Debarment of contractors and suppliers
Guyana
The award of the contract in the sum of $566.9 million to Kares Engineering Inc. for reconstruction of the North Ruimveldt Secondary School has generated much criticism. The company was the third lowest from among nine tenders received. According to the National Procurement and Tender Administration Board (NPTAB), the two lower tenders were deemed non-responsive, making Kares Engineering the lowest responsive tender. However, by Section 39(2) of the Procurement Act, a procurement contract must be awarded to the lowest evaluated tender and not lowest responsive tender.
Lowest evaluated tender versus lowest responsive tender
The Act does not provide a definition as to what constitutes the lowest evaluated tender. However, following the bid opening ceremony, the procuring entity (Ministry, Department or Region) must transmit to the appointed Evaluation Committee all tenders received from contractors or suppliers. The Committee shall evaluate the tenders using only those criteria outlined in the tender documents, which have to be qualified in monetary terms, in addition to prices.
Evaluators normally use a two-step approach when conducting evaluations, and this approach is supported by the Procurement Act. The first is an assessment of the responsiveness of the tenders which is a non-technical evaluation. This involves checking to ensure that all the documents listed in the solicitation request have been included in the tender submission, in addition to assessing whether the tenderers have met the qualification requirements set out in Section 5 of the Act. The latter includes ensuring that:
Obligations to pay taxes and social security contributions of employees have been fulfilled;
There is no disqualification, debarment or suspension over the last three years in Guyana and elsewhere;
A tender is still considered responsive if ‘it contains minor deviations that do not materially alter or depart from the characteristics, terms, conditions and other requirements set forth in the solicitation documents or if it contains errors or oversights that are capable of being corrected without touching on the substance of the tender’.
As Quantity Surveyor, Donald Rodney pointed out in a recent letter to the Editor:
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…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.
In the second stage, the evaluators proceed with the technical evaluation of only tenders that are considered responsive. This involves assessment against the criteria set out in the tender documents which have to be quantified in monetary terms using a combination of points and weightings, including prices. A key criterion relates to the possession of, or having access to, the technical competence, financial resources, equipment and other physical facilities, managerial capability, reliability, experience, and reputation, and the personnel, to perform the contract. The tender that receives the highest score based on the technical evaluation is considered the lowest evaluated tender.
There is legal capacity to enter into the contract;
There is no evidence of insolvency, receivership or bankruptcy etc.;
Directors or officers have not been convicted of any criminal offence relating to professional conduct or the making of false statements or misrepresentations as to qualifications to enter into a procurement contract within a period of ten years preceding the commencement of the procurement proceedings; and
Past performance substantiated by documentary evidence would commend the tenderers for serious consideration for the award of the contract.
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