General Sarath Fonseka Vindicated
"The verdict of the second Court Martial delivered by the three Junior Major Generals with many charges against them in their military life is a travesty of justice as the NPA Guidelines has no statutory (legal) standing, as the NPA has been establish under Presidential Directive without the approval of the Parliament. This unjust verdict will bring severe repercussions and ill feelings among the three Armed Forces and also among the general public within Sri Lanka as well as among the International community, if you approve the verdict to send General Fonseka to Jail."
by S.Upasiri de Silva
EXCLUSIVE TO SRI LANKA GUARDIAN
Sri Lanka Guardian had exclusively received a letter S.Upasiri de Silva, JP, Dip.St.Eng (CTC), Dip.QS.(Lond),P.Grad.Dip.Ed,(UTS),M.Proj.Mgt (UNSW), PhD, FRICS, MCIArb, MICostEng, MIPM. Chartered QS, Chartered Project Manger & Procurement Consultant regarding the second court martial verdict.
(October 02, Colombo, Sri Lanka Guardian) The open letter of Sellakapu.S.Upasiri de Silva, JP, from Australia to the H E President Mahinda Rajapakse clearly exposes the fallacy and revengefulness of the President to humiliate, punish and cause irreparable damage to General Fonseka.
The revelation by Mr Silva only exposes the hocus Military Court presided by junior military officers to the General, thus violating the very Military Act and is clearly a Kagaroo Court of the pandagkarayas to deliver judgment on a able war hero.
The open letter minutely touches on the frivolous charges framed against the General and the mad rush to deliver judgment against him. The revelation confirms the violating parties are none other than the Defense Secretary Gotabaya Rajapakse and ultimately his master and his brother Mahinda Percy Rajapakse.
It is not the Military Court that should have presided over the allegations and charges against the General. Even the Sri Lankan judiciary that is manipulated by the Presidential powers is not capable of delivering fair judgments. The very minute facts presented by Mr Silva would not have been understood by the ever deafening and subdued judiciary, leaving aside the pathetic military court presided over by the pompous army officials.
Justice can only delivered by persons like Mr Silva, so well articulating the intricate issues and whatever he has said will not reach the senses of the deaf and dumb governing over country.
Will the government take some comfort from what the able Mr Silva has said and either release the General unconditionally or put behind bars everyone involved in the failures including the President himself walking into the Bogambara prison without any trial admitting his contribution to the failures that imprisoned the General.
We need more like the Sellakapu.S.Upasiri de Silva, JP to reach the masses of Sri Lanka and tell the facts at the grass root level. Poor masses have been hoodwinked and they are unable to think beyond, due to constraints imposed by the state.
Full text below;
THIS LETTER WAS FAXED TO H.E. THE PRESIDENT AND THE PRESIDENTIAL SECREATRY MR. LALITH WEERATUNGA ON 21ST SEPTEMBER 2010.
Open letter to H.E. the President Mahinda Rajapakse, Commander - in- Chief of the Armed Forces.
The Verdict of the Second Court Martial & the defective NPA Guidelines.
H.E. Mahinda Rajapakse,
President of the Republic of Sri Lanka & the Commander –in-Chief of the Armed Forces.
Presidential Secretariat,
COLOMBO.
You’re Excellency,
Please allow me to bring to your kind notice, even though I am a Sri Lankan born Australian citizen, the following facts for your urgent consideration, before you approve or disapprove the decision of the verdict of the 2nd MC sealing the fate of General Sarath Fonseka.
I am writing this ‘open’ letter to you on my own initiative as a well experienced Contracts and Procurement Professional with a wide knowledge in the application of the NPA Guidelines and its failures to obtain a fair and reasonable decision due to ambiguities and discrepancies the guidelines has created. I used these guidelines as the Consultant for SEC to procure multi billion rupee projects for the GOSL. In one project the GOSL procured, due to these ambiguities and discrepancies, the government lost around Rs. 500 million, as the Chairman of the Tender Board and the Consultants assigned for the project couldn’t overturn the Technical Evaluation Committee (TEC) decision.
In addition to serving for the Sri Lankan government as a Senior Project Management Consultant I served in many countries in very senior positions dealing in Contracts and Procurements and for the UN-HABITAT and the CFTC- Commonwealth Secretariat, LONDON as a Construction Expert.
The verdict of the second Court Martial delivered by the three Junior Major Generals with many charges against them in their military life is a travesty of justice as the NPA Guidelines has no statutory (legal) standing, as the NPA has been establish under Presidential Directive without the approval of the Parliament. This unjust verdict will bring severe repercussions and ill feelings among the three Armed Forces and also among the general public within Sri Lanka as well as among the International community, if you approve the verdict to send General Fonseka to Jail. If you endorse the verdict as delivered by these three officers, when there are no established penalties for such offences, it may clearly indicate that you have failed to take adequate steps to scrutinise the verdict before dispensing natural justice under the Army Act which you used to prosecute him. General Fonseka may have uttered very disrespectful words during the election but as a “War Hero” and the best “Army Commander in the world” proclaimed by yourself, you should not allow any of these to tarnish your good image. As the Head of the State as well as the Commander –in Chief you are aware that Army Act clearly states that Junior Officers should not sit on judgement on Senior Officers.
You as an elder statement and the President of the country have embraced many others who used very derogatory words about you during the 2005 election, and appointed them as Ministers of your government.
Since 2005 April till 2007, I worked for your government as a Volunteer Consultant (Construction & Procurement) and also helped the 2005 Tsunami reconstruction programme [specially in the Hambantota District] and worked during the 2005 your election campaign. Also I helped in the construction work of Carlton in Tangalle and the Vijayaba Maha Vidyalaya, Tangalle in addition to other works such as planning and setting up the Ranawiru housing programme at Ippologama you initiated on behalf of the Ministry of Defence. In November 2009, I was in Sri Lanka to give a helping hand to Attorney General Mohan Peiris PC.
If you allow the judiciary (military or civil) to deviate from the normal justice system delivering proper judgements (natural justice) your name will go down in the anal of Sri Lankan History as a Dictator. As such I am writing this open letter to you without any prejudice or any malice to highlight the discrepancies of the second judgement expecting that you will dispense natural Justice to General Fonseka and set aside the findings of the CM..
NPA Guidelines
You’re Excellency; on January 27, 2006, gave the approval to the 2nd NPA Guidelines. As stated in the preface that the NPA was established by a Presidential Directive, it has no legal powers to prosecute any one who misuse the guidelines even under a court of law or under a MC. But while approving the National Procurement Agency Guidelines you requested the all uses to follow your instructions by these simple words to achieve a fair procurement system only.
“To achieve the desired results it is imperative to ensure speed, transparency and integrity in all the development spheres and in regard to which the procurement functions of goods, works and services plays a critical role”.
But the NPA and the guidelines they prepared failed to meet the above requirements as expressed by you. The National Procurement Authority was closed down after the writer highlighted the ambiguities and discrepancies in the NPA Guidelines by his article title: “National Procurement Agency Guidelines need urgent revision to remove the ambiguities (et. al) October21st-2007, Financial Times of the Sunday Times” But the GOSL failed to order a revision of the NPA Guidelines to correct the ambiguities and discrepancies pointed out in my article allowing these guidelines to corrupt the procurement system..
This was what the World Bank (World Bank funded the establishment of the NPA in 2004) stated in their “Sri Lanka Country Procurement Assessment Report”. “Guidelines should be revised to remove ambiguities and inconsistencies”.
After this report was published by the World Bank (NPA kept this under wrap) NPA commenced formulating the “second set of guidelines” now in use. You’re Excellency approved that as presented to you. The second set of guidelines now in use created more ambiguities and inconsistencies than the first set of guidelines.
As the NPA included the God given powers on the NPA top management to select the members of the TEC and the CATB, most departmental heads (like General Fonseka) never had a chance to appoint suitable and well experienced honest officers to the TEC or the CATB. NPA officials always beat the wrong drum all alone and the then Chairman Mr. Daya Liyanage was under the impression that they are doing a marvellous job, not knowing that they were taking the country and the government for a ride. Most government official who were very friendly with the NPA top guys, always got selected as TEC and CATB members (it was an additional income for them in addition to getting underhand money from people who tendered for jobs) These TEC members and the CATB members including the Consultants the NPA selected praised the NPA Guidelines as there was none to challenge them. Unfortunately for them I emerge from nowhere and challenged them.
Please allow me to bring to your kind notice some of the ambiguities in these guidelines for you to understand that you should set aside this MC findings.
As the national Procurement Agency is not an established Agency under regulations approved by the Parliamentary Legislation, but only a body created under a Presidential directive in 2004, it has no legal powers to take any action in a court of Law. The charges against General Fonseka for “Conflict of Interest” under these NPA Guidelines is not a punishable offence under the Sri Lankan legal system or under the Army Act 1949, as the Army Act is regulated under the Sri Lankan Legal System. NPA Guidelines have no mention of military procurement as such; Army Act cannot be applicable for any offences committed using these guidelines.
Conflict of Interest.
In a procurement process, the Chairman of the Tender Board will ONLY meet the TEC and the CATB at the beginning and the conclusion of the tender, and the CATB will always approve the findings of the TEC (Technical Evaluation committee) the mighty powerful committee under these guidelines.
According to the analysis produced in the Sunday Times by one of its reporters, the TEC has taken a decision well before the Chairman of the Tender Board ever set his eyes on this Tender. [According to Sunday Times the Chairman of the Tender Board was Major General Mahes Senanayake and not General Fonseka]. This may be a reason why General Fonseka never declared a “Conflict of Interest” as he never functioned as the Chairman of the Tender Board.
In purchases like this, which comes under Section 2.7.3 (g) security consideration to obtain the best equipments for the Army to fight the LTTE terror, the TEC should have adopted the best possible steps to eliminate the unsuccessful tenderers according to my personal opinion.
Using the powers vested on the TEC under section 2.8, even the TEC have taken WRONG decisions the Chairman of the Tender Board or the Consultants have no powers to reject the TEC decision as they are appointed on the recommendation of the line Ministry by the NPA.
Unfortunately these NPA guidelines never even wrote a single line to explain how to procure Military Equipments at the height of this war in 2003/ 2005/2006. This omission shows how these pundits created such a vast lot of ambiguities and inconsistencies in these guidelines.
CHAPTER 2
INSTITUIONS, PROCUREMENT COMMITTEES AND THEIR FUNCTIONS
Section 2.2 – Secretaries to the Line Ministries
2.2.1 The responsibility of Procurement Action shall be vested with the Secretaries of the respective Line Ministries, who are DEEMED TO BE THE Chief Accounting Officers of such Ministries.
The secretary of the Line Ministry i.e. The Ministry of Defence Mr. Gotabaya Rajapakse , as the Chief Accounting Officer is responsible for any procurements in any branch of the Defence services. So why Gotabaya Rajapakse, Secretary of the Ministry of Defence who appointed the TEC and the CATB and was responsible for the procurement process as the Chief Accounting Officer never took the full responsibility for these procurements? WHY?
Powers vested on Committees
Section 2.3.2 of Chapter 2 of the Guidelines state that Officer –in -Charge of Procurement Action such as Heads of Departments (Army Commander is under this category) and Project Directors, together with the assistance of the Procurement Specialist, Consultants and other staff shall be responsible for Procurement of Goods, preparation of invitation for pre-qualification and it is submission to the TEC for review and approval.
[Director Plans at Army Headquarters who acted as the Chairman of the Tender Board is in accordance with this clause]
Section 2.7 - Composition of Procurement Committees (PC) and Cabinet Appointed Procurement Committee (CAPC) – Under delegated authority by the Cabinet of Ministers, the NPA (Now the Treasury Finance division) shall appoint CAPC to undertake high value procurements.
Section 2.7.2 - (a) In extraordinary situations, a Ministry may submit a Cabinet memorandum specifying the special circumstances, which requires a deviation from the general procurement proceedings in order to meet such situations, and shall seek Cabinet approval to appoint a SACP including the limits of procurements. [All Defence procurements came under SACP]
Section 2.7.2 (b) –The TEC for such SCAPC shall be appointed by the NPA (now Treasury Finance division))
Section 2.7.3 – SCAPC may justified where: it covers 8 divisions and the most important ones are (a),(b) and (g) security consideration warrants it.
Section 2.8 - composition of the Technical Evaluation Committees (TEC).
Section 2.8.1 (a) – There shall be a TEC’s for all procurements ………………
Section2.8.1 (b) - TEC’s should consists of subject specialist/s and at least one member who is sufficiently knowledgeable on procurement procedures.
Section2.8.1 ( c)- A TEC where necessary may obtain expert advice from external members…………………..
Section 2.8.1 (d)- A TEC may also obtain assistance for drafting bidding documents and evaluation of Bills from EXTERNAL Consultants who shall be guided and directed by the TEC.
[This is the most controversial, section of these guidelines. A Consultant who handles the Documentation and other aspects of the Procurement Process and paid a hefty fee for the service is now place under the TEC members who has very little knowledge about procurement of major projects and get paid Rs. 3,500/= for the work]
A very good example of how these ambiguities and inconsistencies were well demonstrated was when the NPA appointed the TEC for the Procurement of the Rs. 4 billion Customs Building in Colombo Fort, the largest Construction procurement process ever handled by the GOSL.TEC consist an Engineer (Deputy Director) from the Building Department, another Engineer (Director) from the ICTAD and another Architect (Asst Director) from the UDA. Other two were Customs Directors.
I prepared the Bidding Documents for this project and the TEC changed one of the pre-qualification conditions that I included. Due to that changed we were left with TWO Contractors for to BID for the largest construction project ever undertaken in Sri Lanka. Normally in western countries at least EIGHT (8) Major contractors will be short listed for such a big contract. I discuss this with the Director General of customs and wrote to him but he didn’t want to go against the TEC as it was appointed by the NPA. This happened as the Section 2.8.1 (d) has empowered the TEC to override the PC and the Consultants. The government of Sri Lanka (Customs Department) may have lost a very good opportunity to have a very healthy competitive bidding process and to save at least (in my opinion) Rs. 500 million from that contract. If we follow this 2nd CM verdict then we must prosecute the (former) Director General of the Customs for this lapse of the TEC as he was the Chairman of the TB? So the NPA failed to appoint a subject specialist under Section 2.8.1(b) and the whole process failed.
LANKA LOGISTICS
I hope this may help you’re Excellency to understand that all procurements carried out by the Ministry of Defence were flawed as The NPA Guidelines were never adhered to by the Defence Secretary, the Chairman of the Lanka Logistics or General Manager of the Lanka Logistic or the Legal advisers or the procurement specialists, may be due to the ambiguities surrounding these guidelines as well as of the legal status of the Agency.
If General Sarath Fonseka is guilty of corruption or fraud or Conflict of Interest then the same charges can be brought against the Lanka Logistics and the Commanders of the other TWO armed forces Navy and the Air Force, for procurement of all other arms under violation of the same guidelines. I am not including the Police Force as it can be covered under the same rules.
Procurement according to the NPA guidelines is a very long process. To procure any article or goods or equipments costing more than Rs. 3 billion, the Procurement Committees should allow more than 225 weeks. i.e. over 4 years. If one follows these guidelines then the purchase of Arms including fighter Jets MIG 27 and Ariel bombs for the Air Force, 32 mm Cannons, Fast Track Boats for the Navy, Ground Tanks and Rapid Fire Guns for the Army has violated the NPA guidelines and every one who sat in those Cabinet Approved Procurement Committees (CAPC), Standing Cabinet approved Procurement Committee (SCAPC) ,Ministry Procurement Committees (MPC) and Technical Evaluation Committees (TEC) should be charged for corruption or CM for fraud by violation or corruption. But, as these guidelines have no legal binding, we can simply say that it has no teeth to bite as such it is a waste of time to prosecute them.
Finally, please allow me to remind you’re Excellency, how a person discharged from the Army and confisticate his pension by the 1st CM can be punished again for crimes (he never) committed as the Commander of the Army. He is no more the Commander of the Army, who was responsible for these procurements when this verdict was delivered. Please consider these facts as this may become a double victimization of a person against the natural justice.
Yours Truly,
Sellakapu.S.Upasiri de Silva, JP,
Dip.St.Eng (CTC), Dip.QS.(Lond),P.Grad.Dip.Ed,(UTS),M.Proj.Mgt (UNSW), PhD, FRICS, MCIArb, MICostEng, MIPM;
Chartered QS, Chartered Project Manger & Procurement Consultant.
Sydney, Australia.
The revelation by Mr Silva only exposes the hocus Military Court presided by junior military officers to the General, thus violating the very Military Act and is clearly a Kagaroo Court of the pandagkarayas to deliver judgment on a able war hero.
The open letter minutely touches on the frivolous charges framed against the General and the mad rush to deliver judgment against him. The revelation confirms the violating parties are none other than the Defense Secretary Gotabaya Rajapakse and ultimately his master and his brother Mahinda Percy Rajapakse.
It is not the Military Court that should have presided over the allegations and charges against the General. Even the Sri Lankan judiciary that is manipulated by the Presidential powers is not capable of delivering fair judgments. The very minute facts presented by Mr Silva would not have been understood by the ever deafening and subdued judiciary, leaving aside the pathetic military court presided over by the pompous army officials.
Justice can only delivered by persons like Mr Silva, so well articulating the intricate issues and whatever he has said will not reach the senses of the deaf and dumb governing over country.
Will the government take some comfort from what the able Mr Silva has said and either release the General unconditionally or put behind bars everyone involved in the failures including the President himself walking into the Bogambara prison without any trial admitting his contribution to the failures that imprisoned the General.
We need more like the Sellakapu.S.Upasiri de Silva, JP to reach the masses of Sri Lanka and tell the facts at the grass root level. Poor masses have been hoodwinked and they are unable to think beyond, due to constraints imposed by the state.
Full text below;
THIS LETTER WAS FAXED TO H.E. THE PRESIDENT AND THE PRESIDENTIAL SECREATRY MR. LALITH WEERATUNGA ON 21ST SEPTEMBER 2010.
Open letter to H.E. the President Mahinda Rajapakse, Commander - in- Chief of the Armed Forces.
The Verdict of the Second Court Martial & the defective NPA Guidelines.
H.E. Mahinda Rajapakse,
President of the Republic of Sri Lanka & the Commander –in-Chief of the Armed Forces.
Presidential Secretariat,
COLOMBO.
You’re Excellency,
Please allow me to bring to your kind notice, even though I am a Sri Lankan born Australian citizen, the following facts for your urgent consideration, before you approve or disapprove the decision of the verdict of the 2nd MC sealing the fate of General Sarath Fonseka.
I am writing this ‘open’ letter to you on my own initiative as a well experienced Contracts and Procurement Professional with a wide knowledge in the application of the NPA Guidelines and its failures to obtain a fair and reasonable decision due to ambiguities and discrepancies the guidelines has created. I used these guidelines as the Consultant for SEC to procure multi billion rupee projects for the GOSL. In one project the GOSL procured, due to these ambiguities and discrepancies, the government lost around Rs. 500 million, as the Chairman of the Tender Board and the Consultants assigned for the project couldn’t overturn the Technical Evaluation Committee (TEC) decision.
In addition to serving for the Sri Lankan government as a Senior Project Management Consultant I served in many countries in very senior positions dealing in Contracts and Procurements and for the UN-HABITAT and the CFTC- Commonwealth Secretariat, LONDON as a Construction Expert.
The verdict of the second Court Martial delivered by the three Junior Major Generals with many charges against them in their military life is a travesty of justice as the NPA Guidelines has no statutory (legal) standing, as the NPA has been establish under Presidential Directive without the approval of the Parliament. This unjust verdict will bring severe repercussions and ill feelings among the three Armed Forces and also among the general public within Sri Lanka as well as among the International community, if you approve the verdict to send General Fonseka to Jail. If you endorse the verdict as delivered by these three officers, when there are no established penalties for such offences, it may clearly indicate that you have failed to take adequate steps to scrutinise the verdict before dispensing natural justice under the Army Act which you used to prosecute him. General Fonseka may have uttered very disrespectful words during the election but as a “War Hero” and the best “Army Commander in the world” proclaimed by yourself, you should not allow any of these to tarnish your good image. As the Head of the State as well as the Commander –in Chief you are aware that Army Act clearly states that Junior Officers should not sit on judgement on Senior Officers.
You as an elder statement and the President of the country have embraced many others who used very derogatory words about you during the 2005 election, and appointed them as Ministers of your government.
Since 2005 April till 2007, I worked for your government as a Volunteer Consultant (Construction & Procurement) and also helped the 2005 Tsunami reconstruction programme [specially in the Hambantota District] and worked during the 2005 your election campaign. Also I helped in the construction work of Carlton in Tangalle and the Vijayaba Maha Vidyalaya, Tangalle in addition to other works such as planning and setting up the Ranawiru housing programme at Ippologama you initiated on behalf of the Ministry of Defence. In November 2009, I was in Sri Lanka to give a helping hand to Attorney General Mohan Peiris PC.
If you allow the judiciary (military or civil) to deviate from the normal justice system delivering proper judgements (natural justice) your name will go down in the anal of Sri Lankan History as a Dictator. As such I am writing this open letter to you without any prejudice or any malice to highlight the discrepancies of the second judgement expecting that you will dispense natural Justice to General Fonseka and set aside the findings of the CM..
NPA Guidelines
You’re Excellency; on January 27, 2006, gave the approval to the 2nd NPA Guidelines. As stated in the preface that the NPA was established by a Presidential Directive, it has no legal powers to prosecute any one who misuse the guidelines even under a court of law or under a MC. But while approving the National Procurement Agency Guidelines you requested the all uses to follow your instructions by these simple words to achieve a fair procurement system only.
“To achieve the desired results it is imperative to ensure speed, transparency and integrity in all the development spheres and in regard to which the procurement functions of goods, works and services plays a critical role”.
But the NPA and the guidelines they prepared failed to meet the above requirements as expressed by you. The National Procurement Authority was closed down after the writer highlighted the ambiguities and discrepancies in the NPA Guidelines by his article title: “National Procurement Agency Guidelines need urgent revision to remove the ambiguities (et. al) October21st-2007, Financial Times of the Sunday Times” But the GOSL failed to order a revision of the NPA Guidelines to correct the ambiguities and discrepancies pointed out in my article allowing these guidelines to corrupt the procurement system..
This was what the World Bank (World Bank funded the establishment of the NPA in 2004) stated in their “Sri Lanka Country Procurement Assessment Report”. “Guidelines should be revised to remove ambiguities and inconsistencies”.
After this report was published by the World Bank (NPA kept this under wrap) NPA commenced formulating the “second set of guidelines” now in use. You’re Excellency approved that as presented to you. The second set of guidelines now in use created more ambiguities and inconsistencies than the first set of guidelines.
As the NPA included the God given powers on the NPA top management to select the members of the TEC and the CATB, most departmental heads (like General Fonseka) never had a chance to appoint suitable and well experienced honest officers to the TEC or the CATB. NPA officials always beat the wrong drum all alone and the then Chairman Mr. Daya Liyanage was under the impression that they are doing a marvellous job, not knowing that they were taking the country and the government for a ride. Most government official who were very friendly with the NPA top guys, always got selected as TEC and CATB members (it was an additional income for them in addition to getting underhand money from people who tendered for jobs) These TEC members and the CATB members including the Consultants the NPA selected praised the NPA Guidelines as there was none to challenge them. Unfortunately for them I emerge from nowhere and challenged them.
Please allow me to bring to your kind notice some of the ambiguities in these guidelines for you to understand that you should set aside this MC findings.
As the national Procurement Agency is not an established Agency under regulations approved by the Parliamentary Legislation, but only a body created under a Presidential directive in 2004, it has no legal powers to take any action in a court of Law. The charges against General Fonseka for “Conflict of Interest” under these NPA Guidelines is not a punishable offence under the Sri Lankan legal system or under the Army Act 1949, as the Army Act is regulated under the Sri Lankan Legal System. NPA Guidelines have no mention of military procurement as such; Army Act cannot be applicable for any offences committed using these guidelines.
Conflict of Interest.
3. Officials shall declare that they shall remain without a conflict of interest throughout the process. Should such a compromising situation arise; the official shall declare his/her interest and disassociate himself/herself from the process.The question arises here is weather General Fonseka had known that he committed a Conflict of Interest as due to the URGENCY in managing a very dangerous WAR with the LTTE I doubt, he had even read the papers submitted to him. If he created a “conflict of Interest” in this tender then under section 2.2.1 of Chapter 2 the Secretary of the Ministry of Defence Gotabaya Rajapakse should also be charged under the same offence, as he knew the son-in-law of General Fonseka (he attended Apsara’s wedding) well as the responsibility of the Procurement action is vested on him as the Secretary of the Ministry..
In a procurement process, the Chairman of the Tender Board will ONLY meet the TEC and the CATB at the beginning and the conclusion of the tender, and the CATB will always approve the findings of the TEC (Technical Evaluation committee) the mighty powerful committee under these guidelines.
According to the analysis produced in the Sunday Times by one of its reporters, the TEC has taken a decision well before the Chairman of the Tender Board ever set his eyes on this Tender. [According to Sunday Times the Chairman of the Tender Board was Major General Mahes Senanayake and not General Fonseka]. This may be a reason why General Fonseka never declared a “Conflict of Interest” as he never functioned as the Chairman of the Tender Board.
In purchases like this, which comes under Section 2.7.3 (g) security consideration to obtain the best equipments for the Army to fight the LTTE terror, the TEC should have adopted the best possible steps to eliminate the unsuccessful tenderers according to my personal opinion.
Using the powers vested on the TEC under section 2.8, even the TEC have taken WRONG decisions the Chairman of the Tender Board or the Consultants have no powers to reject the TEC decision as they are appointed on the recommendation of the line Ministry by the NPA.
Unfortunately these NPA guidelines never even wrote a single line to explain how to procure Military Equipments at the height of this war in 2003/ 2005/2006. This omission shows how these pundits created such a vast lot of ambiguities and inconsistencies in these guidelines.
CHAPTER 2
INSTITUIONS, PROCUREMENT COMMITTEES AND THEIR FUNCTIONS
Section 2.2 – Secretaries to the Line Ministries
2.2.1 The responsibility of Procurement Action shall be vested with the Secretaries of the respective Line Ministries, who are DEEMED TO BE THE Chief Accounting Officers of such Ministries.
The secretary of the Line Ministry i.e. The Ministry of Defence Mr. Gotabaya Rajapakse , as the Chief Accounting Officer is responsible for any procurements in any branch of the Defence services. So why Gotabaya Rajapakse, Secretary of the Ministry of Defence who appointed the TEC and the CATB and was responsible for the procurement process as the Chief Accounting Officer never took the full responsibility for these procurements? WHY?
Powers vested on Committees
Section 2.3.2 of Chapter 2 of the Guidelines state that Officer –in -Charge of Procurement Action such as Heads of Departments (Army Commander is under this category) and Project Directors, together with the assistance of the Procurement Specialist, Consultants and other staff shall be responsible for Procurement of Goods, preparation of invitation for pre-qualification and it is submission to the TEC for review and approval.
[Director Plans at Army Headquarters who acted as the Chairman of the Tender Board is in accordance with this clause]
Section 2.7 - Composition of Procurement Committees (PC) and Cabinet Appointed Procurement Committee (CAPC) – Under delegated authority by the Cabinet of Ministers, the NPA (Now the Treasury Finance division) shall appoint CAPC to undertake high value procurements.
Section 2.7.2 - (a) In extraordinary situations, a Ministry may submit a Cabinet memorandum specifying the special circumstances, which requires a deviation from the general procurement proceedings in order to meet such situations, and shall seek Cabinet approval to appoint a SACP including the limits of procurements. [All Defence procurements came under SACP]
Section 2.7.2 (b) –The TEC for such SCAPC shall be appointed by the NPA (now Treasury Finance division))
Section 2.7.3 – SCAPC may justified where: it covers 8 divisions and the most important ones are (a),(b) and (g) security consideration warrants it.
Section 2.8 - composition of the Technical Evaluation Committees (TEC).
Section 2.8.1 (a) – There shall be a TEC’s for all procurements ………………
Section2.8.1 (b) - TEC’s should consists of subject specialist/s and at least one member who is sufficiently knowledgeable on procurement procedures.
Section2.8.1 ( c)- A TEC where necessary may obtain expert advice from external members…………………..
Section 2.8.1 (d)- A TEC may also obtain assistance for drafting bidding documents and evaluation of Bills from EXTERNAL Consultants who shall be guided and directed by the TEC.
[This is the most controversial, section of these guidelines. A Consultant who handles the Documentation and other aspects of the Procurement Process and paid a hefty fee for the service is now place under the TEC members who has very little knowledge about procurement of major projects and get paid Rs. 3,500/= for the work]
A very good example of how these ambiguities and inconsistencies were well demonstrated was when the NPA appointed the TEC for the Procurement of the Rs. 4 billion Customs Building in Colombo Fort, the largest Construction procurement process ever handled by the GOSL.TEC consist an Engineer (Deputy Director) from the Building Department, another Engineer (Director) from the ICTAD and another Architect (Asst Director) from the UDA. Other two were Customs Directors.
I prepared the Bidding Documents for this project and the TEC changed one of the pre-qualification conditions that I included. Due to that changed we were left with TWO Contractors for to BID for the largest construction project ever undertaken in Sri Lanka. Normally in western countries at least EIGHT (8) Major contractors will be short listed for such a big contract. I discuss this with the Director General of customs and wrote to him but he didn’t want to go against the TEC as it was appointed by the NPA. This happened as the Section 2.8.1 (d) has empowered the TEC to override the PC and the Consultants. The government of Sri Lanka (Customs Department) may have lost a very good opportunity to have a very healthy competitive bidding process and to save at least (in my opinion) Rs. 500 million from that contract. If we follow this 2nd CM verdict then we must prosecute the (former) Director General of the Customs for this lapse of the TEC as he was the Chairman of the TB? So the NPA failed to appoint a subject specialist under Section 2.8.1(b) and the whole process failed.
LANKA LOGISTICS
I hope this may help you’re Excellency to understand that all procurements carried out by the Ministry of Defence were flawed as The NPA Guidelines were never adhered to by the Defence Secretary, the Chairman of the Lanka Logistics or General Manager of the Lanka Logistic or the Legal advisers or the procurement specialists, may be due to the ambiguities surrounding these guidelines as well as of the legal status of the Agency.
If General Sarath Fonseka is guilty of corruption or fraud or Conflict of Interest then the same charges can be brought against the Lanka Logistics and the Commanders of the other TWO armed forces Navy and the Air Force, for procurement of all other arms under violation of the same guidelines. I am not including the Police Force as it can be covered under the same rules.
Procurement according to the NPA guidelines is a very long process. To procure any article or goods or equipments costing more than Rs. 3 billion, the Procurement Committees should allow more than 225 weeks. i.e. over 4 years. If one follows these guidelines then the purchase of Arms including fighter Jets MIG 27 and Ariel bombs for the Air Force, 32 mm Cannons, Fast Track Boats for the Navy, Ground Tanks and Rapid Fire Guns for the Army has violated the NPA guidelines and every one who sat in those Cabinet Approved Procurement Committees (CAPC), Standing Cabinet approved Procurement Committee (SCAPC) ,Ministry Procurement Committees (MPC) and Technical Evaluation Committees (TEC) should be charged for corruption or CM for fraud by violation or corruption. But, as these guidelines have no legal binding, we can simply say that it has no teeth to bite as such it is a waste of time to prosecute them.
Finally, please allow me to remind you’re Excellency, how a person discharged from the Army and confisticate his pension by the 1st CM can be punished again for crimes (he never) committed as the Commander of the Army. He is no more the Commander of the Army, who was responsible for these procurements when this verdict was delivered. Please consider these facts as this may become a double victimization of a person against the natural justice.
Yours Truly,
Sellakapu.S.Upasiri de Silva, JP,
Dip.St.Eng (CTC), Dip.QS.(Lond),P.Grad.Dip.Ed,(UTS),M.Proj.Mgt (UNSW), PhD, FRICS, MCIArb, MICostEng, MIPM;
Chartered QS, Chartered Project Manger & Procurement Consultant.
Sydney, Australia.
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