The Guyana Geology and Mines Commission (GGMC) acted unlawfully when it awarded a contract for the rehabilitation of the Aremu Road in Region Seven (Cuyuni-Mazaruni) to Chunilall Baboolall of CB&R Mining, the Caribbean Court of Justice (CCJ) has held in a written decision rendered on Wednesday.
Businessman Chunilall Baboolall
On June 4, 2021, the CCJ dismissed an appeal against a decision of the Court of Appeal of Guyana in the consolidated matter of GGMC vs BK International and Chunilall Baboolall; and Chunilall Baboolall v BK International and GGMC. On that date, the apex court indicated that it would give the reasons for the dismissal at a later date. The CCJ issued those reasons on Wednesday.
Summarising the judgement in a statement, the regional court said that around June 2013, GGMC invited bids through a public advertisement for the rehabilitation of the Aremu Road in Region Seven. The advertisement stated that bidding would be conducted according to the Procurement Act.
Following this, the GGMC shortlisted four “prequalified” entities to submit bids, but only three responded to the invitation: CB&R Mining; MMC Inc; and BK International Inc. While BK submitted the lowest bid, CB&R’s bid lacked certain important documentation. Nevertheless, GGMC contracted with Baboolall on behalf of CB&R to execute the road rehabilitation works.
Dissatisfied with GGMC’s decision, BK filed an action in the High Court to invalidate the said decision. At the High Court, GGMC argued that it was not a “procuring entity”, as defined in the Procurement Act, and was therefore not required to follow the procurement procedures set out in the Act.
The statutory definition of a procuring entity included Government agencies, but GGMC argued that it was a private body in law. The High Court, however, rejected that argument, holding that GGMC was a public agency under the Ministry of Natural Resources and the Environment.
GGMC and Baboolall appealed this decision to the Court of Appeal, but that Court agreed with the High Court and dismissed the appeal. As such, GGMC and Baboolall subsequently appealed to the CCJ.
The CCJ identified three issues for determination in the case: (1) was the GGMC a “procuring entity” under the Procurement Act? (2) was judicial review available to challenge GGMC’s decision to award the contract to Baboolall? and (3) did GGMC comply with the Procurement Act?
CCJ President, Justice Adrian Saunders, held that the GGMC was a Government agency because of three main factors: (1) the public nature of its functions; (2) the extensive ministerial control exercisable over it; and (3) the sources of its funding included inflows from the Government.
As an agency of the Government, he said, the GGMC fell under the definition of a procuring entity in the Procurement Act, and therefore had an obligation to conduct bidding according to that Act. He found that judicial review was available to BK because GGMC was conducting a public function, that is, a road rehabilitation project, where the funding came from the Government.
After considering that BK had a legitimate expectation that GGMC would comply with the Procurement Act, Justice Anderson determined that there were several instances where the GGMC had not adhered to the Procurement Act.
For example, he said, the rejection of BK’s bid was not done in accordance with the Procurement Act. Additionally, he found that there was no proof of how CB&R, or any of the bidders for that matter, were “pre-qualified”.
CCJ Judge Jacob Wit, in a concurring judgement, added that judicial review in a constitutional democracy like Guyana must be brought under the umbrella of constitutional values and principles. Doing this, he pointed out, broadens the scope of judicial review.
Meanwhile, CCJ Judge Peter Jamadar, in a similar opinion, underscored that in countries with written constitutions, courts must ensure that administrative decisions accord with fundamental constitutional and human rights’ values and principles.
Apart from Justices Saunders, Wit, and Jamadar, Justices Winston Anderson and Denys Barrow comprised the bench of the CCJ. Attorneys-at-Law Nikhil Ramkarran and Rebecca Khan appeared for GGMC; Edward Luckhoo, SC, and Robin Stoby, SC appeared for BK, and Attorneys-at-Law Chandrapratesh Satram, Roopnarine Satram, and Ron Motilall appeared for Baboolall.
