Nisi order, over Aremu Road bidding Contract, absolute

ACTING Chief Justice Ian Chang has made absolute a BK International nisi order surrounding the bidding for a contract to rehabilitate Phase One of the Aremu Road in Region 7 (Cuyuni/Mazarui). 

Relative to the bid opening process in the Procurement Act 2003, only three bidders, C B and R Mining Enterprise, M.M.C. Inc. and BK responded to the advertisement by Guyana Geology and Mines Commission (GGMC).
Consequently, BK International had moved to the Court for the following reliefs, as recorded in the decision of the Chief Justice, last December 5.
(a) an order or rule nisi of certiorari, directed to the respondent GGMC, to show cause why a writ of certiorari should not issue for the purpose of bringing up to the High Court of the Supreme Court of Judicature to quash the decision to award the contract for which the sealed bids were invited for rehabilitation of the Aremu Road, Phase One, in Region 7, to CB and R Mining, on the ground that the said award, made in violation of the provisions of the Procurement Act 2003, was unlawful, unreasonable, arbitrary, capricious, irrational, procedurally improper, ultra vires, null and void and of no legal effect and
(b) an order or rule of mandamus, directed to the respondent GGMC to show cause why a writ of mandamus should not issue for the purpose of commanding the GGMC to award to the applicant, the contract for which sealed bids were invited for the rehabilitation of the Aremu Road, Phase One, Region 7, on the ground that the said award to CB and R Mining Enterprise was made in violation of the provisions of the Procurement Act 2003, was unlawful, unreasonable, arbitrary, capricious, irrational, procedurally improper, ultra vires, null and void and of no legal effect.
The Chief Justice, in his decision, noted that, in the affidavit supporting the motion, Brian Tiwarie, the Managing Director of BK International, on behalf of his company, deposed that it was registered in Guyana, with its registered office at 4055 Mandela Avenue, Industrial site.

CONSTRAINED
The judge said the Court is constrained to conclude that either no prequalification proceedings were conducted or if such were done, the process was ultra vires the provisions of the Procurement Act 2003 which applied to GGMC as a procuring entity under and for the purposes of that Act.
He said it follows that it is open to the Court to order that the order or rule nisi of certiorari made on the September 12, 2013 be made absolute in the exercise of its discretion.
But, in a supplementary affidavit in answer, dated October 30, before the reply was filed, Newell Dennison, Deputy Commissioner of GGMC informed the Court that CB and R has part performed the contract for the rehabilitation of the Aremu Road to the value of $37,560,000 and that was not denied.
In light of this fact, the Court has given consideration to the question whether it should refrain from ordering that a writ of certiorari be issued despite its finding that GGMC acted ultra vires the provisions of the Procurement Act 2003.
While the Court is of the view that CB and R Mining should be paid for the rehabilitative work done, on a quantum merit basis, it is of the view that it should, nevertheless, annul GGMC’s decision to award the contract to CB and R Mining.
It would still be open to GGMC to award a contract for the balance of the rehabilitation to a responsive bidder on the basis of a revised estimate which takes into consideration the amount of work already done by C B and R Mining, applying, of course, the provisions of the Procurement Act in the procurement process.
The judge held that, after all, the sum of $37,570,000 is less than one-tenth of the estimated costs of rehabilitating the entire road.
The Court, therefore, ordered that the order or rule nisi of certiorari granted on September 12 be made absolute, BK also secured $100,000 costs.