-laments six-month delay in receiving information
Following a complaint by M S Invest-ments, the NPTAB was found to have erred in its evaluation of tenders for the supply of food to the prisons and the Public Procurement Commission (PPC) recommended remedial action and lamented the six months it took for answers to be provided in its investigation.
In its Summary of Findings published on February 2nd this year, the PPC said that on June 6th 2023, it received a letter dated May 30th, 2023 from MS Invest-ments Manager, Siddiq Mohamed alleging irregularities in the awards for the procurement of dry and fresh rations for the Guyana Prison Service. He related to the PPC that on Tuesday May 30th, 2023, he received a Request to Purchase (RTP) for Timehri Prison via WhatsApp from the procuring entity listing the items that he was awarded through the evaluation process. That message also contained a RTP for another bidder for the said tender which showed that the other bidder was awarded for four items, the price of which was higher than the bid of the MS Investments, to wit, for fresh beef, salt beef, mince beef and yam.
The complainant also attached a letter he sent to the National Procurement and Tender Administration Board (NPTAB) dated May 30th, 2023, outlining the aforesaid. He also attached a letter dated May 31st, 2023, from him to the Permanent Secretary of the procuring entity, the Ministry of Home Affairs requesting that the matter be resolved within five working days failing which he would make a request to the PPC for an investigation.
The complainant requested that an investigation be launched by the PPC as the contract was due to be signed on June 6th, 2023, the date the letter was received by the commission.
On June 9th, 2023, the PPC informed the NPTAB about the complaint and request a variety of information within five days as follows:
i. a copy of the tender documents, Report of the Evaluation Committee and all other such relevant documents touching and concerning the tender,
ii. confirmation whether the contract therefor had been entered into, and if so, particulars thereof,
iii. confirmation of whether S. 39(3) of the Procurement Act, Cap. 73:05 was complied with, that is, whether the Report of the Evaluation Committee was sent to the procuring entity and they had given their approval or disapproval prior to the contract award decision and its publication,
iv. whether the contract award decision has been published on the Board’s website as mandated by S. 11 of the Procurement Act, Cap. 73:05.
The PPC said that the NPTAB responded to the commission’s request by way of letter dated June 13th, 2023, and received by the commission on June 22nd, 2023. It stated that-
i. Copies of the tender documents, Report of the Evaluation Committee and all other such relevant documents with reference to the subject tender were attached,
ii. The Ministry of Home Affairs signed contracts with the recommended suppliers on June 5th, 2023,
iii. Pursuant to S. 39(3) of the Procure-ment Act, Cap. 73:05, a copy of the Evaluation Report and recommended tenderers was shared with the procuring entity,
iv. Pursuant to S. 11(1) of the Procure-ment Act, Cap. 73:05, the award was published on NPTAB’s website on April 20th, 2023.
Although stating that “the tender documents, Report of the Evaluation Committee and all other such relevant documents with reference to the subject tender” were attached to the said letter dated June 13th, 2023, the PPC said that they were not attached. The commission after numerous follow-ups and a public disclosure by way of Press Release on October 31st, 2023, as to the non-submission of information to the commission to permit pending investigations, the commission finally received from NPTAB in November 2023, a copy of the tender proceedings, including the Evaluation Report. That is, some five months after the request therefor.
The PPC said that a similar request was made to the Ministry of Home Affairs. The Permanent Secretary responded by way of a letter dated June 14th, 2023, and received by the commission on June 16th, 2023, stating that she had informed the NPTAB of the complaint on June 2nd, 2023, and was awaiting a response. She further stated that the complainant was so informed. To the said letter was attached the letter of June 2nd, 2023, to NPTAB informing of the complaint which sought rectification. The Permanent Secretary in that letter to the NPTAB informed it that the Ministry was in the process of preparing contracts which were scheduled to be signed on June 5th, 2023, and was in the circumstances requesting the advice of the Board on the way forward.
In accordance with S. 39(3) of the Procurement Act, Cap. 73:05 and having regard to NPTAB’s statement that it was complied with, the procuring entity ought to have had within its possession the Report of the Evaluation Committee. However, the PPC said that despite the request as aforementioned, the Ministry of Home Affairs, failed to submit same to the commission or respond directly to the itemized requests.
On review of the Report of the Evaluation Committee, it was determined by the PPC that the contract documents were required to determine what cost per item was in fact contracted. These were requested from the procuring entity in November 2023 and submitted to the commission in December 2023.
On examination of the bids, the PPC found that the complainant, M S Invest-ments, was the lowest priced proposal for item #2 in Lot 3A of the subject tender, ‘fresh beef’, but was not awarded this item. It was erroneously awarded to Star Imports & Trading.
Both M S Investments and Star Imports & Trading bid the same price for item #4 in Lot 3A of the subject tender, ‘salt beef’, however, the Evaluation Committee recommended the award for the supply of this item to P. Ramroop & Sons, who according to the record before the commission did not bid for this item.
The complainant was not the lowest bid proposal for items # 6 and #33 in the said Lot, ‘mince beef’ and ‘yam’, as alleged. Star Imports & Trading was the lowest bid proposal for those items and was rightfully so awarded.
The PPC also said that the copy of the Evaluation Report submitted reflects that it was signed by only one of the three evaluators.
Recommendations
In its recommendations, the PPC said that the Ministry of Home Affairs erred in not awarding the contract for item #2 (‘fresh beef’) in Lot 3 of the subject tender to the complainant, MS Investments since, on the record, he was the lowest priced proposal for that item in accordance with the Evaluation and Qualification Criteria. The award of item #2 in Lot 3A of Tender Reference No. 07/2023/51 to Star Imports & Trading was therefore in breach of S. 39(2) of the Procurement Act, Cap. 73:05.
In the circumstances, the PPC said that the contract entered into therefor should be rescinded and a contract entered into with the complainant together with compensation to the complainant for lost revenue for the lapsed period of the contract.
“However, the entry into a contract and part performance since June 2023 could give rise to privity of contract issues and practical considerations. It is therefore recommended that in the alternative, the complainant be compensated by the procuring entity for his loss as a result of wrongly not being awarded the contract. The compensation should reflect the profit he would have earned during the contract period of twelve … months”, the PPC said.
It is noteworthy that the PPC recommended the rescinding of the contract though it made no such proposal in its subsequent consideration of the $865m contract for the Belle Vue Pump Station which was awarded to Tepui Inc even though there were major violations by the evaluation committee.
As it relates to the M S Investments complaint, the PPC said that the procuring entity also fell into error in the contract award for item #3 (‘salt beef’). Both the complainant and Star Imports & Trading bid the same price for this item and therefore, the award ought to have been split equally between the suppliers.
The Report of the Evaluation Committee, having only been signed by one of the three evaluators, is not valid, the PPC asserted. This the commission viewed as an irregularity which can be remedied on the signing by the other two evaluators or a majority thereof. “It is recommended that the other Evaluators, if agreeable with the Report dated January 2023 sign the Report so validating. If not, the entire award is vitiated”, the PPC said.
It also hammered the NPTAB and the NDIA over the requests for information.
“The commission once again expresses grave disappointment and concern at the sloth and non-response by the procuring entity and NPTAB. The commission did not have a complete set of documents for an investigation until December 2023. That is, six (6) months after the request therefor was made.
“Such inaction adversely affects and undermines transparency, confidence in the system and leads to embarrassment. The complainant by way of email to the commission dated January 31st, 2024, understandably expressed utter frustration at the length of time the matter was taking”, it said.
The commission further recommended that Parliament enact legislation to give effect to Article 212DD(2) of the constitution to provide for offences and penalties on the failure to comply with a request or decision of the commission.
