Guyana
Can it possibly be the case that the historic constitutional reforms of over two decades ago conceived of a Public Procurement Commission (PPC) that would be toothless?
Is it conceivable that upon examining a hopelessly flawed tender that the PPC would do nothing about an improperly awarded contract but offer sop to the public?
Well that is exactly how the Pauline Chase-led PPC has conducted itself in relation to the scandalous Tepui Inc contract for the building of a pump station at Belle Vue worth a grand $865m.
In our editorial of April 19, 2024, we asserted that the handling of the Tepui Inc tender by the National Procurement and Tender Administration Board (NPTAB), its evaluation committee and the procuring entity, the National Drainage and Irrigation Authority (NDIA) presents the starkest evidence yet of corruption in this government and an abomination that President Ali has to be held accountable for – the assigning of pump station contracts to unqualified bidders.
For its part, the PPC took all of six months to engineer an abject neglect of its duty to preserve the integrity of the tendering system and to ensure that unqualified bidders did not enter upon public works and thereby endanger public safety and the public purse. Acting upon a complaint by APNU+AFC MP David Patterson and requesting documents from the NPTAB and the NDIA but not receiving all, the PPC was able to determine that Tepui Inc did not qualify to tender for this contract. It had never built a pump station or any similar facility. It did not have a bank guarantee or bid security. Neither was it accoutred with all of the required equipment for the task before it. Tepui also did not submit – as required – an audited financial statement as it was not in existence for a year. Its tender should have been immediately ruled as non-responsive by the evaluation committee of the NPTAB but this was not done.
The PPC should have been suitably aghast at what it had discovered and summoned in sequence: the evaluation committee of the NPTAB, the head of the NDIA and the chair and Chief Executive Officer of the NPTAB for an explanation of all the transgressions. This was not done.
Instead, in a majority decision in its Summary of Findings, the PPC piteously stated that it was prevented from taking any action as a contract had already been signed. The PPC said “…on the entry into a contract, privity of contract issues arise. There is nothing within the statutory framework which permits the commission to revoke, rescind, recall and or in any way alter, suspend or stop the contract once entered”.
It later offered the gratuitous advice that the NDIA strictly monitor for performance and if Tepui is found in breach that the necessary steps including termination be taken if considered prudent.
The PPC’s outlook ignores the constitutional injunction that birthed it and which must endow it with the power to act on an improperly awarded contract based on a complaint before it.
212W (1) of the constitution says that the PPC “is to monitor public procurement and the procedures therefor in order to ensure that the procurement of goods, services and execution of works are conducted in a fair, equitable, transparent, competitive and cost effective manner according to law…”
212AA (1) (h) requires is to “Investigate complaints from suppliers, contractors and public entities and propose remedial action”. It is also required to investigate cases of irregularity and mismanagement and propose remedial action. Considering that the constitution envisages a tribunal to which PPC decisions could be appealed, it must mean that its decisions are intended to have teeth. Surely, even if it did not have the power to abrogate this contract it could have recommended and urged such to the procuring entity given the very egregious violations in the tender process. Otherwise, the huge public works tender system will become a supercharged swamp of corruption with the PPC completely ineffectual.
A reading of the Summary of Findings gives the distinct feeling that the PPC wants to appear to have done its task while in reality and practice being grossly derelict. Since its full composition in July of 2022, the PPC has pottered about as if it was not aware of the huge task before it. The PPP/C government is enamoured of constitutional bodies and watchdogs that it can control. If the government-nominated PPC commissioners recognise that they are unable to properly discharge their functions they must do the honourable thing and resign.
The evaluation committee of the NPTAB was required to adhere scrupulously to the evaluation guidelines in the tender but it failed to do this. This is exactly how the Bamia Primary School contract was given to entertainers and football promoters and why that project is mired in delays and other problems.
The procuring entity for the Belle Vue project, the NDIA, under the Procurement Act had the power to “…disqualify a supplier or contractor if it finds at any time that the supplier or contractor knowingly submitted information concerning the qualifications of the supplier or contractor that was materially inaccurate, incomplete, or false”. It neglected to do this and Cabinet also failed the due diligence task by giving the no-objection to a contract with a contractor who several of its members must have known had no contracting skills. A scandal all around. This Tepui contract, in the ignominious class of Fip Motilall’s road, must be cancelled and immediate steps taken to overhaul the NPTAB and its evaluation committees.
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Guyana
It took eight months for the PPC to throw out a complaint by R Kissoon Contracting Services over a bid for D&I pumps but more irregularities have surfaced in the tendering system including errors by the evaluation committee and the signing of the disputed contract on January 1st 2023, a national holiday.
R Kissoon complained to the Public Procurement Commission (PPC) on January 24, 2023 that its bids for the maintenance and servicing of drainage and irrigation pumps were unsuccessful even though they were the lowest for two lots and met all of the requirements. It said to the PPC that it had lodged a complaint with the National Procurement and Tender Administration Board (NPTAB) but had gotten no response within the statutory period. The Procurement Act requires the lodging of a bid protest with the procuring entity, in this case the National Drainage and Irrigation Authority (NDIA) and not the NPTAB.
In its Summary of Findings adopted on February 29th this year, the PPC said it nevertheless decided to investigate the matter given its wide constitutional mandate.
The PPC’s Summary of Findings is replete with instances where both the NPTAB and the NDIA ignored requests for crucial clarifying information.
The PPC discovered based on the documents submitted to it that the Evaluation Committee of the NPTAB said R Kissoon was non-responsive on three of the criteria and its bids were therefore thrown out. However, the PPC found that R Kissoon could possibly only have been deemed non responsive in relation to one guideline and had actually complied with the other two.
This discovery will raise further questions about the arbitrary conduct of the evaluation committees of the NPTAB and how certain contractors could be favoured over others. In a recent controversial case, despite having failed several guidelines, including the requirement to have previously built a pump station, the evaluation committee admitted the bid of Tepui Inc as responsive. Tepui was later awarded the contract and this has triggered a major controversy.
The PPC found that the complainant was deemed non-responsive by the Evaluation Committee for failing to satisfy three of the Evaluation Criteria – financial and technical, particularly – Criteria #9: Evidence of financial capacity representing (25%) for each individual lot. The bidder must provide a bank statement or line of credit from a bank or a recognized financial institution. The document must be dated within one month of the bid opening date and be clearly legible.
Included in the record of the tender proceedings submitted by the NPTAB to the commission, was a Statement from Republic Bank (Triumph Branch) evidencing a bank account balance of the complainant in the sum of $40,957,648. The statement was dated December 16th, 2022, that is, within one month of the bid opening on December 20th, 2022 as required.
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Guyana
In the wake of its investigation of the awarding of a pump station project to Tepui Inc which did not have the requisite experience, the PPC has recommended that evaluators stick rigidly with the evaluation criteria for tenders.
In its summary of findings issued on Tuesday, six months after a complaint by MP David Patterson, the Public Procurement Commission (PPC) recommended that “Evaluators must strictly abide with the express terms of the Evaluation Criteria for the tender being evaluated”. The PPC pointed out that the previous commission had said the Evaluation Committee should not consider evaluation criteria not outlined in the tender documents.
The PPC, chaired by attorney Pauline Chase, said that an Evaluation Committee “does not possess the authority, discretion or jurisdiction to vary or (waive) Evaluation Criteria unless expressly provided for in the tender documents”.
It also recommended that the Evaluation Committee should be “very meticulous” in its review of bids to ensure that they are evaluated in accordance with the Evaluation Criteria so that the Procurement Act is not breached.
“The Evaluation Report should give a true and complete account of the evaluation process. Accordingly, it must clearly set out all pertinent matters, including but not limited to, date of completion of the evaluation, analysis of the tenders, whether arithmetic checks were done in accordance with S. 39(4)(b) of the Procurement Act, Cap. 73:05 and whether clarification was sought from any of the bidders and if so the particulars thereof”, the PPC said.
The upshot of the summary of findings is that though Tepui did not comply with the evaluation criteria, a contract has already been signed and the PPC does not have any authority to rescind, recall or alter the contract in any way.
The PPC’s summary of findings is replete with examples of the Evaluation Committee of the National Procurement and Tender Administration Board (NPTAB) bending over backwards to justify not strictly applying the evaluation criteria to Tepui’s bid. One of the key requirements was for Tepui to have had prior experience with a project similar to a pump station. It did not have this and readily admitted it.
However, when questioned by the PPC, the NPTAB said that the work done by Tepui in the less than a year it was in existence was similar to what was required for a pump station.
The PPC noted that Evaluation Criteria No. 8, required the awarded contractor to: “Demonstrate specific construction experience by providing copies of contracts with previous clients that show the bidder has completed one (1) project of similar nature within the past five (5) years. (Similar projects shall include pump stations, sluices and drainage structures)” [emphasis re Bidding Documents].
The PPC said that the record before it reflects that Tepui submitted two contracts under this criterion heading: a contract between it and Hadi’s World Inc. dated March 27th, 2023, for the construction of a concrete wharf at Providence, and a contract between it and the Central Housing and Planning Authority dated February 24th, 2023, for the upgrading of roads in Block 3, Great Diamond.
Further, the List of Current Projects submitted by Tepui under Evaluation Criteria No. 14, gave the status of the aforesaid projects at the time of the bid submission (June 2023) as 30% and 20% completed, respectively.
The commission noting that the works for which the contracts were submitted by Tepui were neither for a “pump station, sluice and or drainage structure” as specified in the Evaluation Criteria nor were any, by Tepui’s own admission, completed, also as required by the Evaluation Criteria, wrote to the NPTAB by on February 6th, 2024 and requested clarification as to the basis on which the Evaluation Committee deemed Tepui as responsive to the said criterion No. 8.
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Guyana
Whenever challenged about its longstanding nemesis, corruption, the preferred refrain from the ruling PPP/C is always for the claimant to present the evidence. That ruse has been employed as the PPP/C has been well aware that such evidence is difficult to come by and that many who could speak are too spineless or intimidated. Forty-four months into the life of this administration evidence is certainly now available in the report of the Public Procurement Commission’s (PPC) summary of findings based on a complaint lodged by APNU+AFC Member of Parliament David Patterson.
It has taken six months for the PPC to complete its task but its Summary of Findings, Tender No. 166/2023/21 should be required reading for President Irfaan Ali. In it he will find stark evidence of how the evaluation committee of the National Procurement and Tender Administration Board (NPTAB) violated many of the guidelines attached to the invitation for bids for the Belle Vue Pump Station so that the award could be made to Tepui Inc, one of whose principals is Mikhail Rodrigues better known as Guyanese Critic.
Tepui was required to have had the experience of having completed one project of a similar nature within the past five years. Similar projects, the relevant guideline said, “shall include pump stations, sluices and drainage structures”. Having been incorporated less than a year before, Tepui did not have these qualifications, yet the evaluation committee of the NPTAB found its bid to be responsive.
The summary of findings said that Tepui itself submitted as part of its tender, a letter addressed to the procuring agency, National Drainage and Irrigation Authority dated June 13th, 2023, under the hand of “Winston Martindale, Director” captioned “Record of Past Work Experience” in which it stated – “Our company was registered in August 2022 and has now commenced the process of bidding for projects, hence we do not have any past work experience but our team of personnel have years of experience under upgrading and rehabilitation of roads as indicated on their respective resumes.”
Tepui also did not provide a bank line of credit. It provided a line of credit issued by Puran Bros. Later a letter of credit issued by Caricom General Insurance Company appeared but this also was ineligible.
Tepui did not submit – as required – an audited financial statement as it was not in existence for a year.
In terms of equipment requirements, Tepui, the summary of findings said, did not show evidence of three pieces of equipment. It also fell short of its bid security requirement.
In any other well-ordered jurisdiction, Tepui’s bid would be immediately ruled out. One wonders how that bid was let in but many others rejected.
Why would an evaluation committee of the NPTAB favour Tepui and Mr Rodrigues? That answer probably lies in the fact that Mr Rodrigues has presented himself to the public as somebody well-connected to the government and perhaps the government wants him to have a contract. In several editorials and news items about the farcical award of the pump station contract to Tepui this newspaper has pointed out Mr Rodrigues’ ease of access to Vice President Bharrat Jagdeo and other signs of his connectedness to officialdom. So if an evaluation committee improperly favoured Mr Rodrigues it would likely be on signals from those in authority.
In its response to the PPC’s questions, the NPTAB also introduced the artifice of “leniency” in consideration of bids in utter contravention of the extant guidelines.
“The decisions regarding bid evaluation were consistent with past practices, where leniency was extended to bidders lacking direct pump station construction experience but demonstrating proficiency in similar projects”, said the NPTAB which then added most unbelievably, “Upholding principles of fairness, transparency, and accountability, NPTAB assures of its commitment to maintaining integrity and professionalism in procurement processes”.
No further evidence is needed of corruption under this government as it relates to the massive public expenditure programme that is administrated by the NPTAB. There should be a criminal investigation of the conduct of the evaluation committee, an immediate pulling of the files associated with this tender so that the police can probe the circumstances under which other bids were disallowed and the board of the NPTAB and its senior leadership should be removed immediately, a task that would be left to the President and/or the Ministry of Finance. Needless to say, the Tepui contract should be immediately cancelled.
It was not only Tepui that was favourably looked at even though unqualified. The NPTAB had the gumption to advise the PPC that a precedent had been set by the award of similar pump station contracts to others who also did not have the requisite experience. It cited the construction of a pump station at Devonshire Castle, Region Two which was awarded to Samaroo Investments and the Den Amstel pump station in Region Three to JR Ranch Inc. J/V GSK Excavation Services. The Pouderoyen pump station also falls into this category although there was no mention of this by the NPTAB.
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Guyana
The Regional Administration of Region Seven breached the Procurement Act of 2003 when it awarded $22 million in contracts without public tendering, the Auditor General’s report of 2023 revealed.
The contract awards surpassed the legal limit of $3million.
According to the Auditor General, the regulations made under the Procurement Act 2003 – Amendment of Schedule 1 and Schedule 2 to the Principal Regulations, Item 2, stipulates that “The threshold foreseen in section 27(1) of the Act for use of the request for quotations method of procurement shall be $3,000,000.”
However, upon examination, the Audit Office discovered that the Regional Administration expended amounts totaling $22.969 million for the supply of dietary supplies for D.C Caesar Fox Secondary Dormitory through the processing of four Payment Vouchers.
“The Regional Democratic Council (RDC) breached the aforementioned regulations since the three-quote method of procurement was utilised. These purchases should have been publicly advertised and adjudicated by the Regional Tender Board due to the value exceeding the limit of $3M,” the AG pointed out.
Providing a breakdown of the $22 million purchases, the Audit Office detailed that the dietary supplies including flour, sugar, milk, blackeye peas, and butter among others were bought for $5,626,000.
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