The Public Procurement Commission (PPC) recently hired the law firm Cameron and Shepherd to write Stabroek News demanding retractions of statements contained within its editorials relating to the controversial award of the Belle Vue pump station to the unqualified company Tepui Inc.
One contention of the PPC was that its Summary of Findings on the Belle Vue pump station award was accepted by all of the PPC commissioners. Stabroek News in its editorial of 22 April 2024 headlined `The dereliction of the Public Procurement Commission’ had stated that the Summary of Findings, in which no serious recommendation was made against Tepui, was supported by a majority and not all the commissioners.
Said Cameron and Shepherd: “We are instructed that the aforesaid statement is without any basis or supported by any official record of the Commission which reflects that the contents of the said Summary of Findings was accepted by all commissioners. There was not (sic) vote taken and or called for thereon”.
The Cameron and Shepherd letter dated May 17th said: “We are instructed to demand, as we hereby do, that Stabroek News retracts and apologizes for its false, inaccurate and misleading statements as aforesaid and corrects those statements within 48 hours of the date of this letter”.
In a comment, Stabroek News Editor-in-Chief Anand Persaud said that the newspaper is satisfied that its reportage was accurate and that the Summary of Findings on the Belle Vue pump station was not supported by all the PPC commissioners. He said that there will be no retraction of the said statement in the editorial.
Via Cameron and Shepherd, the PPC also complained that in one of its news reports Stabroek News misreported on the Summary of Findings in another matter that related to procurement of prison food.
“We are also instructed that on 25 April 2024, the Stabroek News published an article under the headline. `Fresh and salt beef: Errors made by ministry in awards for prison food – PPC’, in which it stated that: `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”.
In its letter, Cameron and Shepherd said: “We are instructed that the Commis-sion never recommended the recission (sic) of the contract in the MS Investments matter as alleged in the aforesaid article published by Stabroek News.
“We are further instructed that in both matters referred to in the article, that is `MS Investments’ and `Belle Vue’, the Commission recognized the principle of privity of contract and therefore recommended compensation in the `MS Invest-ments’ matter as the complainant was a bidder who would have been aggrieved and suffered a loss as a result of the incorrect award of the contract. We are also instructed that no such consideration (was made in the Belle Vue Summary of Findings). We are instructed that the words `it is recommended preceded the statement for compensation as with all other recommendations following and the words `it is recommended’ never appeared with regard to recission (sic) of the contract”.
In relation to this complaint, Persaud said that the PPC was splitting hairs as it did raise rescission of the contract as an option, something that it did not do in the far more significant award of the Belle Vue Pump Station to Tepui Inc.
The PPC in its Summary of Findings on the complaint by MS Investments raised the prospect of contract rescission as follows:
“ [37] The commission having nothing before it to the contrary, the aforesaid findings stand. Recommendations I. The procuring entity was in error 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 premises, 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 (our emphasis). 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 (12) months”.
In other words, the PPC was of the mind that rescission should be the cure for the matter but settled for an alternative taking privity of contract into consideration.
Persaud said that the decision by the PPC to take no action to overturn the Tepui contract award was a dereliction of duty and does not bode well for probity in the vast public works sector.
Persaud added that it was bizarre that the PPC would waste public monies to hire a law firm to write Stabroek News when it could have written directly to the newspaper or issued a press release as it routinely does.
