The Public Procurement Commission (PPC) yesterday fired back at former minister of Public Infrastructure David Patterson, who said the PPC’s review of the complaint by Akamai Inc against the tender process which claimed the company was found wanting, was a whitewash of the administrative review process and fell short of the standards expected from a constitutional agency
In its response, the PPC said that not only did Patterson withhold on accuracy of the issue which can be found on its website, but he attempted to politicise the matter by saying only PPP/C representatives on the commission voted on the matter when all others did except the candidate from the AFC – Patterson’s party.
“[Patterson] contends that the commission in its consideration of a complaint lodged by Akamai Inc by and through Mr Brian Hackett, Chief Executive Officer, failed to consider the accuracy of the record of the tender proceedings and in so doing ‘…simply adopted a defective report, performed no investigative analysis and rubber stamped the award.’ The commission however did consider the possibility of the inaccuracy of the record of the tender proceedings and respectfully draws attention to paragraphs 23-25 of its Summary of Findings, which were not disclosed by the author, to wit – [23] Section 10(1) of the Procurement Act, Cap. 73:05 expressly vests the procuring entity with the responsibility of maintaining a record of the tender proceedings. Parties are thereby bound,” the PPC yesterday responded in a release.
The PPC said it had pointed out that a procuring entity was by such statutory responsibility 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 PPC release stated.
“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.”
The PPC said that unlike other enquiry bodies, it was 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.”
Pointing to another case it administered, the PPC said in the Summary of Findings, “the complainant is not left without remedy as there is recourse to the Court against the procuring entity, criminal or civil as the circumstances may dictate, being the appropriate forum for the settlement of such disputes of allegations of fact as to what was alleged to have been submitted and what was in fact received.”
The PPC charged that Patterson, “on divulged reliance of statements by ‘AFC nominated commissioner’ Dianna Rajcumar, mischievously sought to divide the commission by giving the further erroneous impression that the findings of the commission were not supported by [the two] opposition nominated commissioners.
“As the record of the commission, including its Minutes, unanimously adopted, corroborates, the Summary of Findings of the commission in this matter was adopted and accepted by all of the commissioners, except ‘the AFC nominated’ commissioner.”
The PPC said that other findings by the commission against the procuring entity and tender board were not highlighted by Patterson.
The PPC said that it, as a constitutional body, “welcomes scrutiny” but that it has had to too often address and correct inaccurate and erroneous statements coming from Patterson.
On December 29th the PPC rejected a complaint by Akamai Inc over a contract award, leaving the company dissatisfied and Patterson charging that there had been a whitewashing of the matter.
On Friday, Chair of the PPC Pauline Chase wrote to Akamai’s Chief Executive Officer 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 Electri-fication 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 (1) contract in the last two (2) years to a minimum value of (GYD $5,000,000).”
Chase said the record reflected 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 did 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 which submitted the second lowest bid at $124,768,000 but was deemed the lowest evaluated bidder having satisfied all of the evaluation criteria.
When Stabroek News contacted Hackett, he said that he completely disagreed with the PPC’s findings. He maintained that his company’s bidding price was far better than Tels Engineering’s and was responsive.
Hackett said that the issue lay 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,” he 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.
“I have five days to register my complaint, so I don’t agree with that statement in the PPC’s letter.”
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.
