Former Auditor General Anand Goolsarran says the Ministry of Education, the national tender board and Cabinet all failed in their duty to the public by not acting to stop Kares Engineering Inc from securing a $566.9m North Ruimveldt Secondary School contract considering its previous poor performance on an even larger project.
In his accountability column in today’s Stabroek News, Goolsarran said that after the Evaluation Committee of the National Procurement and Tender Administration Board (NPTAB) had concluded its work and recommended Kares, the procuring agency – the Ministry of Education had an obligation to take account of Kares’ disastrous work on the $728m Kato Secondary School project of 2012.
Goolsarran said that Section 5 of the Procurement Act sets out the responsibilities of the procuring entity – the Ministry of Education – in relation to the criteria to be used in determining the qualifications of contractors and suppliers.
“Included in the list of criteria is the requirement that past performance substantiated by documentary evidence would commend the concerned contractor or supplier for serious consideration for the award of the contract. The Ministry of Education therefore had the obligation of ensuring that Kares Engineering met this criterion before consideration of its tender”, Goolsarran contended.
He pointed out that the Ministry had the power to reject the recommendation of the NPTAB’s Evaluation Committee. He said that if the procuring entity does not agree with the Evaluation Committee’s determination, it must issue an advisory recommendation to the Committee regarding which tender should be the lowest evaluated tender, “which recommendation the Evaluation Committee must observe”.
Goolsarran concluded “…the first line of action as it relates to Kares Engineering was for the Ministry of Education to disqualify the company on the basis of unsatisfactory performance in the past. Kares Engineering’s tender should have been deemed unresponsive and excluded from the technical evaluation”.
The ministry did nothing of this sort. After the matter of Kares’ poor performance on the Kato project was raised by Stabroek News, Minister of Education Priya Manickchand was contacted for a response. Manickchand, under whose tenure the construction of the Kato Secondary School commenced in 2013, said “it is hard to forget the issues with Kato Secondary School and we must ensure that we hold contractors liable when these things happen.”
She told Stabroek News that the Ministry is hoping that there is a reenergized, reinvigorated and robust effort to monitor projects to ensure that there is both quality and timely completion. She explained that a contract for the supervision of the project was awarded to consultant Marcel Gaskin – who also designed the school.
“We are already clear about what we wanted from the contractors not because we knew Kares was going to have the contract, we did not know that at the time, but it is a big enough undertaking and an important enough undertaking for us to finish in a timely manner and that is why we went in that direction [to have a supervisory consultant].
“The truth is we are going to have to rely on people’s professionalism and commitment to service. Once we have professionals hired to do jobs and Marcel is a professional, Kares are professionals and I was very clear (at the contract signing) that we would have no hesitation in applying penalties such as liquidated damages as per the contract if there is any breach of the contract,” Manickchand related.
The minister added that she did not have a discussion with Kares Engineering, prior to the signing of the contract and would not be doing so. She explained that she does not meet with contractors behind closed doors.
“I didn’t sit down personally with Kares. A contract was signed with Kares and publicly from the podium over a mic in the presence of an entire press corps I said what was expected and what would happen if those expectations were not met pursuant to the contract, not pursuant to my whim and fancies,” she said.
Manickchand added that the Ministry will also have its own engineer and Education Officer to report on the progress of the project.
Goolsarran also caned the NPTAB. He noted that in response to Stabroek News reports, the NPTAB defended the award of the contract, contending that its hands were tied since unsatisfactory performance was not one of the evaluation criteria.
“However, past performance is one of the qualification requirements that determines the responsiveness of tenders. NPTAB must have been aware of Kares Engineering’s unsatisfactory performance on two previous contracts and should have brought the matter to the procuring entity’s attention for appropriate action to be taken.
“NPTAB is not a passive player in the procurement process. It is responsible for exercising jurisdiction over tenders the value of which exceeds such an amount prescribed by regulations, appointing a pool of evaluators for such period as it may determine, and maintaining efficient record keeping and quality assurances systems. NPTAB comprises seven persons of ‘unquestioned integrity who have shown capacity in business, the professions, law, audit, finance and administration’, including a full-time chairperson and one other full-time person. It is also supported by a Secretariat comprising professional staff of ‘proven experience and capabilities’ and headed by the Chief Executive Officer. The current chairperson is a senior official of the Ministry of Finance responsible for … monitoring the timely execution of the Government’s public investment programme and therefore this aspect of the Act has not been adhered to”, Goolsarran asserted.
He noted that the NPTAB had further argued that the responsibility for debarring contractors and suppliers for unsatisfactory performance or fraudulent practices rests with the Public Procurement Commission (PPC) and not NPTAB. However, Goolsarran pointed out that prior to the establishment of the PPC in 2016 after a 13-year delay, the responsibility for adjudicating debarment proceedings was that of NPTAB.
“Considering that the contract for the construction of the Kato Secondary School was awarded in 2012 and the works completed in 2015, NPTAB would have been responsible for instituting debarment proceedings against the company”, Goolsarran argued.
As it relates to Cabinet, Goolsarran said that under Section 54 of the Procurement Act, all proposed contracts in excess of $15 million have to be referred to it for the grant of ‘no objection’ based on a streamlined evaluation report setting out the basis for the proposed award. He noted that Cabinet can object to the award of a contract if the required procedures have not been followed. When this happens, the matter is referred to the procuring entity for further review.
“The Cabinet should have objected to the award of the contract to Kares Engineering on the ground that the Ministry of Education failed to adhere to the requirements of Section 5 of the Act dealing with qualifications of contractors and suppliers”, Goolsarran declared.
He also observed that upon the establishment of the PPC, Cabinet’s involvement was to have been progressively phased out in favour of a decentralized system. Further, he pointed out that sub-section 6 states that the Cabinet’s involvement shall cease upon the constitution of the PPC. The first PPC was established on 28 October 2016 but Goolsarran said that there is no evidence that the Cabinet has given up its role in the procurement process.
Goolsarran also noted that in defending its decision in response to an editorial in Stabroek News, the NPTAB had argued that Kares’ bid was the lowest responsive one as two others had failed to meet evaluation criteria. Goolsarran however contended that it was not the lowest responsive tender that would have to be considered but the lowest evaluated tender. The NPTAB statement in response to the Stabroek News editorial did not refer to the lowest evaluated bid.
PPP/C governments have come under close scrutiny over procurement awards over concerns that companies close to them are favoured.
