On 4 June 2021, the Caribbean Court of Justice (CCJ) dismissed an appeal against a decision of the Court of Appeal of Guyana in the consolidated matter of Guyana Geology and Mines Commission v BK International and Chunilall Baboolall; and Chunilall Baboolall v BK International and Guyana Geology and Mines Commission [2021] CCJ 13 AJ (GY). On that date, the Court stated that it would give the reasons for that dismissal at a later date.
Today, the Court issued those reasons. In a summary of its decision, the CCJ said that around June 2013, the Guyana Geology and Mines Commission (GGMC) invited bids through a public advertisement for the rehabilitation of the Aremu Road in Region 7. The advertisement stated that bidding would be done according to the Procurement Act Cap 73:05.
The summary said that the GGMC shortlisted four “prequalified” entities to submit bids but only three responded to the invitation: CB&R Mining (“CB&R”); MMC Inc; and BK International Inc (“BK”). BK tendered the lowest bid and CB&R’s bid lacked certain important documentation. “Nevertheless, GGMC contracted with Baboolall, on behalf of CB&R, to execute the road rehabilitation works”, the CCJ noted. BK was dissatisfied with the GGMC’s decision and initiated an action in the High Court to invalidate that decision.
At the High Court, the CCJ said that GGMC contended that it was not a “procuring entity” as defined in the Procurement Act Cap 73:05 and was therefore not required to follow the procurement procedures in the Act. The CCJ noted that the statutory definition of a procuring entity included Government agencies, but GGMC argued that it was a private body in law. The Guyana High Court rejected that argument, holding that GGMC was a public agency under the Ministry of Natural Resources and the Environment. GGMC and Baboolall, appealed this High Court decision to the Court of Appeal but that Court agreed with the High Court and dismissed the appeal.
GGMC and Baboolall subsequently appealed to the CCJ, which then identified three issues for determination: (1) was the GGMC a “procuring entity” under the Procurement Act? (2) was judicial review available to challenge GGMC’s decision to award the contract to Baboolall?; and (3) did GGMC comply with the Procurement Act?
Anderson JCCJ, who delivered the judgment of the CCJ stated that the GGMC was a government agency because of three main factors: (1) the public nature of its functions; (2) the extensive ministerial control exercisable over it; and (3) the sources of its funding included inflows from the Government.
“As an agency of the Government, GGMC fell under the definition of a procuring entity in the Procurement Act and, therefore, had an obligation to conduct bidding according to that Act. Anderson JCCJ also found that judicial review was available to BK because GGMC was conducting a public function, that is, a road rehabilitation project, where the funding came from the Government”, the summary said.
Further, Anderson JCCJ considered that BK had a legitimate expectation that GGMC would adhere to the Procurement Act. The judge then determined that there were several instances where the GGMC had not complied with the Procurement Act; for example, the rejection of BK’s bid was not done in accordance with the Procurement Act. Further, there was no proof of how CB&R, or any of the bidders for that matter, were “pre-qualified”.
Wit JCCJ, in a concurring opinion, added that judicial review in a constitutional democracy like Guyana must be brought under the umbrella of constitutional values and principles. Doing this, he said, broadens the scope of judicial review. Jamadar JCCJ underlined that in countries with written constitutions, courts must ensure that administrative decisions accord with fundamental constitutional and human rights values and principles.
Nikhil Ramkarran and Rebecca Khan appeared for the Guyana Geology and Mines Commission; Edward Luckhoo SC and Robin Stoby SC appeared for BK International Inc, and Chandrapratesh Satram, Roopnarine Satram, and Ron Motilall appeared for Chunilall Baboolall.