Part 3A – language and discretion
Part 2 dealt with the second phase evaluation of tenders; Part 3A deals with the first phase, the examination for responsiveness phase. Having read Part 2 as the ‘heart of the matter’, readers may consider that prior examination would be straightforward; not so. The examination phase is infused by two deep issues: government, and to an extent PPC, muddling of terms and concepts of PPA 2003; and NPTAB’s perception of its own unlimited discretion – both have far-reaching consequences for fairness and transparency, and Part 3 has been sub-divided into four parts to help a clearer narrative. Here demanding readers should keep to hand copies of PPA 2003, the Findings (for GDF wharf) and findings dated December 29, 2023 for a tender to the Hinterland Electrification Company Inc. This Part 3A will deal with muddling of terms.
Examination versus evaluation
The intent of Section 39 in the award process is shown by the side-heading “Examination and evaluation of tenders”. First phase “examination” begins with a list of all bidders submitting tenders; proceeds by an examination or screening process to individual tenders for responsiveness to stated tender requirements; and concludes with a list of bidders who have responded successfully and who will therefore be recommended to the procurement entity as conforming bidders. The procurement entity must be informed of bidders to whom it is bound by conformity contracts: see Part 1, third bookmark (New conformity contracts) SN 2/10/2024.
The second phase “evaluation” on the other hand begins with only conforming bidders (in any order) proceeds with the appraisal and scoring of tenders and concludes with bidders ranked to identify the “lowest evaluated tenderer”, as outlined in Part 2 of this narrative.
To return to the first phase, selection or removal in examination will be done on a pass/fail basis. The criteria are therefore important since failure at any criterion will mean that the tender will not be responsive, will be set aside and have absolutely no further part in the procurement process. The onus is on the procurement entity and NPTAB to accompany criteria listed in advance with requests which invites bidders to submit documentary information which is verifiable, since examination of any tender cannot be objective if it is based on unverifiable information. Also criteria for examination must be listed separately in the tender requirements, and not confused with “evaluation criteria” as the latter must be quantified and eventually scored at the second phase – but we know from Part 2 this is not done.
Entities/NPTAB must mind their language
In view of the above and from a reading of the Findings, the GDF and/or NPTAB merge the examination phase “criteria”, very incorrectly, with the significantly different evaluation phase “evaluation criteria”. This merging causes a muddle of the language, and of the concept of separation of phases. This is best shown at Appendix B of the Findings where purported “Evaluation Criteria” (which is part of second phase ‘evaluation’) heads a listing of the 19 items alongside columns headed “yes” and “no” (which is part of first phase ‘examination’). This is a complete muddle. GDF/NPTAB must mind that its language aligns with the language and phases of PPA2003. Another equally disturbing example is that GDF and/or NPTAB introduces “non-financial assessment” and “financial assessment” into their modality without definition or description, and it is obscure if this new language falls within first phase examination or second phase evaluation of tenders. For example, (at paragraphs 23 to 26 of Findings) NPTAB is reported as finding that all bidders had fulfilled all requirements of non-financial assessment, though there is no attempt to show if this is on a yes/no basis, or a quantified basis. Separately, an issue arose, raised by PPC itself, (at 31 to 34) as to if ‘financial assessment’ forms part of the evaluation – an important question. After receiving a written explanation PPC concluded that the explanation from NPTAB appeared to be inherently contradictory. Hence the muddle seems unsalvageable Commented [DR1]: even in the eyes of PPC. Despite this obscurity the NPTAB award to the ‘successful bidder’ was allowed to stand by PPC.
Misleading the media?
There is another way in which NPTAB must mind its use of PPA 2003 language. In a press release on or about September 30, 2024 NPTAB stated that 32 bidders were “evaluated strictly in accordance with the Evaluation Criteria”. This too is a hollow statement since the modality of NPTAB, and apparently of PPC also, excludes the use of evaluation criteria as described in the Act – at s.39(6)(a). However the release was not challenged as misleading.
To sum up to this point: the missing objective evaluation narrated in Part 2, is not the whole problematic; there is a muddling of the separate examination and evaluation phases by government and PPC, and this mindset could be even more difficult to adjust for everyone, going forward.
Editor’s note: Part 3B was inadvertently published ahead of this week’s 3A. Please see https://www. stabroeknews.com/2024/10/24/features/modalities-of-tender-evaluation-under-ppa-2003/
