Part 3D – language and discretion (Cont’d)
This Part 3D concludes on discretion to be exercised when government selects criteria from the ‘list of six’ categories, and with the final item as unpacked from the two published findings of the PPC. The findings on the Hinterland Electrification Co Inc (HEIC) tender is used as the material here. In this Part what is still described as the perceived unlimited discretion of HEIC /NPTAB takes a further, disturbing turn. The second of two ‘evaluation criteria’ on which the complainant Akamai Inc. was failed is, at page 4 of 6:
Criteria # 17 – Bidder must provide a letter stating any or no termination of projects. The letter must be dated within one month of the bid opening date. If there were no terminations a statement must also be given indicating such.
Pseudo-criteria
The record of proceedings did not reflect that the document referred to was submitted by the complainant and it was failed, as reported by NPTAB to PPC: paragraph 22. The following must be noted. (1) Termination is not included in the ‘list of six’ from which government can select criteria. The Act states, at s.5(3), that the procurement entity can impose no criteria other than those set forth in the ‘list of six’ or the regulations. A search of the latter reveals no inclusion of ‘termination of projects’. Criteria # 17 would fail at first hurdle of review (see Part 3C – ‘Reviewing bidder rejection’); it can safely be called a pseudo-criterion. On this basis the complainant was wrongly rejected.
(2) Termination is not a quality attributable to bidders or normally part of a track record; but rather it is an involved formal process whereby a contractor can lose its rights if it cannot afford to oppose the termination, for lack of funds or fear of victimization, amongst other reasons. (3) Government extends its perceived discretion to decide both if the complainant was factually involved in termination, as well as if in breach, even though there is no statement. Here the complainant submitted no letter on termination but is still rejected. This violates the established principle that she who claims must prove – not she who disclaims!
Show of authority
(4) The language used in Criteria # 17 demonstrates a ‘show of authority’ – which is a euphemism for enforcing submission by persons in authority, acting without permission – as in armed police searching your home without a warrant. The reading of the procurement debarment regulations (Regulations No 5 of 2019) shows that even if a supplier were terminated for breach, any debarment would have to be decided on by PPC itself under a separate procedure, subject to due process. Presentation for debarment would first have to be made by the procurement entity and the supplier would have normal rights to be heard. HEIC /NPTAB reference no such presentation here, yet the complainant was rejected and effectively barred from the current process for remaining silent on a question not permitted by the Act.
HEIC /NPTAB can succeed generally with their (non-permitted) authoritative action in Criteria # 17 (and other pseudo-criteria where this may occur) because the government they represent is the paymaster and sponsor of the overwhelming number of contracts in the construction and supply sub-sector for national businesses (though not ignoring that government is also a trustee of all funds under its control). A contractor or supplier will lose its rights if it cannot afford to challenge this show of authority.
The ‘show’ is ratcheted up further when one considers that in the standard procurement contract, being the contract as result of the tender award, between the public sector entity and the private contractor or supplier, the entity reserves to itself the discretion to terminate the contract “for convenience”. The latter means that the entity can terminate the contract without need for breach by the contractor. This discretion is different to the discretion examined throughout this narrative. Suffice it to say that when terminating for convenience the entity does not need to show factual breach or follow due process, before termination.
Beware of Oliver Twist
The willingness under Criteria #17 to summarily reject a bidder for what is at its highest an unproven allegation, should make bidders and all stakeholders beware of the spectra which can re-occur of what can be called the Oliver-Twist-Workhouse syndrome: a process whereby the fictional orphan Oliver Twist, challenges the Workhouse rule on silence against harsh treatment and inadequate food; Oliver asks for more food, is then ejected by an irate Workhouse manager into the streets as an example to other would-be challengers and, as per Dickens’ creation, joins a pickpocket gang.
This can be highlighted by an anecdote in Guyana, which like ‘Oliver Twist’ is clear victimisation, but unlike ‘Oliver’ is real. Prior to the advent of PPA 2003, that is before 2003, this writer was involved in a construction project in Bartica for a project implementation unit (PIU) under the Ministry of Education, where a contract for a supervising consultant was terminated for breach. The consultant decided to challenge the code of silence surrounding such matters and there was an arbitration before a mutually appointed person. The termination was found to be wrong by the arbitrator – who was a former High Court judge – and immediately upon the reading of the award in Georgetown, the PIU Director rose to his feet and broadcast to no one in particular, that the consultant would henceforth be blacklisted by the PIU. Hence the Director was prepared to ignore even a vindicating arbitration award, in order to victimise.
The next Part will deal with disclosure.
