Public Procurement in Trinidad and Tobago – Getting Ahead of the Game

By the recent proclamation of the Public Procurement legislation, in order for a party to be eligible to participate in procurement proceedings with public bodies in Trinidad and Tobago, which includes entities like the national airline and the Trinidad and Tobago Airports Authority, it must have first been registered with, and be pre-qualified to so do by, the procurement regulator. 

The Application of the New Procurement Legislation

The Public Procurement and Disposal of Public Property Act, 2015, No. 1 of 2015 (the Public Procurement Act) was passed in Parliament and assented to by the President of the Republic of Trinidad and Tobago on 14 January 2015. Since then, several legislative processes have occurred, among other things, to give effect to the administrative infrastructure supporting its implementation, including the establishment of the Office of Procurement Regulation (the OPR). The OPR is the regulatory body with wide monitoring and enforcement mechanisms under the Public Procurement Act. However, the substantive provisions on the actual procurement process only came into force in April 2023.

Prior to the proclamation and entry into force of the provisions of the Public Procurement Act, public procurement in Trinidad and Tobago was governed by the Central Tenders Board Act, Chapter 71:91. The Central Tenders Board Act was expressly repealed by the Public Procurement Act.

The objects of the Public Procurement Act are, among others, to promote the principles of accountability, integrity, transparency and value for money in public procurement and the disposal of public property. The Procurement Act sets out rights and obligations of both public body purchasers and their counterparty suppliers and creates offences with criminal sanctions for certain infringements of the Public Procurement Act. In particular, the Public Procurement Act expressly provides that public bodies must carry out public procurement and disposal of public property in a manner that is consistent with the objects of the Public Procurement Act. 

The Public Procurement Act applies to all public bodies and public-private partnership arrangements receiving public money. It brings all bodies spending public money under a single regulatory framework that covers all stages of the procurement process.

“Public body”, as defined in the Public Procurement Act, includes a statutory body, a state-controlled enterprise and a body corporate or unincorporated entity in relation to any function which it exercises on behalf of the state.  The definition of a state-controlled enterprise includes a company incorporated under the laws of Trinidad and Tobago which is owned or controlled by the state.

The Public Procurement Act defines a “procuring entity” as meaning a public body engaged in procurement proceedings, that is, the acquisition of goods, works or services involving the use of public money,  and which process commences from the planning stage, soliciting of tenders, awarding of contracts, and contract management to the formal acknowledgement of completion of the contract.

“Public money” is defined as meaning money that is received or receivable by a public body; raised by an instrument from which it can be reasonably inferred that the State accepts ultimate liability in the case of default; spent or committed for future expenditure, by a public body; distributed by a public body to a person; raised in accordance with a written law, for a public purpose; or appropriated by Parliament.

It is clear that by these definitions, each of any state-owned airline or national carrier, the regulator of civil aviation operations and the statutory manager of the international airports in Trinidad and Tobago will fall within the definition of public bodies and, in any procurement proceedings, will be subject to the provisions of the Public Procurement Act. 

A Significant Change in Procedure for Contractors

The OPR manages a depository of information, known as the Procurement Depository, which is a web-based application designed to capture, manage and report on information as described in the Public Procurement Act. It is intended to be used by (i) public bodies, and (ii) suppliers or contractors who wish to provide goods, works or services to public bodies.

The Public Procurement Act defines a “supplier” or “contractor” as, according to the context, any party or potential party to procurement proceedings with a procuring entity.

While there is no provision in the Public Procurement Act mandating a supplier’s registration with the OPR or submission of information on the Procurement Depository, the Pre-qualification Regulations provide that a public body can only invite suppliers who are pre-qualified in the Procurement Depository to participate in procurement proceedings.

The Public Procurement Act provides that any procurement of goods, works or services or retention or disposal of public property that is not done in accordance with the Public Procurement Act and any procurement contract or agreement that is not entered into in accordance with the Procurement Act shall be void and illegal.

How to get Ahead of the Game

If you, as a supplier or contractor, wish to take part in public procurement (as defined above), you must first register with the OPR and thereafter submit certain information about your qualifications and experience on the Procurement Depository. The Supplier Record as detailed in the Procurement Depository contains three groupings of information, namely (i) company information; (ii) financial and legal information; and (iii) information relating to safety, equipment and technical competence. For all of the groupings, there are instances in which documents will need to be uploaded by the supplier onto the online application portal.

You should be cognisant of the fact that the Procurement Depository is accessible by the public for viewing and it is imperative to note that a supplier who submits information to the Procurement Depository is responsible for ensuring its accuracy. Once the Supplier Record for the supplier has been created and published, the supplier can make a pre-qualification request in order to become pre-qualified.

Being pre-qualified is important because only suppliers or contractors who have successfully completed the pre-qualification process and have been approved by the procuring entity may be invited to participate in the procurement process. By way of background, “pre-qualification” means the procedure to identify, prior to solicitation, suppliers or contractors who are qualified.

The Value of the New System

The implementation of the Public Procurement Act was much sought after by the business community of Trinidad and Tobago and was the subject to numerous political wrangling from its passing in Parliament in 2015 to its recent proclamation. It had long been the focus of attention, as it promised to bring about essential changes in the realm of public procurement, making it a central point of contention and discussion among policymakers and stakeholders alike.

The Public Procurement Act purports to provide the following advantages to the public procurement process, in keeping with its guiding principles.

Transparency

• Procuring entities are required to publish information with respect to planned procurement activities;
• if a procuring entity cancels a procurement it must provide clear reasons for such action as well as communicate such reason to any supplier or contractor who presented a submission;
• unsuccessful suppliers or contractor who presented submissions are to be informed that another submission was successful within a specified timeframe;
• the procuring entity must publish notice of the award of a procurement contract upon entry into force of the procurement contract; and
• the Procurement Depository is accessible by the public for viewing.

Accountability

• The OPR has the power to investigate any alleged breach of the Public Procurement Act;
• suppliers and contractors also have the right to bring challenge proceedings in situations where they believe that a procuring entity has taken a decision or action that does not comply with the provisions of the Act, and they have suffered or are likely to suffer a loss or injury as a result; and
• decisions of the OPR can be reviewed by the Public Procurement Review Board on the request of a procuring entity or a supplier or contractor.

Integrity

• Communications between suppliers and procuring entities are confidential so as not to prejudice the legitimate commercial interests of suppliers and contractors or impede fair competition; and
• a person shall not be victimised for whistle-blowing contraventions of the Public Procurement Act.

Value for money

• Procuring entities are required to undertake a due diligence exercise on the suppliers or contractors, including determining their legal capacity to contract, solvency, lack of criminal conviction for corruption or fraud, compliance with Trinidad and Tobago tax laws, professional qualifications and competence and that they meet relevant industry standards; and
• procuring entities may reject abnormally low submissions after consideration of further information.

Good governance/OPR

• The OPR is a body corporate which is governed by a board, the members of which are appointed by the President after consultation with the Prime Minister and leader of the opposition;
• the Board is chaired by the Procurement Regulator;
• the Board must further comprise members with specific qualifications and experience in accounting, finance, business management, civil engineering, law, and members who represent the interests of the community, women, youth, religion or civil society; and
• the Board is an independent body which is accountable to the Parliament but which is not subject to the direction or control of any other person or authority in the performance of its functions.

Public Procurement - a Grey Area for the Civil Aviation Industry?

The proclamation of the Public Procurement Act is of particular significance to the aviation industry in Trinidad and Tobago due to the substantial public component of this industry. Central to this is Trinidad and Tobago’s national airline, which is majority-owned by the Minister of Finance of the Government of Trinidad and Tobago, as corporation sole, and the Airports Authority of Trinidad and Tobago, a statutory corporation established by the Airports Authority of Trinidad and Tobago Act Chap. 49:02, which assumes responsibility for the management and operation of the nation’s two international airports – Piarco International Airport and ANR Robinson International Airport.

However, a notable quandary arises when considering the application of Public Procurement Act to the Trinidad and Tobago Civil Aviation Authority. Established as a body corporate under the Civil Aviation Act Chap. 49:03, the Trinidad and Tobago Civil Aviation Authority carries out various functions. These include monitoring and conducting periodic audits to ensure adherence to the standards and practices set by the International Civil Aviation Organization. The Authority is responsible for the provision of air navigation services within the Trinidad and Tobago airspace as well as the Piarco Flight Information Region. Additionally, the Authority is mandated to regulate:

• civil aviation operations in Trinidad and Tobago;
• the operation of Trinidad and Tobago-registered aircraft;
• the operation of maintenance organisations related to Trinidad; and Tobago-registered aircraft.

The complexity of the applicability of the Public Procurement Act arises from the fact that the Board of the Trinidad and Tobago Civil Aviation Authority has established its very own distinct regulations governing the award of tenders and contracts pursuant to Section 24 of the Civil Aviation Act, that is, the Civil Aviation (Tenders Committee) Rules, 2004. Further, Section 24 specifically exempts the Authority, in its performance of its functions, from the provisions of the Central Tenders Board Act.

An element of discretion exists within the Civil Aviation Tenders Committee Rules, allowing the Tenders Committee, with the Chairman's approval, to exempt the procurement of goods or services from the purview of these rules. Such exemptions include situations where there:

• is a limitation of sources of supply of goods or services;
• is an agency;
• is a sole distributorship;
• are goods or services which form part of a system already in use by the Authority; or
• are goods that are spares or replacement parts for other goods already in use by the Authority.

Additionally, the Civil Aviation Tenders Committee Rules expressly provide that in respect of any matter not expressly provided for in the Rules, the Tenders Committee may be guided by the provisions of the Central Tenders Board Act, in so far as those provisions are not inconsistent with the implied policies and directives of the Rules.

You will recall from our introductory paragraphs, that the Public Procurement Act repealed the Central Tenders Board Act.

It follows that in the case of the procurement of goods or services by the Trinidad and Tobago Civil Aviation Authority which falls under the exemptions or for which provision is not made under the Rules, it remains unclear whether the provisions of the Public Procurement Act will be applicable. As this legal landscape evolves, addressing these uncertainties will become imperative.

Only Time Will Tell

It is indeed the very early days, and only time will tell whether the Public Procurement Act meets all its ideals. But whether it succeeds depends in part on the compliance of all parties, including suppliers and contractors. Taking a proactive step by registering with the OPR may be a prudent first move for any supplier or contractor who engages in business with procuring entities in the aviation sphere in Trinidad and Tobago.