…confidentiality agreement imposes unilateral restriction on bidders
…project document allows for tender to be cancelled at any time
It was only a few weeks ago that Government, in a tender seeking expressions of interest from contractors for the new Demerara River Bridge, attached a number of restrictions that saw bidders waiving a number of their rights to maintain confidentiality.
That trend is continuing, with bidders expressing an interest to partner with Atlantic Hotels Incorporated (AHI) to build, own, operate and transfer (BOOT) a casino at the Marriott Hotel also being saddled with red tape and restrictions.
Bidders engaging in the project have to sign a non-disclosure agreement, as has been noted with a number of other projects, including the new Demerara River Crossing, among others. The vernacular of this document reveals that bidders are restricted from disclosing “information of whatever nature relating to the project which is obtained either in writing or orally from or pursuant to discussions with management and employees of the AHI project or any of its subsidiaries or advisors of AHI.”
The confidentiality agreement also informs prospective bidders that if they are required by a valid court order to disclose confidential information, they are to immediately notify AHI – a Government owned special purpose company that had constructed, and is now maintaining, the Marriott Hotel. They also have to seek the company’s advice on seeking legal ways to “resist or narrow” the requirements of the order.
The Marriott Hotel
The document adds: “if disclosure of such information is required, exercise your best efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the disclosed information which AHI so designates.”
Going even further, the agreement sets out that bidders cannot disclose to anyone outside their company “either the fact that discussions or negotiations are taking place concerning a possible transaction by you relating to the project or any terms, conditions, or other facts with respect to any such possible transaction, including the status.”
Rejection of proposals
For some time, the Government’s tendency to annul whole tenders during the early stages of projects has been the source of much concern. The political Opposition has even accused the Government of using this practice to get rid of legitimate but ‘out of favour’ bidders vying for a project.
In the invitation of ‘expressions of interest’ project document, AHI ensures it is covered in case it decides to cancel the tender. According to section 21, Rejection/Disqualification of Proposals, the public company states it doesn’t have to accept the lowest costing bid, or even any bid.
“AHI is not bound to accept the lowest or any EOI or Proposal Documents, and reserves the right to reject any or all EOI or Proposal Documents,” AHI sets out, adding that it can also disqualify any EOI or proposal documents based on three reasons.
Non-compliance with any provision in the EOI guidelines; inconsistency in the numbers or words in the EOI; and failing to provide enough details to allow AHI to do a thorough evaluation.
The Guyana Government, late last month, sent out the invitation in its search for partners to finally complete construction and operation of the casino at the Marriott Hotel in Kingston, Georgetown.
The US$58 million project was completed in 2015, and was advertised as a state-of-the-art, energy-efficient edifice, complete with hotel, casino and entertainment complex. According to the request for expressions of interest (EoI) advertised locally, Atlantic Hotels Inc, the special-purpose Government-owned company that was set up to construct and own the Marriott Hotel has invited interested parties to present proposals for the completion and operation of the facility.
According to the advertisement, “AHI is seeking expression of Interest from reputable organisations/individuals to complete the construction, outfitting and operating its casino annexed to the Marriott Hotel…”
The Government-owned company says it “is interested to receive EoIs from either persons or companies, either individually or as part of a joint venture/consortium.”
AHI said preference would be given to submissions by applicants who are established in the gaming and entertainment industry.
It was also pointed out that in selecting the lessee, “AHI will consult with Marriott.”
Those interested in partnering with AHI in order to complete construction and operation of the casino are being asked to submit design proposals, proof of financial viability, a financial plan; and are being asked to sign on to a ‘confidentiality undertaking’ on registration.
Government had, in the past, publicly indicated its intention to sell off the multi-million-dollar tourism flagship project of its predecessors.
