By Donald Rodney
Part 3B – language and discretion (Contd)
This Part 3B and the two Parts following, will deal with discretion authorized by the Act for NPTAB to carry out its work.
Transparency blackout
It was stated on the GDF wharf project (at Appendix B of the Findings) that any bidder whose bid is less than 80% of the government’s estimate will be considered non-responsive. It is doubtful that this ‘criteria’ – for such it appears to be – would pass a test of objectivity, if only because the 80% threshold is verifiable only by government. However the successful bidder being one of two bidders below the threshold by the classification of NPTAB itself, in a series of stunning moves, was mutated from being non-responsive to responsive, offered an increased “corrected” tender amount, and deemed to be successful under the subjective and muddled evaluation by NPTAB already narrated, and awarded a contract; all under a tactical move whereby up to the time of PPC first enquiring, the award was not publicized as it should have been (see Findings, paragraphs 72 to 83) so plunging other bidders, PPC and the public, into transparency ‘blackout’. Also according to the Findings, NPTAB articulated that for tenders found non-responsive generally, discretion may be “shown in extreme circumstances” (paragraphs 26 and 41). No statement was offered as to how such an authority arises or how it promotes fairness and transparency.
No unlimited discretion
The following two issues must be noted. (1) Mutating a non-responsive tender in this way is unprecedented. It is expressly banned by the Act [at s. 39(4)(a)] which prohibits changes aimed at making a non-responsive tender responsive. There is no unlimited discretion, and this prohibition is a safeguard. PPC itself stated that NPTAB was bound by the criteria (i.e. state of non-responsiveness) which NPTAB declared and which cannot be arbitrarily disregarded, nor could NPTAB purport to exercise a discretion of which bidders would not be aware (paragraphs 43 to 45). Hence immediately upon review, the award should have been nullified. Instead astonishingly PPC seem to hinge its inaction on which bidder complained and whether another bidder should have complained, when the Act has been patently violated.
No prices changes
(2) The free pass given to the deemed successful bidder on the test for responsiveness is fortuitous as this allows a gripping insight into another modality of NPTAB by its next move – this time on the important issue of how changeable is a tender price. The offer of an increased “corrected” tender amount is also unprecedented. That a bidder is bound by mistakes in the Final draft tender price, and no change in price is allowed, is a principle that is an unbroken thread from 100 years ago and the first bookmark in this narrative, through the voluntary code under E.C. Browne at the now Ministry of Public Works. It survives the dissolution of the Department (see Part 1: SN 2/10/2024) and indeed continues as legislation against changes in tender price whether sought, offered or permitted (at same s. 39(4)(a) of the Act). Even if it is presumed that NPTAB has authority to offer at its discretion, a price increase to the deemed successful bidder, then such an offer has to be made, not only to the other bidder below the 80% threshold, but to all other bidders. This follows from the (fourth) Objective in PPA2003 to provide fair and equitable treatment to all bidders. There is no unlimited discretion; any discretion in regard to one bidder is circumscribed by the rights of the other bidders. The presumption cannot stand since offering price changes to any bidder would make an irretrievable sham of the procurement process.
NPTAB has openly violated the Act twice, and then a third time by staging a tactical information blackout which is in breach of s.43 of the Act – all favouring the deemed successful bidder. This under the watch of PPC, which has failed to offer a remedy for an ineffective contract and to date has failed to offer a remedy or compensation to the unsuccessful bidders, including the dogged complainant, whose rights under the conformity contract have been breached.
Narrow versus extreme circumstances
The discretion which NPTAB refers to is authorized in s. 39(4)(c) of the Act, namely, that NPTAB may regard a tender as responsive even if it contains minor deviations from requirements in the tender documents. The discretion is to allow NPTAB to apply due diligence checks to evidence on submitted prescribed forms (like the tender form) specified documents (like GRA certification) or voluntary substantiation (like financial statements or spreadsheets). Rather than a judicial discretion as implied by PPC in the Findings (paragraphs 43 to 45) the process is one of exercising due diligence as NPTAB may decide, at the examination phase before taking only validated documents to the second, evaluation phase. Hence this discretion cannot be used to make price changes to tenders.
An illustration is where a bidder inserts a tender price on the tender form in figures but omits to insert the price in words. This omission is a non-conformity with tender requirements, and it must be decided if this is non-material or material; if the latter the tender is rejected at the examination phase.
Such is the narrow margin to the when and how of the discretion on responsiveness. NPTAB should be invited by stakeholders to elaborate on the alternative discretion it describes as applicable “in extreme circumstances”.
To end: Readers are invited to put on an evaluator’s hat and apply their own discretion to the non-conformity state of the tender form in the illustration above (that is: non-material or material?).
Next Part 3C will continue on discretion.
