The Government and the Guyana Power and Light (GPL) Incorporated will have to show why their decision to award a $4.6 billion contract to a Chinese group for the rehabilitation of the power company’s low and medium voltage distribution network should not be quashed when the matter is called up in Chambers at the High Court today.
This is following an application for an Order or Rule Nisi of Certiorari by rejected bidder Fix-it Depot, filed by owner Paul James, who is contending that the contract awarded to China National Machinery Import and Export/China Sinogy Electric Engineering Co Ltd Consortium is “in flagrant breach” of the Procurement Act and the bid invitation did not meet the tender evaluation criteria.
The court action was filed on January 31, 2017, and during a hearing on Monday, acting Chief Justice Yonnette Cummings-Edwards granted an order directing the respondents, namely: Guyana Power and Light Inc; Public Infrastructure Minister David Patterson; the Ministry and its Permanent Secretary, Balraj Balram, and the National Procurement and Tender Administration Board (NPTAB) and its representatives, to show cause why a writ of Certiorari should not be issued quashing: firstly, the rejection of the applicant’s (Fix-it Depot’s) tender for the rehabilitation works and secondly, the award of the contract to the Chinese group.
According to the court documents seen by this newspaper, the application is made on the grounds that the process of rejection of tender and award of the contract was in violation of the provisions of the Procurement Act 2003 and in violation of the terms of the Invitation for Bids.
The Main Street, Georgetown establishment is further contending that the decision was “made and issued arbitrarily, unreasonably, irrationally, unlawfully, illegally, erroneously, in bad faith and in breach of the rules of natural justice,” and were “procedurally improper, unfair, and unreasonable without the requisite transparency by failing sufficiently to disclose contract award criteria and weightings in advance and by failing to properly apply those criteria which were disclosed; and (iv) are null and void and of no legal effect” .
The court noted that the application would not be granted “unless cause can be shown why the said Order or Rule Nisi of Certiorari should not be made absolute”.
According to James in his Affidavit in Support, the essence of this dispute has to do with the legitimacy of the decision and the decision making process undertaken by the parties named in the court documents in rejecting the tender submission by Fix-it Depot to rehabilitate 328 kilometres of GPL’s medium and low voltage distribution network, despite the fact that the tender was the lowest by more than $1 billion and the fact that there was no legitimate reason to reject it. Fix-it Depot had formed a joint venture with Colombian civil engineer Enrique Lourido Caicedo, and bid for the contract at some $3.5 billion when the engineer’s estimate for the project was $3.8 billion.
“The decision to award the contract to [the Chinese group] in no way benefits the public since the tendered sum is G$1,093,737,993 higher than the Applicant’s tender, that amount resulting in a waste of taxpayers’ funds, being approximately 25 per cent higher than the engineer’s estimate…,” the rejected businessman stated.
Moreover, James outlined that not only did a plain reading of the tender evaluation criteria reveal that they were vague and without the requisite transparency, failing sufficiently to disclose the contract award criteria and weightings in advance, but GPL failed to properly apply the disclosed evaluation criteria and in so doing, improperly awarded the tender to the Chinese group, a company which did not satisfy the tender evaluation criteria.
In this regard, James submitted that the decision to reject the applicant’s tender and subsequent award of the contract to the Chinese consortium must be quashed in its entirety, as that decision and award was unfair, irrational, ultra vires, and without lawful basis, and the tender and contract award process fundamentally unfair, illegal and flawed.
The rehabilitation of 328km of GPL’s low and medium voltage network, including the procurement and installation of smart meters throughout the network, is part of the Power Utility Upgrade Programme, which is intended to enhance the company’s operational efficiency. It is being funded through an Inter-American Development Bank (IDB) loan.
