Bahamas<\/p>\n
A fledging Bahamian company that won a $1.323m bid to digitise the Post Office\u2019s services has launched legal action over allegations it has been prevented from fulfilling the contract award.<\/p>\n
Sunrise Communications, in its formal statement of claim lodged with the Supreme Court on November 23, 2023, is claiming that the Post Office and now-Ministry of Transport and Energy have \u201cfailed to perform the requisite steps\u201d under the Public Procurement Act for the contract to be executed and awarded despite it winning two competitive bids.<\/p>\n
It is also alleging that the Post Office \u201chas been entertaining bids for the same work to be performed\u201d by other, rival providers despite its tender success, leading it to file a claim for \u201cdamages for economic loss\u201d. Sunrise, whose win was included in the $140m worth of public procurement contracts unveiled in mid-October, also says it has received no formal suspension or cancellation notice as required by law.<\/p>\n
Ronnie Ferguson, Sunrise Communications\u2019 principal, told Tribune Business the experience has made him question Prime Minister Philip Davis KC\u2019s assertion that the Government is committed to empowering young, qualified and capable Bahamian entrepreneurs through public procurement.<\/p>\n
Disclosing that the affair has left the company \u201cseverely out of pocket\u201d, he added that the contract \u2013 had it been awarded and proceeded as planned \u2013 would have digitised the Post Office\u2019s processes to such an extent that it would have been converted \u201cinto a courier service\u201d able to compete with established private sector firms, help lower industry prices and drive more revenues for the government agency.<\/p>\n
Sunrise Communications\u2019 award, for the \u201cdigitisation and creation of the Post Office\u2019s website\u201d, was among the 843 contracts whose details were released by the Ministry of Finance. However, Mr Ferguson said the award has been \u201cstalled\u201d ever since it was made on April 28, 2023, with ministry and Post Office officials only describing it as \u201cunder review\u201d.<\/p>\n
Jobeth Coleby-Davis, minister of transport and energy, is away at the COP28 climate change conference and could not be reached for comment despite this newspaper messaging her. Ministry officials did not respond to calls and messages, and Mabelene Miller, the current postmistress, was said to be out of office when Tribune Business called on Friday.<\/p>\n
\u201cI\u2019m very much disappointed that, as a young Bahamian company, we would have have followed the process laid out under the [first] Public Procurement Act,\u201d he told this newspaper. \u201cWe would have done everything required. We entered into a competitive bid. The tender went out twice, and on both occasions Sunrise Communications was selected to perform the work.\u201d<\/p>\n
Sunrise Communications, in its statement of claim, asserts that it \u201chad a legitimate expectation that a formal written contract\u201d would be issued after it was selected as the winning bidder \u2013 especially as no cancellation notice was issued, as required by the Public Procurement Act.<\/p>\n
The contract, according to the Ministry of Finance, was issued via an \u2018invitation to tender\u2019 process, and was the only award by the Post Office to be included in the 843-strong list. \u201cAs a result of the said legitimate expectation, the claimant complied with the scope of works submitted in the Go Bonfire [procurement] portal and has done the necessary work to supply to the procuring entity the service as outlined in its initial bid.\u201d<\/p>\n
The statement of claim adds that, prior to the formal competitive bidding process, Sunrise Communications had \u201can existing contract\u201d with the Post Office to digitise its processes via a phased approach and bring the services into the 21st century.<\/p>\n
However, come October 5, 2022, Sunrise alleged that it was told by the Post Master General that \u201cthe overall costs\u201d involved in the digitisation process meant it had to be put out to tender in accordance with the Public Procurement Act.<\/p>\n
\u201cDespite having an executed contract with the Bahamas Post Office as it relates to phases two through five of the digitisation project of the Bahamas Post Office, the claimant entered the procurement process with other competitive bidders and was awarded the contract pursuant to the provisions of the Act,\u201d Sunrise\u2019s statement of claim alleged.<\/p>\n
\u201cThat since having successfully bid for the work to perform the digitisation of the Bahamas Post Office, and the same being published by the Government in accordance with the provisions of the Act, the Bahamas Post Office as the procuring entity has failed to perform the requisite steps as outlined in the Act for the formal contract to be issued in breach of the provisions of the Act.<\/p>\n
\u201cFurther, the Bahamas Post Office has been entertaining bids for the same work to be performed by other suppliers.\u201d Sunrise is claiming that officials failed to provide the necessary information to advance a Cabinet paper that was necessary for the contract to be awarded.<\/p>\n
Sunrise is alleging that the failure to issue the contract, in line with the award, or a formal cancellation or suspension notice while entertaining rival providers, all represent Public Procurement Act breaches.<\/p>\n
Mr Ferguson told Tribune Business that the ministry was totally familiar with Sunrise Communications and its capabilities, having developed its website and that of the Department of Housing\u2019s \u2013 together with their security and digital links \u2013 prior to it being split-off from transport in the last Cabinet reshuffle.<\/p>\n
Explaining Sunrise\u2019s involvement with the Post Office\u2019s digitisation, he said it had initially begun work in February 2022 with the first stage configuration of its website including content and security features. Once that was completed, Mr Ferguson said the company submitted a proposal for what it envisaged would be the second through fifth stages of development.<\/p>\n
Now we were going to make it more advanced; to turn it into a courier service and digitise all the processes related to the postal side,\u201d he added. \u201cJust like Go Postal and Mr Ship It, we were taking it [the Post Office] to that level, providing that level of service to make them premier couriers.<\/p>\n
\u201cWe were starting with imports and, in the early part of 2024, if everything went right, we would move into being able to process exports \u2013 a more affordable, faster way of doing it. That was the plan.\u201d<\/p>\n
Mr Ferguson said the proposal was agreed and signed-off by then-post master general, Jennifer Johnson, but the cost involved exceeded the threshold at which contracts had to be put out to tender \u2013 especially since the Ministry of Finance wanted the work done in one go.<\/p>\n
The Sunrise chief said the Post Office contract was duly put out to tender, which his company won, only for it to be re-bid after officials \u201cmuddied up the whole thing\u201d by suggesting the process was \u201cflawed\u201d. However, when it went out to tender again, Sunrise duly won again.<\/p>\n
Mr Ferguson said that, during both tender processes, Sunrise had continued working on the Post Office\u2019s digitisation under the terms of its initial contract. \u201cAt no point in time did anyone from the Post Office or ministry write to Sunrise Communications to say: \u2018Hey, guys, you need to stop the work\u2019,\u201d he added.<\/p>\n
\u201cThere\u2019s a process for that. If there\u2019s any reason why you want us to cancel or stop the work, put it in writing if there\u2019s justifiable reasons. That\u2019s not happened. They\u2019ve said nothing to us. At this point, or shortly thereafter when we had won the award, was when we ran into all these stall tactics. It got to the point where the ministry just kept saying it\u2019s under review, it\u2019s under review.<\/p>\n
\u201cWe stopped working in it after the last meeting with the Post Office in July. I told the team we were not getting any traction. The ministry kept on telling the post master it\u2019s under review. We were awarded the contract, it\u2019s posted online, but they\u2019re not reaching out via e-mail or asking to meet. They\u2019re not engaging at all,\u201d Mr Ferguson added.<\/p>\n
\u201cThe Prime Minister is saying young Bahamian companies should have the opportunity. Here it is now. They have this US company coming into to try to do the work without even going through the procurement process.\u201d Mr Ferguson declined to identify the company he was speaking about or say anything further on this.<\/p>\n
He added that, after the April 28, 2023, confirmation that Sunrise had won the bid, officials said there may be a slight delay in contract execution given that funding would likely be made available in the new Budget year set to take effect from July, but then there was nothing apart from \u201cradio silence\u2019.<\/p>\n
\u201cI had to take legal action. It got to the point where I was severely out of pocket,\u201d Mr Ferguson told Tribune Business. \u201cWe had a legitimate expectation. I went away with the Post Office to meet the logistical firm who may have been the co-ordinator for us. We\u2019re doing these things together, coming together in chat groups back and forth, and now nothing\u2026<\/p>\n
\u201cFor me, I\u2019m disappointed that we are trying to advance the country in the 21st century. We are trying to offer services that would be beneficial. We thought this service would add revenue to the country, give the other courier services competition to lower their prices or improve their services in the industry.<\/p>\n
\u201cI\u2019m disappointed that we are trying to get our footing, but it\u2019s always the foreign companies that edge out the rest of us or, if you are not in that circle, you are edged out. You have to be in the clique or a foreign entity. It\u2019s not a fair play.\u201d<\/p>\n
Sunrise Communications opened in summer 2018, Mr Ferguson said, and now employs around seven to eight persons including technicians and accountants. \u201cI can\u2019t be a cry baby about it and close up shop,\u201d he added of the Post Office affair, confirming that its global communications services platform remains operational and it continues to work on other small projects.<\/p>\n
However, Mr Ferguson said its web services arm has been \u201cseverely limited\u201d because he is unable to pay the development team until reimbursed for work performed on the Post Office project. \u201cWe have other projects lined up, but we are limited in what we can do until we get it sorted out,\u201d he added.<\/p>\n
\u201cWe\u2019re going for full value of everything. We were prepared to settle for the work done. We gave them a road map for everything that was completed and not completed, and our costs.\u201d<\/p>\n
Ashley Williams, the attorney representing Sunrise and Mr Ferguson, said in a statement: \u201cThe Prime Minister in my view has stated his government\u2019s policy in relation to the Public Procurement Act, which position is as previously quoted in The Tribune is: \u2018It is high time young Bahamians were given equal opportunity to compete for Government contracts\u2019.<\/p>\n
\u201cAs a young Bahamian myself I concur with the Prime Minister\u2019s policy. However, what we have in this matter is a young Bahamian who successfully went through the process, but [this] has resulted in him and his business being marginalised in relation to the awarded contract.<\/p>\n
\u201cThis, in my view, is firmly against the policy as I understand it, which was articulated by the Prime Minister. So, in bringing suit, our aim is for justice for the claimant but also to create a framework so that no other young Bahamian will experience what he has as they attempt to climb the economic ladder in this country.\u201d<\/p>\n
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