Guyana
This letter follows up your editorial of Sept. 5 last, “NPTAB response” in relation to the tender for construction of North Ruimveldt Secondary School, and I wish to associate myself with your comment that NPTAB must be commended for the response as a move towards “enlightened governance”. However as you hinted, the response itself is non-responsive. The Procurement Act which creates NPTAB, decrees core principles of promoting fairness and transparency in procurement. International practice requires that each bidder is treated equally; this is entirely consistent with “fairness” in the Guyanese legislation.
However special mention must be made of bid responsiveness, which is not dealt with in the Procurement Act, and so may cause complications, though this need not be so. This responsiveness refers to deliverables, being documentation NPTAB expressly requires of all intended bidders. The responsiveness test is best seen by readers as a procedural pre-evaluation review of submitted bids to screen out bids which do not have the deliverables required, carried out to facilitate the speedy execution of substantial evaluation of bids, when started. The process is legitimate, providing it satisfies the mentioned core principles at all times. The responsiveness test should be done on a fail or pass basis, with ‘failed bids’ being set aside and taking no part in the substantive evaluation, whatsoever.
The evaluation of bids is the aspect dealt with by the legislation, whereby NPTAB may use only evaluation criteria outlined in the bid document. Since 2000 ‘using evaluation criteria’ has been clarified in Commonwealth jurisdictions, in a landmark case just prior, to include, either stating the criteria with given weights, or arranging criteria in order of importance which would have attuned weights given later; failure to do either in the bid document means that the bid must be evaluated on criterion of price alone. Hence SN editorial board and readers alike must not accept the argument that the responsiveness of bids is predicated on whether bids are compliant with all of the evaluation criteria.
Responsiveness of bids must be differentiated from evaluation of the same – and this is not just splitting hairs. Responsiveness must be founded on NPTAB expressly required documentation from bidders and is a preliminary stage of the overall process; evaluation is founded on the relevant criteria outlined, and must culminate in a ranking from which the successful bid is determined. “Requirements” and “criteria” acquire special meanings in relation to responsiveness and evaluation, respectively. To re-label criteria as requirements, then use these to fail any particular bid at the responsive test stage is a charade, and undermines the entire evaluation process. For example, to re-label criteria in order to require a bidder to deliver documentation pertaining to if that bidder abandoned a project or had one terminated at any time, when either state of affairs connotes wrong-doing on the bidder’s part is irrational, might be a violation of one’s Constitutional rights and must be perplexing to the bidder. Plus, NPTAB is not competent, in my respectful view, to delve into such a matter.
Even if NPTAB is in possession of a final order of an arbitrator, tribunal or court, the bidder is entitled to a hearing before being placed on a watch list, for an appeal may or may not be pending. For this reason, on this particular point, I diverge from SN editorial’s position that NPTAB can unearth information on the performance of Kares Engineering Inc., on Kato School. Similarly, re-labelling criteria to require from a bidder documentation of ownership of key equipment, and using such documents, or lack thereof, to fail the bidder at any stage is a charade; also, the requirement does not treat bidders equally since it discriminates against a bidder who plans to hire key plant as required, rather than commit to capital expenditure. Nor does the rampant mis-evaluation end here: assuming that all the criteria as indicated by NPTAB are valid as such, then the established wisdom is that when all non-price criteria are weighted the total must not out-weigh the criterion of price in an irrational manner.
For example, in a 2011 bidder’s legal challenge overseas (one needs to rely on the Commonwealth jurisdictions due to the near-absence of bidders’ challenges in Guyana; but these are at least, persuasive) a contract award using an assessment where 40% of the marks were allocated to non-price criteria was found to be unlawful as the allocation could not be justified; meaning that 60% allocated to price was too low, in that particular case. NPTAB response is silent on this aspect. Based on all the foregoing, the NPTAB evaluation is unintelligible. Far from being fair, open and meting out equal treatment, the pointed exclusion of the two lowest bids seems to be based on a hidden agenda.
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Guyana
With contract negotiations for the planned gas-to-energy project set to begin during the early part of October, the government is looking to hire a consultant firm to provide legal and commercial advisory services as well as negotiation support for the project.
The firm is expected to provide its services for some 45 days.
Both the government and ExxonMobil seem to be moving ahead with their plans for the gas-to-energy project despite the absence of an environmental permit from the EPA.
The project is part of a bigger plan by the government for the Wales area and will be executed in two segments. ExxonMobil will be responsible for the construction of the pipeline to transport natural gas from offshore Guyana while the government is responsible for the construction of the Natural Gas Liquids (NGL) plant and other supporting facilities.
Contract negotiation for the project should begin by October 7th, 2022, according to the Ministry of Natural Resources (MNR). Consultants will be required to begin providing the mentioned services seven days after being selected.
According to a notice on the MNR website, consultants or firm interested in the contract must submit technical and financial proposals for those services by September 13th, 2022 to the National Procurement and Tender Administration Board (NPTAB).
The company or person hired will be required to review the existing legal and regulatory framework for the petroleum sector and integrated policy directives. This includes but is not limited to the petroleum legislation, Petroleum Licence, Liza production licence and heads of agreement between the government and Exxon.
In addition, the consultant will have to review the Draft Gas Supply Agreement and provide detailed legal opinion, comments and advice to the government through the MNR and the Gas to Energy Task Force on the best project outcome for Guyana and its partners. The consultant will also be required to support MNR’s engagement and information exchanges with Exxon during the review and subsequent negotiation stage among others. Exxon, through its consultant Environmental Management Resources (ERM), submitted an Environmental Impact Assessment (EIA) on April 13, 2022, for their part of the project. The impact of the project is rated as minor to the environment.
The pipeline is expected to land at Crane/Nouvelle Flanders, West Coast Demerara and make its way to Wales on the West Bank of the Demerara. The project will involve capturing associated gas produced from crude oil production operations on the Liza Phase 1 (Destiny) and Liza Phase 2 (Unity) Floating, Production, Storage, and Offloading (FPSO) vessels.
The project is pegged at US$1.3 billion and the government hopes it will lead to vastly lower energy costs that would enable a spurt in manufacturing. However, there have been doubts over the country’s execution capacity and whether a feasibility study has been done for this massive project which would be the biggest in the country’s history.
The project will be executed in three phases – construction, operation and decommissioning. It entails three aspects as well – an offshore pipeline which is approximately 220 kilometres of a subsea pipeline extending from new subsea tie-ins at the Destiny and Unity FPSOs in the Stabroek Block to the proposed shore landing, located approximately 3.5 kilometres west of the mouth of the Demerara River; onshore pipeline that is a continuation of the offshore line and extends about 25 kilometres from the landing site to the NGL plant; and the NGL plant and associated infrastructure that will be located about 23 kilometres upstream from the mouth of the Demerara River on the west bank.
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Guyana
-says it was lowest responsive bid
The National Procurement and Tender Administration Board (NPTAB) yesterday defended the award of the reconstruction of the North Ruimveldt Secondary School to Kares Engineer-ing Inc, stating that it was the lowest responsive bid.
On August 24, the $566.9 million contract was signed by the Ministry of Education and Kares Engineering for the reconstruction of the school which was destroyed by fire. The awarding of the contract to Kares has raised questions owing to the company’s poor performance on the Kato Secondary School in 2012.
The NPTAB statement came in response to Tuesday’s Stabroek News Editorial which called on it to defend the award of the project to Kares.
The statement said that it is not the policy of NPTAB to justify its awards in a public discourse but added that the “imputation” of the Edi-torial deserves a response. It explained that NPTAB selects a three-member evaluation team that is deemed to be independent and nominated by sectoral ministries, adding that mechanisms have been put in place to ensure that the members of the Evaluation Committee are not drawn from the procuring entity.
It reminded that the opening of tenders is public and streamed live with the minutes of the proceedings posted to the NPTAB website.
“This allows all participating bidders to see and hear the tender opening process and to interact with the process if necessary. NPTAB maintain minutes of its Board meeting. The recommendations of the Evaluation are considered by the full Board of NPTAB and a decision is taken on the recommendation,” the statement informed.
The North Ruimveldt Secondary School was destroyed by fire on June 19, 2021. The new building will measure 432ft (length) x 30ft (width) x 42ft (height). It will have three storeys and will accommodate 450 to 500 students. The school will be fitted with science laboratories, Information Tech-nology laboratories, new classrooms, teacher accommodation, a sanitary block and a modern external structure. The project period is 14 months.
Specifically addressing the Kares award, the NPTAB said that the following bids were received – Platinum Investments Inc $679,122,111; Dry Rock Construction Inc $687,163,051; QCD Construction Inc $521,690,454; M&P Investment $606,636,675; S&K Construction Consultancy Service & General Supply $595,000,000; Dundas Construction Inc $ 620,000,000; CB General Contracting Service Inc $531,787,715; Builders Hardware General Supply & Construction $614,853,630 and Kares Engineering Inc $566,975,350.
It said that the Evaluation Committee was empanelled on June 27 and the report was submitted to NPTAB on August 2. It explained that while Kares was the third lowest bid, the evaluators found that the two lower bids were non-responsive.
The lowest bid was submitted by QCD Construc-tion Inc but was deemed non-responsive since it did not meet the outlined criteria. The ministry’s statement explained that Evaluation Criterion H required that the bidder “Demonstrate specific construction experience by providing copies of contracts with previous clients that show the bidder has completed two (2) contracts of similar nature, size and complexity of a minimum value of 50% of Bid Price within the past five (5) years”. However, QCD Construction failed to submit proof of contracts listed in their bid submission.
Proof of ownership
The company also failed to provide proof of ownership for the equipment listed in their document which meant that they also did not satisfy Evaluation Criterion P which requires bidders to show “Ownership and or possession of key equipment.” As per the standard, bidders “must provide evidence to show that the key equipment are available in the specified number for the project; Ownership and or possession can be demonstrated by providing the licenses, purchase documents, registrations, agreement to lease or rent from a recognized leasing Agency, and/or affidavit of ownership, An agreement to lease or rent must be dated within one month of the bid opening. Affidavit of ownership must be duly signed by a Commissioner of Oaths or Justice of Peace and the list of equipment must be endorsed by same if is it supplied as an attachment to the affidavit.”
The ministry further stated that QCD Construction did not satisfy Evaluation Criterion J which required that the “Bidder must provide a letter of Authorization for the Procuring Entity to seek reference from the bidder’s Bank and/or Surety relating to the financial capacity evidence supplied. The document must be dated within one month of the bid opening date and be clearly legible.” Additionally, QCD Construction failed to establish that it possesses the financial capability to execute the project.
Bidders are required to show evidence of financial capacity representing 25% of the bid price. The bank letter submitted by QCD Construction did not comply with the requirement since it indicated no definite figures, according to the statement.
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Trinidad and Tobago
Despite the recent call by several stakeholders for the proclamation and implementation of the Public Procurement and Disposal of Public Property Act, Prime Minister Dr Keith Rowley says there is going to be “a little delay” in its execution.
Speaking at a press conference on Monday Dr Rowley said the delay is not intentional but rather it was an opportunity to respond to “several pitfalls” in the details. He said given the fact that the legislation remains under review, it would be very irresponsible of him and the government “to disregard what has been identified by the Chief Justice and what is also being considered by the Office of the Regulator.”
Dr Rowley previously noted that the Attorney General is presently in possession of and is reviewing a six-page commentary on the existing legislation which he received from the Chief Justice.
“So there is going to be a little delay but it is not because we want to delay it, it is because we want to respond to what has been identified as pitfalls with far-reaching consequences.”
He said as soon as the Attorney General is in a position to address those, the country will be informed as Government will move with “reasonable haste to get it put on the books.”
In a joint media release on June 25, AMCHAM T&T, the Trinidad and Tobago Chamber of Industry and Commerce, the Trinidad and Tobago Manufacturers’ Association and the Trinidad and Tobago Transparency Institute, expressed their concern that the Act was not yet proclaimed.
The release said the group was “utterly disappointed” that the lack of “readiness” of state enterprises, over which the Government has ultimate control, may further delay the full implementation of the act.
The group also called on the Government to give a definite timeline for the act’s implementation and commit the necessary time and resources to ensure this is met.
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Guyana
GEORGETOWN, Guyana (CMC) — Transparency Institute Guyana Inc (TIGI) Monday called for a commission of inquiry to examine the allegations of bribery and corruption made against Vice-President (VP) Bharrat Jagdeo during an international television programme earlier this year.
Jagdeo has denied the US-based Vice News investigative report and President Irfaan Ali has indicated that there should be an investigation.
In a statement, TIGI said it does not know how such spectacular allegations could be allowed to fester for so long without action on the part of the Government, especially after both President Ali and Vice-President Jagdeo were recorded as having agreed that an investigation was necessary.
It noted that since the first report became public, Jagdeo’s zeal to respond to the reports appeared to have withered.
“If alacrity was the hallmark of the VP’s response to the first allegations, we would have to say that foot-dragging and temporising appear to have set in to dissipate whatever sense of urgency developed after the latest revelations.”
It called on the Administration to act and have the investigations conducted, especially as it pushes a new anti-corruption framework.
“We were very impressed with the new thrust, although we were concerned that there were no questions entertained. We were impressed because much was made of the role of some 14 laws enacted or updated since 2003 to combat corruption, including the Audit Act No 5 of 2004; the Procurement Act, Cap 73:05, (2003); the Access to Information Act; Anti-Money Laundering; and countering the Financing of Terrorism (Amendment) Act No. 1 of 2015.
“Every day that passes with these Vice News reports dangling in the wind is a day in tension with Government’s stated anti-corruption aims.”
In the television programme, a number of Chinese businessmen, including a close friend of Jagdeo, detailed various allegations of corruption in the Government and also alleged that Chinese investors would have to pay bribes to the vice-president to land Government contracts.
But Jagdeo has threatened to file a lawsuit following the allegations made by businessman Su Zhi Rhong.
“He had said that Vice News lied on him and had issued a statement [to this effect]. Now that they have him on record as though he was doing this, that he claimed he was not doing, that means he has abused the access and friendship he had with me to rip people off.
“So I am going to take legal action against him because he is damaging my reputation in doing [so], and also he will no longer, as I had said in the past when you had asked me about it, he will no longer be a tenant,” Jagdeo said.
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