The Public Procurement Commission (PPC) on December 29th rejected a complaint by Akamai Inc over a contract award, leaving the company dissatisfied and Member of Parliament David Patterson charging that there had been a whitewashing of the matter.
Yesterday, Chair of the PPC, Pauline Chase wrote Akamai Chief Executive Officer (CEO), Brian Hackett in response to his August 16th letter of complaint and essentially upheld the decision of the Evaluation Committee of the National Procurement and Tender Administration Board (NPTAB) that the company’s bid was non-responsive.
Hackett had sought a resolution to unanswered attempts to obtain from the procuring entity, the Hinterland Electrification Company Inc, (HECI) the reason for the rejection of the bid.
Subsequently, the PPC received from Hackett an Application for an Administrative Review dated September 6, 2023. In the letter to Hackett, Chase said that the application appeared, prima facie, not to have complied with the procedure set out in the Procurement Act, Cap. 73:05. This entailed the lodging of a Bid Protest. Chase pointed out that the letter of July 17, 2023 to the procuring entity requested the reasons for the rejection of the bid as distinct from protesting its rejection in conformity with the Act.
Notwithstanding this, Chase said that the commission in exercise of its discretion under its constitutional mandate reviewed the subject tender proceedings. She said that the Report of the NPTAB Evaluation Committee disclosed that Akamai’s bid was deemed non-responsive as it was not compliant with –
● Criteria #10 – Demonstrate experience by providing documentary evidence that shows:
(a) Similar goods were provided in a (sic) least one (I) contract in the last two (2) years
to a minimum value of (GYD $5,000,000.)
Chase said that the record reflects that under this head, Akamai submitted a spreadsheet listing certain projects.
“The Evaluators did not deem this as “documentary evidence” satisfying the criteria. The record does not reflect the submission of supporting executed contracts or other corroborating documents”, Chase wrote.
● Criteria #17 – Bidder must provide a letter stating any or no terminated (sic) …projects. The letter has to be dated within one month of the bid opening date. If there were no terminations, a statement must also be given indicating such.
Chase said that the record of the tender proceedings does not reflect the submission of the aforesaid letter.
In accordance with the Procurement Act, Cap. 73:05, in order to be deemed responsive and considered for a contract award, the bidder must satisfy all of the evaluation criteria, she said. The failure to satisfy any one of the evaluation criteria will result in the bid being deemed non-responsive and thereby not considered for the award.
“Therefore, on the aforesaid, you were deemed non-responsive and therefore not the lowest evaluated tenderer in accordance with S. 39 of the Procurement Act, Cap. 73:05”, Chase stated in the letter to Akamai.
The contract was awarded to Tels Engineering Service who submitted the second lowest at $124, 768,000 but was deemed the lowest evaluated bidder having satisfied all of the evaluation criteria.
Stabroek News yesterday contacted the CEO of Akamai Inc who said that he completely disagrees with the PPC findings.
He maintained that his company’s bidding price was far better than Tels Engineering’s and was responsive.
Hackett said that the issue lies with the NPTAB failing to indicate the date the contract was made public which was crucial to him in filing his bid protest.
“Until that is done, the PPC chairperson cannot say that I did not meet the evaluation criteria”, the CEO said.
“What is on the record which the Chairperson identified was that NPTAB did not indicate the publication date of that awarded contract, and that is what the law requires but the tender board did not do that”, he stated.
“I have five days to register my complaint, so I don’t agree with that statement in the PPC’s letter”, Hackett.
The Akamai CEO said that he will seek legal advice on the way forward. He said that the best option now might be through the court of law.
Patterson was scathing in his rejection of the PPC’s findings. In a letter to the editor (see page 6), the MP charged that the report is a whitewash of the administrative review process and falls short of the standards expected from a constitutional agency.
He noted that the Office of the Prime Minister issued an invitation to bid for line hardware in March 2023 with the bid opening slated for April 2023. Five bids were submitted and Patterson said that unsurprisingly the lowest bid by Akamai Inc. was the only bid deemed non-responsive. He noted that Akamai Inc is the sole distributor of the requested line hardware; hence it was expected that the company would submit the lowest bid.
Patterson noted that the NPTAB evaluation committee deemed Akamai Inc. non-responsive because it was claimed that:
a) the bidder failed to submit documentary evidence to demonstrate supply of similar goods in at least 1 contract in the last two years to a minimum value of G$5M and
b) the bidder failed to provide a letter stating that the company had no terminated projects.
Patterson said that there was no prescribed format for the submission of evidence of previous projects, and hence Akamai Inc. submitted a spreadsheet detailing all their previous contracts, detailing the procurement agencies as well the contract sums.
“However, not surprisingly, in an effort to deem the bidder non-responsive, the procurement agency found this detailed listing unacceptable.
“Additionally, a simple conversation with the bidder revealed that he did in fact fulfill the second requirement which the evaluation committee deemed non-responsive – which was a letter addressed to the procuring entity stating specifically that none of their projects was ever terminated – clear evidence that this information was fraudulently omitted by the evaluation committee or ignored”, Patterson charged.
In arriving at its report to support the award, he said that the PPC never contacted the bidder, seeking clarifications on the claims for debarment made in the evaluation report, as is standard when reviewing complaints, whereby all parties to the complaint should be given an opportunity to defend their position. He said that the PPC simply adopted a defective report, performed no investigative analysis and “rubberstamped” the award.
Patterson said that when contacted, the AFC-nominated commissioner on the PPC highlighted that a) both opposition commissioners found the submission by Akamai of the list of projects comprehensive and acceptable and b) that they were unware that the bidder had actually submitted the claimed missing letter regarding terminated projects. Patterson said that the AFC-nominated commissioner also informed that she recommended that natural justice procedures be adopted, whereby all parties should be given an opportunity to respond before a final decision is made by the commission, however this was overruled by the majority vote of the PPC.
Strangely, but not unsurprisingly, Patterson said that the PPC failed to highlight that section 5 (5) (a) of the Procurement Act specifically states “a procuring entity may not disqualify a supplier or contractor on the ground that information submitted concerning the qualifications of the supplier or contractors was inaccurate or incomplete in a non-material respect.” Patterson said that the claimed incomplete information as supplied by this contractor are all non-material in every respect, and in accordance with the Act, such non material deficiencies can be remedied.
“The PPC, a constitutional agency with an annual budget of almost $300M has taken eight months to respond to the bidder’s complaint, and in the end simply rubberstamped a defective and possibly fraudulent evaluation report, without even giving the complainant the opportunity to prove otherwise”, Patterson lamented.
Patterson added that the public would have been mistaken if they assumed that any investigation by PPC would have been in-depth, whereby a review of the entire bidding process would have been conducted, including a full examination of all documents submitted by all bidders, review of the responsiveness of the bidders and then a final determination of who is deemed successful.
Summary
In the summary of the PPC’s findings, Chase noted that on July 17, 2023, Akamai Inc. wrote to the Hinterland Electrification Co. Inc. objecting to the award to Tels Engineering Service. Akamai Inc. further requested the reasons why their tender was not successful. They contended that-
● their bid price was substantially better than Tels Engineering, and
● their technical specification met GPL standards being above the requirements set out in the bid document.
The said letter which was copied to the PPC referred to a letter to the NPTAB dated June 1, 2023, to which they stated they did not receive a response.
On August 16, 2023, Akamai Inc. wrote to the PPC “to register a complaint about [their] attempts to obtain from the procuring entity (Hinterland Electrification Co. Inc.) the reasons [they were not awarded the [subject] contract. “
On September 6, 2023, the commission responded in writing informing that strictly, there was no express provision within the governing Procurement Act, Cap. 73:05 which compels a procuring entity to provide reasons for the rejection of a bid. The tenderer company was further advised as to the processes available if they are dissatisfied with the rejection of their bid on good grounds, to wit, applying for an Administra-tive Review or requesting an investigation.
Subsequently on September 6, the commission received an application for an Adminis-trative Review. The breach alleged was that of S. 10 of the Procurement Act, Cap. 73:05.
On the following day the commission informed NPTAB of the complaint received and, pursuant to Article 212DD of the constitution of the Co-operative Republic of
Guyana, requested that they submit to the commission within three days of the date thereof-
i. a copy of the Record of the procurement (tender) proceedings including the Evaluation Report and all other such relevant documents, and
ii. the date of publication of the tender award.
The procuring entity, HECI was similarly on the said day also informed of the complaint and similarly requested to submit within five days:
1. a copy of the Record of the tender proceedings (tender) proceedings including the Evaluation Report and all other such relevant documents,
11. whether the contract therefor has been entered into, and if so, a copy thereof and
111. whether the procuring entity complied with S. 39(3) of the Procurement Act, Cap. 73:05 by considering that the Evaluation Report for the subject tender and thereby indicated their agreement or disagreement therewith, prior to the contract award.
On November 1, 2023, almost one month later, NPTAB responded to the request facilitating a copy of Evaluation Report and other documents relating to the tender proceedings.
Chase said that there was no response to the request for the date of publication of the contract award.
There was also no response from the procuring entity within the time delimited and or at all.
Chase said that as noted by this commission before, a procuring entity is expected to maintain systems of the highest integrity in ensuring an accurate record of the tender proceedings, including documents submitted by bidders.
“This is imperative since there is no mechanism within the current tender procedure of independently verifying documents submitted to, and or received by, the procuring entity. A Bid is submitted in a sealed envelope and only the administrative requirements are read and recorded at the opening. The tenderer is not given a receipt of what is in fact received by the procuring entity.
“The commission is cognizant that a record may not be accurate for a number of reasons, such as but not limited to, negligence on the part of the tenderer and or procuring entity, innocent but mistaken belief of submission and the misplacement of documents (intentional or unintentional). The forum for settlement of such conflicts, should they arise, would be the court. Unlike other enquiry bodies, the PPC is not vested at this time with the requisite enabling legislative framework to subpoena witnesses, administer oaths and or examine witnesses so as to arrive at a determination as a fact as to an act or omission relating to the record and where such responsibility lies”.
In its findings and recommendations, the PPC criticised the NPTAB and the procuring entity.
“The commission is once again compelled to express its disappointment and concern at the non-response by the procuring entity and sloth of response by NPTAB to the request for information by the commission. In addition to adversely affecting the work and efficiency of the commission, it also unnecessarily undermines transparency. The commission urges procuring entities and NPTAB to be better responsive”, it said.
The PPC also noted that in the absence of response (as those matters are only within the purview of the procuring entity and or NPTAB and not the complainant) there is nothing before it to show:
1. that S. 39(3) of the Procurement Act, Cap. 73:05 was complied with;
11. when the contract award was published, particularly, whether prior to the entry into force of the contract so as to give bidders the statutorily provided five days for a Bid Protest.
“While the aforesaid does not necessarily affect the contract award in this particular matter, the lack of compliance could adversely affect the right of a bidder to lodge a Bid Protest and benefiting from the remedies thereunder which are wider than that on an investigation of the commission which has no binding authority. Pursuant to Section 53 of the Procurement Act, Cap. 73:05 the timely lodging of a Bid Protest suspends the final contract award and decisions made thereunder are binding on the procuring entity”, the PPC said.
The commission therefore encouraged pro-curing entities and NPTAB to ensure strict compliance with the aforesaid statutory requirements so as to not undermine transparency and confidence in the system which are imperative for its good functioning.
The commission also recommended that the NPTAB immediately acts on its request made in May 2023 to amend its website to include in the table of the publication of contract award decisions, the date of publication of the contract award.
