Part 3C – language and discretion (Cont’d)
This Part deals with the discretion needed by NPTAB to carry out its work of setting (non-price) criteria for bidders. It arises under s. 5(1) of the Act, which allows NPTAB to select and impose quality criteria from a list of six categories. This discretion is far-reaching, is applied before the first public notice appears and effects even potential bidders. (The discretion in Part 3B was in regard to due diligence on document submitted by bidders.) But this heavier discretion is also limited by the Act and must not violate the Objectives. The PPC findings on the Hinterland Electrification Co Inc (HECI) tender is used as the material here.
Backdrop
In the HECI case an unsuccessful bidder complained that it had a better price than the bidder awarded the contract and a technical specification above that required by the tender. The complainant, Akamai Inc, received no answer to these complaints. The complainant also claimed that there was a breach of the Act regarding disclosure. The PPC responded through its findings that PPA 2023 prohibited disclosure of information relating to examination and evaluation of tender proposals except by Order of the Court: paragraph 29 and Recommendations. This seems to be the opposite of transparency and needs re-visiting later.
Unsurprisingly PPC findings on the HECI tender manifested the muddling of language and concept of separation of phases described in Part 3A of this narrative. For example, in the Findings and Recommendations (page 5 of 6) it is stated that the complainant did not satisfy all of the “evaluation criteria” and was thus “deemed non-responsive” – thereby muddling language and elusive evaluation criteria. For now, attention is turned to government’s (that is, the various procurement entities’ and/or NPTAB’s) discretion to set non-price criteria, and how this is deployed.
Rogue-criteria
The complainant’s tender was examined as reported in the HECI finding, at paragraph 21:
Criteria # 10 – Demonstrate experience by providing documentary evidence that shows similar goods was provided in at least one contract in the last two years to a minimum value of (GYD$5,000,000)
The complainant submitted a spreadsheet of certain projects and was failed on Criteria # 10 by NPTAB, which found that copies of contracts should have been provided instead. Nothing was stated about the evidential content in the spreadsheet. However under PPA 2003 experience and past performance are qualities to be appraised and scored at the evaluation phase, rather than dealt with finality at the examination phase; practically the said qualities are a matters of degree to be compared between bidders based on ‘documentary evidence’ provided, rather than be dealt with by a fail/pass finality. This can be seen in the Act [at s. 5(1) and 5(2)] which authorizes NPTAB to select (non-price) criteria from the list of six categories, which include experience and past performance. Substantiation is required if the bidder wants “to participate in procurement proceedings” in the case of experience; and if the bidder wishes to be commended “for serious consideration for the award of the contract” in the case of past performance. The requirements must be applied equally of all bidders [at s. 5(3)]. This infers that in both instances documents must be submitted for first phase examination, subjected to any due diligence check; and at the second phase evaluation the evidential contents will be appraised and scored. (For due diligence check, see Part 3B; for evaluation, see Part 2).
As readers now know – based on the PPC findings on the GDF wharf tender and now the HECI tender – scoring and ranking of tenders is outside the modalities of government and, to an extent, PPC. Hence scoring and ranking is not an available mechanism. In these circumstances what happens when a quality that should be appraised and scored based on evidence, is instead examined for fail-pass based on document format?
It means that NPTAB exercised its discretion correctly in selecting from the ‘list of six’ in the Act, but this discretion is exceeded when it tries to assess both format and evidential content in one go – as fail/pass – as it violates the (fourth) Objective for fair and equitable treatment of bidders. Bidders are still entitled to be evaluated based on the evidential content submitted. Criteria # 10 can rightly be called a rogue-criterion and should be restructured to show its criteria and evaluation criteria, duality.
Reviewing bidder rejection
What if this view is wrong? The alternative is to fall back on PPC reviewing the rejection, as if the criterion were genuine, and this must be objective. First NPTAB must discharge the onus to show that the criterion is selected from the ‘list of six’. Then, show that requirements which caused rejection have been applied equally to all bidders. Finally PPC must inspect the NPTAB record and apply a reasonable person test: does the reason for failure stated – namely, that the complainant has provided a (format of) spreadsheet, rather than contracts – lead a reasonable person to believe that the bidder’s experience and/or past performance (experience and past performance were compressed in Criteria # 10) is such that the bidder must not participate in the procurement? PPC has done none of these, so failing to treat the complainant in a fair and equitable manner. This is a first consequence of the missing ‘heart’ of the evaluation, that is, the missing evaluation and scoring mechanism. Readers being reasonable Guyanese, are invited to answer the test question above.
The ‘heart’ cut out!
The second consequence is not just figurative. When answering the complainant that PPA 2023 prohibited disclosure except by Order of Court, PPC suppressed the fact that non-disclosure is itself limited by the same s.10(3) of the Act that PPC quoted in support of its response, namely: that “…this non-disclosure must not be construed as preventing the disclosure of scoring sheets or rankings or any other documents…” that provide comparison of the tender proposals. The evidence of this suppression is seen in the quoted wording, at page 5, paragraph 29 of the findings, deliberately cut in mid-sentence to omit the stifled words. Government nor PPC do not need a Court Order to disclose scoring sheets, rankings, or schedules showing that requirements have been applied equally. It would be the opposite to transparency if that were otherwise. This suppression is likely the most disturbing piece of information arising from the published findings of PPC itself: it implicates the trusted constitutional guard in a cover-up. PPC has answered the complainant incorrectly on a direct question, and misled the company and indeed the nation.
The final consequence of the cut-out ‘heart’ follows closely on the conduct of PPC, which generally has taken a non-interventionist position. It has not tried to verify any result from NPTAB, for example, or offered any remedy to valid complainants. On the other hand PPC intervened adversely to bidders in suppressing information. It also by-passed an opportunity to raise with government, the issue of the extracted scoring sheets and associated evaluation criteria “quantified in monetary terms”, and to seek an explanation. Silence on these points by both government and PPC would not promote transparency.
The next Part will conclude the discretion aspects.
