KESC privatisation: PC refuses to disclose sale agreements of public entity

[Naveed Yaseen]

MUSHTAQ GHUMMAN
ISLAMABAD (July 08 2009): The Privatisation Commission (PC) is reported to have refused to make public the deal to sell Karachi Electric Supply Corporation (KESC), with the argument that public disclosure may result in complications in future transactions, especially in the power sector, according to official documents available with Business Recorder.

Transparency International (TI) had asked for various documents/contract agreement and evaluation report regarding the transaction of KESC. "The requested documents are very sensitive in nature, and their public disclosure may result in complications for further transactions, specially those in power sector, as a number of power sector companies are on active privatisation list at this point of time," sources quoted the PC as saying.

Officials in the PC are of the view that Regulation 3, 2003 of the Privatisation Commission (confidentiality and secrecy of documents) "allows treating certain documents (including "all assignments, deeds executed during the course of privatisation including sale agreements, sale or conveyance deeds, financial advisory agreements") as confidential.

According to documents, the PC has also sought advice of the Ministry of Law and Justice regarding the relevance of Public Procurement Rules 2004 in respect of the documents requested by Transparency International. The PC is of the view that the regulations mentioned above allow it not to provide the documents requested by TI.

The documents further show that Ministry of Law and Justice, in its comments, stated that the case may be taken up with Public Procurement Regulatory Authority (PPRA) for approving documents for withholding the same from public disclosure.

The Ministry of Law and Justice, in its comments, clarified that Rule 47 of the Public Procurement Rules 2000, having been made under section 26 of the Public Procurement Regulatory Authority Ordinance 2002 (XXII of 2002) provides for public access and transparency regarding contracts awarded by a procurement agency. Rule 47 ibid reads as follows: "47.

Public access and transparency. As soon as a contract has been awarded the procuring agency shall make all documents related to the evaluation of the bid and award of contract public: Provided that where the disclosure of any information related to the award of a contract is of proprietary nature or where the procuring agency is convinced that such disclosure shall be against the public interest, it can withhold only such information from public disclosure subject to the prior approval of the Authority".

The Privatisation Commission (Transparency and Secrecy of Documents) Regulations, 2002, by invoking the provisions of section 41 of the Privatisation Commission Ordinance 200 (LII of 2000), and under Regulation 3 enumerates the documents that are considered confidential: clause (g) ibid says that agreements, deeds executed during the course of privatisation included the sale agreement, sale and conveyance financial advisory agreement are confidential documents.

The proviso to Rule 47 supra clearly allows for non disclosure of any information related to award of a contract where the procurement agency is convinced that its disclosure shall be against public interest and it can withdraw any such information from public disclosure subject to approval of the Procurement Regulatory Authority.

Therefore, the object can be achieved by requesting the authority to approve the documents mentioned in regulation 3 of the aforesaid Regulations for withholding the same from public disclosure as provided in the proviso to rule 47 ibid.

In response to the letter sent by Transparency International Pakistan in connection with National Corruption Perception Survey (NCPS) 2009, with the objective of informing the public as to how many organisations are following procurement law, TI Pakistan has received contract agreement and evaluation reports from most of the organisations. A number of organisations like Ministry of Health, PQA, Pakistan Steel, KPT, etc, are posting or are in the process of posting their contracts and evaluation reports on the websites.

However, the PC is not posting the contract agreement and evaluation reports on the website, and has also not supplied the documents to TI Pakistan. This information was requested by TI Pakistan in March 2009, the documents further disclose. According to an insider in the PC, PPRA has also asked the PC not to make confidential documents public.

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