounts, it must be laid within—[Interruption] 410 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Laid where? Sen. Drayton: In Parliament by the Speaker. I am fairly sure of that and I think it is in the Exchequer and Audit Act. It is just that it means that if the regulator has three months and this extends anywhere now between another three months, it is a whole 18 months before the report comes to Parliament. 11.10 p.m. Mr. Chairman: What I am told, “as soon as practicable” means the next sitting of the Parliament, that is the convention. Sen. Drayton: If that is the case, and that is the convention— Sen. Dr. Tewarie: That is the convention. Sen. Drayton:—then I have no issue with that. If it is the next sitting, fine. Sen. Dr. Balgobin: If that is what it means, then, okay. Sen. Dr. Tewarie: I would like to read clause 4, sorry, 24(4), as amended: The Speaker shall, as soon as practicable, cause the report to be laid before Parliament and referred to a Joint Select Committee, whose sole business shall be matters related to public procurement and the disposal of public property. Sen. Drayton: But there is another issue I want to raise. Can the Speaker cause something to be referred to a joint select committee? I thought that has to come from the Senate or the House, you know? Can the Speaker cause something to be referred to a joint select committee? Sen. Al-Rawi: Good question. Sen. Drayton: No, I do not think so. Sen. Dr. Tewarie: Does the Speaker not establish a joint select committee? He appoints the first Chairman. Mr. Chairman: What I am told is that as long as the law provides for this, it will stand referred to the Joint Select Committee without further intervention, once the Speaker lays it. Sen. Drayton: So the wording here must—this must be redrafted then, because it says that the Speaker shall as soon as possible. Mr. Chairman: He shall cause it to be laid and referred to— Sen. Drayton: And referred to a joint select committee. 411 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Yeah, and my understanding is that once he lays it, and the law provides that it should go to a joint select committee, it happens without any further intervening action to appoint the Joint Select Committee by Parliament. Sen. Al-Rawi: It will fall under the line Minister, which would then be JSC 1, JSC 2, PA(E)C or PAC. Mr. Chairman: Well, we are asking for a special one. Sen. Al-Rawi: But we are doing it for a special one, I understand that. No, I am just saying what the usual rule is. Mr. Chairman: It is a committee not yet in being. So, when you were saying that amendment just now, is it: “sole business shall relate to public procurement”, as opposed to “relating”? I think you said the word “relating”, but it did not seem to make— Sen. Dr. Tewarie: I said “matters related to public procurement”. Mr. Chairman: Whose sole business shall be matters relating to— Sen. Dr. Tewarie: “related to public procurement and the disposal of public property.” Mr. Chairman: It is suggested that in reference to the Joint Select Committee, we can say “and stand referred”. Okay? So that would bring in the automatic— Sen. Dr. Tewarie:—“and stand referred.” Okay. Mr. Chairman: So Senator, we are introducing after “Parliament” “and stand referred” to introduce that concept, which I am told is already implied, but we will make it specific. Sen. Al-Rawi: Yeah, the Constitution only creates the entities in de minimis, but the Standing Orders create the rest, and the Constitution is silent on the actual referral by anybody. So I think that “stand” should take care of it. Mr. Chairman: So we took “stand”, and the Standing Orders would take care of the question of this committee. Sen. Vieira: And in terms of the concern about “as soon as practicable”, again, I find comfort in the Interpretation Act, which says that: “Where a written law requires or authorises something to be done but does not prescribe the time within which it shall or may be done, the law shall be construed as requiring or authorising the thing to be done without unreasonable delay having regard to the circumstances and as often as due occasion arises.” 412 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: And the convention will say it is the next sitting of Parliament. Sen. Dr. Tewarie: Yeah, the convention is the next sitting. Mr. Chair, we have a further amendment in 5, that is to say 24(5). We want to suggest this amendment: “The Minister may, on the recommendation of the Office, vary the amounts specified in subsection (3), by Order subject to negative resolution of Parliament.” And subsection (3) is the one in which the limit— Mr. Chairman: The $2 million. Sen. Dr. Tewarie: Yeah. Right. Mr. Chairman: So, I have that circulated. Sen. Dr. Tewarie: Sorry. Sen. Al-Rawi: That is in the track change version. Question put and agreed to. Clause 24, as amended, ordered to stand part of the Bill. Clause 25. Question proposed: That clause 25 stand part of the Bill. Sen. Al-Rawi: Mr. Chairman, the question in relation to clause 25 is, whether we can move the year end from September 30 each year to three months prior? Sen. Dr. Tewarie: It will mean everybody having to rearrange their financial year, which will then dislocate it in relation to the budgetary cycle; be reasonable “nah man”. Mrs. Robinson-Regis: It is a question. Sen. G. Singh: I said good answer and a little bit exasperated. Sen. Dr. Tewarie: But we discussed it before. I would not be exasperated if we did not discuss it before. Sen. Robinson-Regis: But it was just a question. Question put and agreed to. Clause 25 ordered to stand part of the Bill. 413 Public Procurement Bill, 2014 Tuesday, June 10, 2014

Mr. Chairman: Do you want to report to us? Sen. G. Singh: Mr. Chairman, in accordance with Standing Order 53(12), I beg to move that progress in this Bill be reported to the Senate. Question put and agreed to: That the progress on the Bill be reported to the Senate Senate resumed. ARRANGEMENT OF BUSINESS The Minister of the Environment and Water Resources (Sen. The Hon. Ganga Singh): Thank you, Mr. President. Mr. President, significant progress has been made on this Bill, and I seek leave to sit again on Wednesday 11th at 11.30 a.m. Question put and agreed to. Mr. President: We have not finished. We have a private Bill, Members. [Crosstalk] BEAUTY SERVICES ASSOCIATION OF TRINIDAD AND TOBAGO (INC’N.) BILL, 2014 Question put and agreed to: That a Bill for the incorporation of the Beauty Services Association of Trinidad and Tobago and for matters incidental thereto, be now read a second time. Bill accordingly read a second time. Bill referred to a special select committee of the Senate appointed by the President as follows: Sen. Fazal Karim (Chairman), Sen. Embau Moheni, Sen. Raziah Ahmed, Sen. Diane Baldeo-Chadeesingh and Sen. Anthony Vieira. [Desk thumping] ADJOURNMENT The Minister of the Environment and Water Resources (Sen. The Hon. Ganga Singh): Mr. President, thank you very much. There is a matter on the adjournment, but by agreement, it is deferred to tomorrow. In those circumstances, Mr. President, at 11.23 p.m., I beg to move that this Senate do now adjourn to Wednesday 11th at 11.30 a.m., for the continuation of the committee stage of the Public Procurement and Disposal of Public Property Bill, 2014. Question put and agreed to. Senate adjourned accordingly. Adjourned at 11.24 p.m.