By Donald Rodney
Part 2 – heart of the evaluation
The evaluation of tenders is a crucial stage of the procurement process, where conforming tenders will be compared against each other to identify one for award of contract. Evaluation is the second phase of a three-phase process introduced in Part One, but will be dealt with here first because this phase is where readers may identify the heart of the transparency debate. One caution is that PPA 2003 leaves much unstated. However like Mr Edmund Browne at the Ministry in Guyana, this author later headed a quantity surveying section, but in another Commonwealth jurisdiction. Hopefully I can effectively take readers around the relevant parts of PPA 2003.
Section 39 of the Act is side-headed “Examination and evaluation of tenders’ and s.39(6)(a) states:
“All evaluation criteria for the procurement of goods, works and services in addition to price, will be quantified in monetary terms and the tender will be awarded to the lowest evaluated tenderer.”
The plain meaning of the quoted words is that all evaluation criteria must be quantified in monetary terms. That is non-price, ordinarily qualitative criteria like a bidder’s past performance or relevant experience, must be merited and converted to prices. The pricing of normally non-price criteria in this way is solely for the purpose of the modality of evaluation set out in the Act. Also, the award is to be made to the lowest tender after, and not before, the evaluation of all tenders. It is important to note that the lowest-priced tender before evaluation may, or may not, be the lowest ranked after evaluation.
The express words of s.39(6)(a) of the Act leave a great deal unstated; but what is the purpose of what is actually expressed? Answers must be entirely consistent with the intention of the Act “to promote fairness and transparency”.
Promoting transparency
Assessment of non-price, qualitative criteria is inherently subjective. A common practice is to counter this and allow each tender evaluation team to assess qualitative criteria as a number, which makes the assessment readily recordable, and so transparent. For example, in Trinidad and Tobago, the Evaluation Regulations of 2021 require that non-price factors be given “merit points”; in Barbados legislation of the same year, all “non-price evaluation criteria shall, to the extent practicable, be objective and quantifiable.”; at the European Commission tender management level, (around 2012) there is direction simply to utilize “marks”. The point here is that there is existing practice arising from a shared intention to infuse objectivity, and hence transparency, into an otherwise subjective evaluation and we must be mindful of this in Guyana.
In PPC 2003, non-price, qualitative criteria are required to be appraised by the NPTAB evaluation team in monetary terms, (“appraised” is used here because of PPA 2003 distinctive requirement for “quantified in monetary terms”) which can form part of a record and be verifiable. The maximum appraisal amount and scale of evaluation (i.e. 1 to 10, or 1 to 20, etc.) must be disclosed to bidders in advance. Hence the purpose of s.39(6)(a) of the Act quoted above is to mitigate subjective, and promote objective assessment by evaluators, and hence promote transparency.
NPTAB modalities
The Findings of the PPC for the GDF wharf project, for all its 27 pages, makes no reference to the provision of the Act requiring NPTAB to quantify non-price evaluation criteria. The Findings quotes from a report of NPTAB Evaluation Committee, at page 7 of the Findings:
“The bids were assessed in accordance with the Evaluation Criteria outlined in the tender documents.”
Said evaluation criteria are attached in Appendix B of the Findings, which outlines 19 “evaluation criteria” (excluding price) none of which is quantified in monetary terms; note none. There is no comment from PPC on this glaring omission. The result is that the evaluation of non-price criteria is made on a purely subjective manner. On this basis alone the entire evaluation utterly fails to comply with the Act; and is non-transparent. Cover is provided for any malpractice, and the trained NPTAB evaluators can avoid accountability since there are no appraisal recordings, no paper trail. All before the watchful eyes of the PPC.
In an attempt to save the evaluation from being a nullity, one can observe an end-note to the outline of 19 “evaluation criteria” which states, and is also quoted by the Findings at page 5:
“The Contract would be awarded to the Bidder whose bid is determined to be substantially Responsive to the Bid Document and who has offered the lowest evaluated Bid Price within range.”
With the greatest respect this is a hollow statement. The attempted evaluation not being quantified in monetary terms the words “substantially responsive” and “within range” can add nothing. Through-out this purported evaluation there is no statement by NPTAB or PPC about how, when or where this adopted modality promotes transparency.
Lowest evaluated tenderer
What followed according to the Findings, (at page 6) was a list of bidders showing the successful bidder as offering the lowest-price tender which obscurely, may or may not be the lowest, had the evaluation accounted for the non-price criteria. It is clear that the intent of the Act – and particular s.39(6)(a) – is not to have an award based on a subjective and undisclosed evaluation of non-price criteria, together with a ranking on price, de-linked from non-price criteria. This raises the question, what is the final pathway to the decisive “lowest evaluated tenderer”? As with international modes of quantifying ‘subjective’ evaluations, there are modes of arriving at a fusion of price and non-price criteria evaluations. NPTAB can entirely at its own option adapt a mode for its own application, showing an integration of price and other criteria, weighted and resulting in a unified score; providing the mode adapted promotes fairness and transparency.
All conforming tenders must be evaluated, not just the lowest-priced, and listed ranked in order of the score for each. Where the ‘best’ bidder is identified by the highest score in the system selected, then the ranking order may be safely reversed to display the ‘best’ offer as the lowest on the list. This is confirmed at s.10(3)(b) which refers to scoring sheets or ranking; and inferred from “second lowest evaluated tenderer” at s.39(9) of the Act. This operation is the heart of the evaluation and the results must be available to all bidders, PPC and the public. Regrettably the would-be evaluation revealed in the Findings may have already become the norm, under various governments.
To summarise: there is non-transparency in evaluation of tenders as NPTAB, without comment from PPC, violates a key section of the Act for objective evaluations; rather subjective assessments are made and there is no verifiable scoring; this provides cover for malpractice. PPC should be reminded of best practice nearby, and to actively promote transparency, and not just endorse existing conditions.
The next Part will deal with examination and the language.
