PHILIPSBURG, Sint Maarten – Although on the surface the recently published “Tender Procurement Policy” for the Ministry of Public Housing, Spatial Planning, Environment and Infrastructure (VROMI), published on 23 December 2021 in the Landscourant “National Gazette”, could be seen as a step in the right direction, the measure actually contravenes the country’s National Accountability Ordinance, thus making it illegal.
This grave concern motivated Party for Progress (PFP) Members of Parliament (MPs) Melissa Gumbs and Raeyhon Peterson to submit official questions to VROMI Minister Egbert J. Doran.
According to Article 47, section 6 of the National Accountability Ordinance, further rules for the contracting by tender for procurement of goods or services and performance of works by the country must be regulated in a National Decree containing general measures, also known by the Dutch acronym LB-ham.
“The reasoning behind this is because tenders, regular or public, do not just tie one Ministry to a contract, but the whole Country Sint Maarten. The regulation of tenders has to be across the board for all ministries. The Minister of Finance is thus expected to take the lead role in this matter,” said MP Gumbs.
A policy is in no way similar to a National Decree containing general measures, especially considering the necessary checks and balances in place for spending the country’s budget. The LB-ham is therefore also subject to greater oversight because it must be reviewed by the Council of Advice, the country’s highest advisory body,” added MP Peterson.
“That is why Article 47 does not give the option for individual Ministers to regulate anything regarding tenders through ‘policy’, as this does not go through the required checks and balances that is required by law,” continued MP Peterson. “As such, a policy that regulates tenders for any specific Ministry can be deemed illegal. It not only circumvents the Council of Advice, but also the Council of Ministers and the Governor.”
“The lack of legal basis for this policy could nullify previously made agreements related to the development of, for example, the Over the Bank area,” concluded MP Gumbs.
To create this LB-ham is not a choice, but actually an obligation for our Government, something that has not been done to this day. In the last budget central committee meeting, the PFP faction asked the Minister of Finance why this was not done, with no real response provided.
In light of the policy’s blatant illegality, the PFP MPs are calling on Minister Doran to withdraw the document and collaborate with the Finance Minister to create the legally required National Decree.
MP Gumbs and Peterson posed three other questions to Minister Doran. These are, namely:
1. Based on which section of article 47 of the National Accountability Ordinance does the Minister of VROMI derive the authority to regulate regular and/or public tenders by “policy?”
2. Was the above-mentioned policy evaluated by a legal advisor in VROMI or did the Minister request any legal advice prior on this matter before drafting this policy? If this is the case, can the members of PFP receive a copy of the legal advice?
3. Did the Minister receive any advice from the Ministry of Finance with regard to this policy?
“While we certainly applaud initiatives to help Sint Maarten progress to the next level, we
recognize that these must be laid down in an appropriate manner. This is our concern in calling out this error by the Minister of VROMI,” concluded the PFP MPs.