|
|
The Future of the Procurement Task ForceBy Lydia Swart Informal discussions on the work of the Procurement Task Force were postponed last week at the request of the Group of 77. Some insiders believe that one of the first investigation cases taken up by the Task Force may be a key reason for this delay. ORIGIN AND WORKLOAD OF THE PROCUREMENT TASK FORCE According to the Report of the OIOS on the Activities of the Procurement Task Force for the 18-month period ended 30 June 2007 (A/62/272), the Task Force focused its early investigations on the eight UN staff members who had been placed on special administrative leave (with pay) by the management of the UN following an OIOS audit report. Later, it also focused on procurement irregularities in various UN Field Missions and on 319 procurement-related cases it received from the investigations division of the OIOS plus 22 additional cases it identified on its own. Of the eight initial cases, three were cleared of all allegations – though one of these three is apparently under investigation again. A fourth case was referred for criminal prosecution after the staff member’s immunity was waived by the Secretary General. The remaining four cases were determined to have breached the UN Staff Regulations and Rules or were accused of managerial deficiencies. Two of these four staff members were also charged with misconduct. The staff member who was referred for criminal prosecution, Mr. Sanjaya Bahel, ended up in a New York Federal Court where he was pronounced guilty and convicted of all charges based on information provided by the Task Force. He was found to have taken bribes (cash and real estate property in Manhattan) in return for favorable treatment in the bidding and procurement process of a company for at least eight contracts involving some $100 million. THE CASE OF MR. ANDREW TOH According to the PTF report, the ‘interim’4 findings about Toh do not suggest fraud or corruption. Instead, in the report dated 5 October 2007, the Task Force determined Toh had continued to endorse a contractor which not only had a poor performance record, but also overcharged the United Nations. Furthermore, it was determined that he did not address issues in regard to a vendor who did not pay its workers the subsistence sums they were entitled to. More seriously, the PTF’s findings led to charges of misconduct “in connection with his refusal to provide full and complete information to the Task Force; his refusal to comply with a specific direction from the Secretary-General; and his inaccurate and incomplete disclosure form.” In his comments on the PTF report (A/62/272/Add.1), the UN Secretary General states that “the findings of the Task Force should be regarded as those of the Task Force, and not a final determination by the administration of the Organization.” Interestingly, as to the specific case of Toh and the Task Force’s findings – again, Toh is not actually mentioned by name – the Secretary General provides information indicating that Financial Regulations and Rules, performance appraisal mechanisms and audit recommendations had eventually led to the correction of the alleged managerial inefficiencies involving the contractor and vendor. As the Task Force did not find cause for criminal charges, Toh’s case was referred to the Joint Disciplinary Committee (JDC) which on 4 October 2007 – according to a press release issued by Singapore - cleared Toh of all charges except those related to omissions in his financial disclosure to the Task Force following the directive of the Secretary General or on the annual financial disclosure form for those dealing with procurement. The JDC recommended that Toh be reprimanded for the first and not receive anything beyond a written censure for the latter. The JDC made some observations about lack of fairness and confidentiality as well as due process in this case. According to the press release of the foreign ministry of Singapore, the UN’s Panel on Discrimination and Other Grievances apparently agreed with Toh that he had been denied his due process rights, that his integrity and dignity were violated, and that his supervisor Burnham was guilty of “harassment, discrimination, intimidations and abuse of authority.” Subsequently, the Secretary General determined the consequence of Toh’s incomplete financial disclosure. Toh was suspended for two months without pay and was also demoted. A considerably stronger punishment than recommended by the JDC. It is likely that Ban Ki-moon wanted to send a strong message about the importance of complete financial disclosure for managers and staff involved in procurement. We could not find any press releases or reports which clearly explain in what way Toh only partially completed his financial disclosures, or how this was discovered. In one press report, it is suggested that Toh did not mention a home in Singapore and a bank account in London which he claimed to have opened for his daughter. Feeling somewhat vindicated by the findings of the JDC and the Panel on Discrimination and Other Grievances, Toh reportedly would like to bring a civil case against Burnham in the US courts. This would require the Secretary General to waive the immunity of Burnham and according to some observers, this is highly unlikely as no criminal charges are involved but rather an employment dispute. SINGAPORE'S CONCERNS The government of Singapore seems to feel that Toh was singled out because he is from Singapore and they argue that none of his counterparts with the same stature in peacekeeping were similarly investigated at the time, even though because of ‘delegation of authority,’ many contracts fall under the responsibility of the Department of Peacekeeping. Though the Permanent Representative from Singapore at the United Nations would not deny that Toh’s financial disclosure was incomplete, Singapore remains especially concerned about the lack of due process. Not being allowed legal counsel early on during the investigation is one of Singapore’s key objections. The OIOS, however, argues that it has been advised by the Office of Legal Affairs “that fairness does not entail the right of the staff member to have counsel’s assistance during the interview.” The OIOS feels that there seems to be a misunderstanding about how “due process applies in the context of an administrative (not adjudicatory) fact-finding investigation.”5 THE FUTURE OF THE PROCUREMENT TASK FORCE Responses from Fifth Committee members following the introduction of the PTF report on 20 November indicate that the EU and the United States are ready to consider the report of the Task Force and its continuation in 2008. The G77, however, indicated that they first want to receive the outstanding comprehensive review of the investigation division of the OIOS before moving on to informal consultations. Asking to receive other reports first is not an unusual tactic for Member States in the Fifth Committee, because stalling issues provides them with bargaining chips to support items that are higher on their agenda. But in this case, the stance of Singapore about the Task Force is apparently a key factor, along with concerns from some delegates from the South – not publicly expressed – in regard to the Task Force’s establishment and mandate as well as the suspicion that it primarily targets staff members from the South. The costs for the Procurement Task Force amount to almost $5 million for 2008 which to a large extent can be accommodated by the budget for the Investigations Division of the OIOS. Hopefully, concerns within the G77 will not cause it to challenge funding for the Procurement Task Force as this would probably fuel perceptions that the United Nations is not serious in its fight against corruption and fraud.
|
