-disputed contract was signed on New Year’s Day, evaluation committee erred on two guidelines
It took eight months for the PPC to throw out a complaint by R Kissoon Contracting Services over a bid for D&I pumps but more irregularities have surfaced in the tendering system including errors by the evaluation committee and the signing of the disputed contract on January 1st 2023, a national holiday.
R Kissoon complained to the Public Procurement Commission (PPC) on January 24, 2023 that its bids for the maintenance and servicing of drainage and irrigation pumps were unsuccessful even though they were the lowest for two lots and met all of the requirements. It said to the PPC that it had lodged a complaint with the National Procurement and Tender Administration Board (NPTAB) but had gotten no response within the statutory period. The Procurement Act requires the lodging of a bid protest with the procuring entity, in this case the National Drainage and Irrigation Authority (NDIA) and not the NPTAB.
In its Summary of Findings adopted on February 29th this year, the PPC said it nevertheless decided to investigate the matter given its wide constitutional mandate.
The PPC’s Summary of Findings is replete with instances where both the NPTAB and the NDIA ignored requests for crucial clarifying information.
The PPC discovered based on the documents submitted to it that the Evaluation Committee of the NPTAB said R Kissoon was non-responsive on three of the criteria and its bids were therefore thrown out. However, the PPC found that R Kissoon could possibly only have been deemed non responsive in relation to one guideline and had actually complied with the other two.
This discovery will raise further questions about the arbitrary conduct of the evaluation committees of the NPTAB and how certain contractors could be favoured over others. In a recent controversial case, despite having failed several guidelines, including the requirement to have previously built a pump station, the evaluation committee admitted the bid of Tepui Inc as responsive. Tepui was later awarded the contract and this has triggered a major controversy.
The PPC found that the complainant was deemed non-responsive by the Evaluation Committee for failing to satisfy three of the Evaluation Criteria – financial and technical, particularly – Criteria #9: Evidence of financial capacity representing (25%) for each individual lot. The bidder must provide a bank statement or line of credit from a bank or a recognized financial institution. The document must be dated within one month of the bid opening date and be clearly legible.
Included in the record of the tender proceedings submitted by the NPTAB to the commission, was a Statement from Republic Bank (Triumph Branch) evidencing a bank account balance of the complainant in the sum of $40,957,648. The statement was dated December 16th, 2022, that is, within one month of the bid opening on December 20th, 2022 as required.
Also included was a letter from the Guyana Bank for Trade & Industry (GBTI) dated December 19th, 2022 advising of line of credit facilities to the complainant. The letter further informed that GBTI was aware that the complainant submitted a tender and should the need for financing arise, same will be provided on condition that the relevant requirements are met.
The PPC’s Summary of Findings said that the Evaluation Report was silent on and devoid of any analysis on the deemed non-responsiveness.
Accordingly, the PPC wrote to the NPTAB requesting an explanation on the basis on
which the complainant was deemed non-responsive to the said criteria.
NPTAB did not respond to the request of the commission.
Debit balances
Nonetheless, the commission said it proceeded to consider the matter and found that the Line of
Credit could not properly be taken into account as the facilities were with unspecified debit
balances (actual sums not stated) and financing was conditional, not guaranteed.
The Bank Statement balance of $40,957,648 was however prima facie
sufficient to satisfy the requirement of evidencing 25% financial capacity of the complainant’s bid price for Lots 2 and 4, individually, not cumulatively.
The PPC said that it appeared that the Evaluation Committee applied the 25%
financial capacity requirement, cumulatively and not by each block individually. Therefore, the
sum of $40,957,648 was not sufficient to satisfy the total bid price of the complainant for all three of the tendered Lots.
The PPC said that while evaluation criteria appear to have been applied cumulatively, the awards were however made by way of each individual Lot and not en bloc. That is, the lowest
evaluated tenderer for each Lot was awarded that particular Lot.
In relation to Criteria # 15: Ownership of key equipment, the PPC found that R Kissoon submitted sufficient information to prove it was in compliance with this guideline contrary to what the evaluation committee said.
The commission wrote to the NPTAB also requesting an explanation on the basis on which the
complainant was deemed non-responsive to this criterion as there was no analysis evident in the
Evaluation Report. There was no response from the NPTAB.
In relation to criteria #18: Bidder must provide audited financial statements for the past three
years for incorporated companies. Financial statements must be audited by a
Chartered Accountant/accountancy firm and include an auditor’s note.
Or Registered businesses must provide Balance Sheets, Profit and Loss Accounts, and
Income and Expenditure Accounts for the past three years. These financial statements
must be approved by a Chartered Accountant/accountancy firm, the PPC found that R Kissoon was in compliance.
“Included in the record of the tender proceedings which was submitted by NPTAB to the
commission, are financial statements of the complainant for the three (3) years prior to the tender
opening, that is, 2019-2021, inclusive, which were prepared and approved by the accounting firm
Barcellos Narine & Co. An independent Auditor’s Report for each year was also included.This is prima facie in compliance with the aforesaid criteria”, the PPC said.
The PPC in its Summary of Findings said it also requested an explanation from the NPTAB in writing on the basis on which the complainant was deemed non-responsive to this criterion and again there was no response.
Two clear business days
By way of a letter from NDIA dated March 21st, 2023, the PPC was informed that a contract was signed for Lot 3, only. On review of the contract, the commission noted that the contract was dated January 1st, 2023, that is, only two clear business days after the contract award was made and being a national holiday.
The PPC by way of letter to NDIA dated March 31st, 2023, requested
the following further information within ten days-
• when was notice given to the awarded contractor, Roopan Ramotar Investments in
accordance with S. 42(1) of the Procurement Act, and a copy thereof,
• whether Sections 11, 39(3) and 43 of the Procurement Act were complied with,
• what steps if any were taken to verify whether the contract award decision was published
on the website of NPTAB prior to the entry into the contract, and
• whether you are in receipt of the Bid Protest from R. Kissoon Contracting Service dated
January 11th, 2023, and if so, whether there was a response thereto.
Notwithstanding follow ups and a written reminder of June 16th, 2023, the NDIA
did not respond to the letter.
Included in the contract document for Lot 3 submitted to the commission by NDIA on
March 21st, 2023, is a Letter of Acceptance addressed to Roopan Ramotar Investments and dated
January 1st, 2023. The contract was also executed on January 1st, 2023.
The PPC pointed out that S. 52 of the Procurement Act, Cap. 73:05 provides that a bidder may invoke an administrative review process to object to the rejection of its bid by lodging a written
bid protest “within five (5) business days following publication of the contract award
decision.”
The purported signing, therefore, two clear business days after the contract award
decision infringed on the complainant’s right to protest the award, five business days from the contract award not having elapsed, the PPC noted.
It said that the violation was further compounded by the absence of “publication” of the contract award decision prior to the signing of the contract.
Despite all of the shortcomings it cited, the PPC ruled that “Strictly, there was nothing which expressly prohibited the Evaluation Committee from applying Criteria #9 cumulatively thereby deeming the complainant nonresponsive”.
Although the complainant was wrongly deemed to have not satisfied Criteria #15 and
#18, the failure to satisfy Criteria #9 (evidence of financial capacity) enabled the Evaluation Committee to deem it nonresponsive as the bidder was obligated to satisfy all of the required criteria, the PPC said.
As it had done in relation to its findings on the Tepui Contract, the PPC lamented the failure of the NPTAB and NDIA to respond to requests for information and made a series of recommendations.
The complaint by R Kissoon to the NPTAB was signed by its General Manager Rudranauth Roopdeo.
