By Donald Rodney
Part 4 – embracing disclosure
This penultimate Part 4 and the final Part 5, will deal with the potential for overcoming any obvious malpractice in the procurement process arising from the unpacking of information from the two published findings of PPC, described in Part 1.
Promoting transparency vs. Promoting discretion
From the material there is non-transparency in the evaluation of tenders by NPTAB. The Procurement Act has a requirement for non-price evaluation criteria to be quantified in monetary terms, and a clear inference to continue along a pathway to arrive at an indispensable scoring and ranking of bidders as an integral part of identifying the “lowest evaluated tenderer”. The exact pathway is not stipulated but NPTAB is free to institute an appropriate modality or a formula to bring together the price and non-price criteria, providing the formula is fully disclosed beforehand and promotes “fairness and transparency”. The latter is a fundamental requirement of the Act.
NPTAB has done none of the above. Scoring, ranking and comparison of bidders – which should be freely available to bidders, the PPC and the public – is not available. So far PPC has turned a blind eye to this. These have been termed the ‘heart’ of the evaluation in Part 2 and hopefully is clear to the average reader.
On the other hand, the perceived unlimited discretion of NPTAB has been the foundation of its decision-making on recommendation for award, with the exact modality being obscure. In one example published, discretion “shown in extreme circumstances” is deployed to first make a non-responsive tender responsive, and second to offer an increase in tender price to the bidder concerned, prior to recommending the said bidder for award: both actions are prohibited under the Act; see Part 3B. In the other example, NPTAB carried out two phases of evaluation in one operation, and rejected a complainant supplier on format of supporting documentation, whilst ignoring evidential content on the criteria (in this instance – on experience and track-record) which must be taken into account in scoring: Part 3C ; in the second example also, there is an unapologetic extension to the list of criteria authorized by the Act to create a ‘pseudo-criterion’, which is deployed to reject the supplier: Part 3D. (For the two phases see Part 3A – ‘Examination vs. evaluation’).
This unrestrained ‘discretion’ seems to be common place, and raised no eyebrows at PPC – except for the non-responsiveness issue. However, such undisclosed subjective decision-making is obviously not in keeping with the fundamental requirement of the Act, can provide a cover for malpractice, and understandably creates a barrier to public trust. (See in particular the fifth Objective of the Act, namely – to promote public confidence in the integrity and fairness of the procurement process).
One of the published examples – the GDF wharf – seeks to disclose 19 to 20 listed ‘evaluation criteria’ in the tender document. There is no list on the other example, but it could be safely assumed to be at least 17. For the award of contract to promote “fairness and transparency” in the procurement process all criteria must be selected from the list of six categories in the Act – and only those – and disclosed to bidders. Criteria which are to be assessed on a yes/no basis must be listed as such. However non-price evaluation criteria which are to be used for evaluation, scoring and ranking should be listed separately, and each quantified in monetary terms, as may be instituted by NPTAB and/or the procurement entity. Generally, these are criteria which are to be supported by bidders by documents at their own option, rather than criteria required to be satisfied via specified information on forms issued by NIS or GRA, etc.
It is best practice to disclose the evaluation methodology also, and this would include weightings of respective evaluation criteria relative to price, scoring scale (1 to 5; 1 to 10, etc.) to be applied by evaluators and significantly, the formula or tabulation for calculation of score for each bidder. This aspect is most transparent if the formula or tabulation is replicated in the tender documents, complete with algebraic symbols for the yet-unknown tender price and scores for criteria. Why to this extent? Because this would facilitate bidders to carry out shadow calculation of their own score, to be later reconciled with the NPTAB score. Very important, it would facilitate the procurement entity to do early ‘shadow’ calculations based on their own knowledge of bidders, to be later reconciled with scores and rankings determined by NPTAB. (The Act permits the procurement entity to issue an advisory recommendation to NPTAB if it does not agree with the determination of NPTAB but is silent on a mechanism for achieving this). If disclosure is embraced in this manner all stakeholders at this stage would be applying the same formula, so helping to mitigate the trust barrier.
Where any tenders have been rejected during the examination stage, this must be done objectively and NPTAB must disclose a schedule showing that questions causing rejection have been applied equally to all bidders: see Part 3C – ‘Reviewing bidder rejection’.
Three red flags
In the meantime, it would benefit the integrity of modalities deployed by NPTAB, if the PPC formally investigates the following red flags with a view to eliminating the systemic or personnel failings:
● Change from non-responsiveness
to responsiveness for one bidder,
which is prohibited.
● Offer of an increase in tender
price to one bidder – this is
extremely important; it violates
the Act as well a long-established
rule: see Part 1 – ‘100 years ago’.
● Inclusion of pseudo-criteria in the
evaluation process.
The final Part will deal with stakeholders.
