Management consultant, Ramon Gaskin approached the High Court earlier this month for orders to have the Ministry of Public Works and NICIL defend the Amaila Falls road contract awarded to Synergy Holdings but the applications were denied by the acting Chief Justice, Ian Chang who said no evidence was presented to support the case nor was the court persuaded that the public good would be served.

Gaskin was seeking an Order or Rule Nisi of Certiorari for the Ministry and NICIL to show cause why the decision to award the contract should not be quashed. He approached the court through his lawyers, Rex McKay S.C., Fitz Peters, Neil Boston and Christopher Ram. Justice Chang refused the application on Monday.

Gaskin made the application on June 10, in his capacity as a citizen of Guyana. He argued that the US$15.4m Synergy contract was unconstitutional and in breach of articles 212W to 212FF of the Constitution, the Procurement Act 2003 Act. No.8 of 2003 and regulations made thereunder.

He was also seeking an order or Rule Nisi of Prohibition directed to the Minister of Public Works and Communication and the Executive Director of NICIL to show cause why they should not be prohibited from taking any step in connection with the performance of the said contract awarded to Synergy on similar grounds.

But the Chief Justice ruled that the primary basis for making the application might “well have been a genuine disapproval of the personality of the successful bidder…” rather than a concern that the tender procedures might not have been adhered to. He said the capacity of Synergy to execute the contract may understandably be a matter of some public doubt and concern-especially since it involves work to the value of US$15,400,000. However, he said the court is unable to persuade itself that the issue of Writs of Certiorari and Prohibition would be for the public good in light of the importance of the Hydroelectric project to the public welfare and development of the country.

“The execution of the project by Synergy Holdings Inc. may warrant close monitoring but the need for such monitoring does not provide sufficient basis for the exercise of the court’s discretionary power to issue the Orders or Rules Nisi of Certiorari and Prohibition as prayed”, he stated.

Justice Chang said that the court has no doubt that Gaskin did not lack the locus standi to institute the proceedings since prerogative writ proceedings are always instituted in the name of the sovereign and the sovereign always has the locus standi to have such writs issued against public authorities including the sovereign’s own Ministers acting or threatening to act unlawfully or ultra vires. He said Gaskin instituted the proceedings on behalf of the people of Guyana complaining to the court that public authorities in the personage of the Public Works Minister and the National Industrial and Commercial Investments Limited (NICIL) Executive Director, have acted or are threatening to act unlawfully or ultra vires.

Chang noted though that even though Gaskin, has the locus standi to bring the proceedings, he is not entitled to the prerogative writ remedy ex debito justitiae (as a matter of right) – even though the court can grant him such remedy as a matter of pure discretion and he cited the case of R v Thames Magistrates’ Court, ex parte Greenbaum (1957). He continued, that the court can refuse the prerogative writ remedies if the court takes the view that the applicant has instituted the proceedings for motives which are not primarily of the public interest or that no good would be done to the public if the writ(s) are issued. He said too that even where the remedy of Certiorari of Prohibition lies ex debito justitiae, this does not mean that the court, for that reason, has no discretion to withhold the remedy.

Justice Chang concluded that gist of Gaskin’s complaint is that government, the Public Works Ministry and NICIL, did not conduct the tender process for the Amaila Falls Project in accordance with or under the mandatory provisions of the Procurement Act 2003 and the Regulations made thereunder and in breach of the constitutional intendment for transparency and fairness or that they participated in the conduct of such process when it or they had no authority to do so.

The Chief Justice pointed out that the applicant cited Article 212W of the Constitution which pertains to the establishment of a Public Procurement Commission for the purposes of monitoring public procurement. However, the commission is yet to be set up and Justice Chang ruled that neither the Ministry of Public Works nor NICIL could be made to operate within the context of the said commission. “As such, award of the contract cannot be rendered null and void for reason of the non-operability of the Public Procurement Commission and the Public Procurement Commission Tribunal”.

In examining other issues raised by Gaskin, the Chief Justice said that a perusal of section 30 of the Procurement Act 2003 reveals nothing which can be construed as prohibiting a procuring entity from authorizing an agency such as NICIL, to act on its behalf for the purpose of inviting proposals or tenders.

Gaskin identified the Public Works Ministry as a “procuring entity” within the definition of section 2 (b) of the Act and counsel on his behalf, Neil Boston, argued that it was legally wrong for the government to have invited Requests for Proposals (RFP) in the name of the procuring entity. It was submitted that the Government is not a procuring entity for the purpose of the Procurement Act yet in exhibits provided the governments appears as the procuring entity.

But Justice Chang noted that if counsel’s submission is correct, it would lead to the absurd position that whenever the Government of Guyana is stated as a procuring entity, then the procuring entity can operate outside of the parameters of the provisions of the Procurement Act since the provisions of the Act would have no application to the Government as a procuring entity. “Such an interpretation of the words ‘Government of Guyana’     will open the door to nullification of the entire Procurement Act by the Government of Guyana by simply avoiding the use of specific Ministries, departments or Government units as procuring entities”.

He ruled that in the exhibits submitted the words ‘Government of Guyana’ as used in the advertisements could not have been publicly understood otherwise than in the context of whatever individual ministry or department of government happens to have responsibility for the particular project which is the subject of the tender invitations (by whatever name called). He said the clear purpose of the use of the words in the RFP was to inform the tendering public.

He said too that his court was not seeking to judicially legislate as to the meaning of the words “procuring entity” under the guise of statutory interpretation since those word have already been clearly defined in section 2 (L) of the Act; he emphasized that the court was also not seeking to redefine the words which Parliament has already defined.

Justice Chang also argued that the procuring entity has no obligation under section 30 (1) to invite tenders via the internet, as submitted by Gaskin’s legal team. He called Gaskin’s contention that the procuring entity had to solicit tenders by way of the internet, misconceived.

The Chief Justice also found that the Affidavit in support of the Notice of Motion contained no evidence to support the allegation that government through the Public Works Minister and NICIL’s Executive Director awarded the contract to Synergy. He said too that there is no evidence in the Affidavit that the evaluation of the tenders was conducted by either of the two officials named. Further, he said the Affidavit also contains no evidence to enable a finding that the award of the contract to Synergy was unreasonable or irrational.

The Chief Justice also found that while the affidavit in support of the motion is pregnant with alleged breaches of procedure, it is somewhat lacking in allegations of fact in support of those procedural breaches.

The contract awarded to US-based Synergy Holding Inc  is for the “the upgrading of approximately 85 km of existing roadway, the design and construction of approximately 110 km of virgin roadway, the design and construction of two new pontoon crossings at the Essequibo and Kuribrong rivers.” The fourth part of the project is for the clearing of a pathway alongside the roadways to allow for the installation of approximately 65 km of transmission lines.

Synergy Holdings Inc. was awarded the US$15.4 million contract for the first phase of the Amaila Falls Hydro- electric Power Project (AFHEP) based on the fact that it submitted the lowest tender to the National Industrial and Commercial Investments Ltd (NICIL), but questions have been raised about the capacity of the company to execute the project.