– as Appeal Court overturns 2014 ruling

THE Bid Protest Committee was criticised as the Court of Appeal overturned a 2014 High Court decision in a case brought against the state by security firm, Strategic Action Security Limited.

The decision was handed down on Tuesday by Justices Dawn Gregory, Rishi Persaud and Rafiq Khan.

On October 30, 2013, ‘Strategic Action’, by way of a motion,had sought an order or Rule Nisi of Certiorari to quash the decision of the Ministry of Local Government and Regional Development to terminate its contract for the provision of security services for the coastland regional administrations of Regions Two (Pomeroon-Supenaam), Three (Essequibo Islands-West Demerara), Four (Demerara-Mahaica), Five (Mahaica-Berbice), Six (East Berbice-Corentyne) and 10 (Upper Demerara-Upper Berbice).

They did so on the basis that it was arbitrarily unreasonable, and unlawfully and unfairly in breach of the rules of natural justice.

The security firm had also sought an order to quash the National Procurement and Tender Administration Board’s decision to award the contract instead to Homesafe Security and Domestic Services Inc., on the grounds that the decision was in flagrant breach of the provisions of the Standard Bidding Document produced by the Ministry in August 2013.
The then Chief Justice (ag), Ian Chang had discharged the orders in May 2014.

In summarising the chief justice’s decision, Justice Persaud said:
“In essence, His Honour found that the non-disclosure of pending criminal charges and the exclusion of VAT from the Tendered Bid sum were material breaches of the Procurement Act, 2003 and the requirements of the standard bidding documents thus disentitling the appellant/applicant to a favourable consideration of its bid to provide security services to several regions.”

It was pointed out that during the hearing before Justice Chang, there was much contention in relation to the interpretation of the term “Any litigation” in Section 5.3 of the bidding document.
Questions reportedly arose as to whether the term meant that criminal proceedings were being contemplated.

“His Honour concluded that the term ‘Any litigation’ attracted the disclosure of pending criminal proceedings, and the appellants’ failure to disclose this amounted to a material breach,” Justice Persaud noted.

MATTER OF INTERPRETATION
But the judges at the Appellate Court on Tuesday said that Justice Chang’s interpretation of the term ‘Any litigation’ was skewed, stressing that there was no requirement for disclosure of ongoing criminal proceedings.

“The record also reveals that some 21 charges were laid against the appellant for failing to pay the prescribed minimum wage to its workers,” Justice Persaud said.

“These charges preceded the submission of the appellants’ tender. Again, these charges could not form the basis for rejecting that bid; they do not fall within the scope and ambit of ‘Any litigation’, thus requiring disclosure,” he added in delivering the decision.
On the issue of the exclusion of VAT, it was noted that the contention that a VAT figure was provided did not accord with the requirement of VAT inclusivity, and as such a single figure was clearly intended.

“To our mind,” Justice Persaid said, “this non-inclusion of VAT in the bid figure amounts to a mere technical breach.

“This court is not in agreement with His Honour’s finding of a material breach in this regard, notwithstanding the inconvenience of performing a simple mathematical calculation.”

On rejection of its bid, the security firm, in keeping with Section 37 of the Standard Bidding Document, invoked the internal complaint procedure and lodged, as required, the $2M registration fee to facilitate the hearing of that complaint.

However, at the time of the filing of the appeal, the Bid Protest Committee was yet to respond, which, according to Justice Persaud, leaves much to be desired.

“Such unsavoury conduct, to my mind, amounts to a gross dereliction of duty of those tasked with the responsibility of hearing complaints duly lodged,” he said, adding:
“This does little to instill confidence and transparency in the procurement process, which has long been the subject of controversy and stinging criticism in this jurisdiction.
“Such inaction does not bode well for this process, and has the potential of impacting negatively on the perception of our country as a whole.”

The Appeal Court made the Order Nisi, which was made by the security firm on October 30, 2013 with respect to the decision of the ministry, absolute.
Cost in the sum of $150,000, was set to the applicant.