The government cannot avoid the provisions of the Procurement Act

Dear Editor,

In his weekly column, published in the Sunday Stabroek, Mr Ralph Ramkarran, this week, chose to write in defence of and indeed, advocates for, the specialty hospital project to be awarded to Fedders Lloyd without going through any procurement process. “There is absolutely no reason why a new bidding process must be undertaken when the contract is ready to be awarded… There is no rule or principle which dictates that for a new contract, a new bidding process has to be undertaken, …” boldly writes Mr Ramkarran.

 

The following cannot be disputed:

  1. that a public procurement exercise was undertaken in respect of this project in accordance with the Procurement Act Cap 73:05, Laws of Guyana;
  2. that the process, manned by the National Tender Procurement Administration Board (NTPAB) and its team of technical evaluators, disqualified Fedders Lloyd from this procurement process on certain technical grounds;
  3. that this same process produced Surendra Engineering Ltd as the successful bidder;
  4. that this company’s bid, qualifications and competence for the project did not only meet the satisfaction of the evaluators but would have enjoyed the imprimatur of the Indian Exim Bank, and presumably, the Indian government;
  5. that the contract was awarded to Surendra Engineering Ltd;
  6. that the award of the contract to Surendra Engineering, brought that procurement process to an end;
  7. that Fedders Lloyd’s bid was never evaluated because they were disqualified at a preliminary stage.

 

The contract between the Government of Guyana and Surendra Engineering Ltd was terminated for breach of certain fundamental terms by the company. That is the current state of play.

In the face of the provisions of the Procurement Act, with which I must presume Mr Ramkarran is familiar, how can learned Senior Counsel seriously advance the contentions to which I have made reference above? The long title of the Procurement Act, without more, renders his arguments implausible: “An Act to provide for the regulation of the procurement of goods, services and the execution of works, to promote competition among suppliers and contractors and to promote fairness and transparency in the procurement process.”

Section 3 applies the Act to all procurement by procurement entities; this includes every Ministry, Department, Agency, Unit or Sub Division of the Government of Guyana. The only exception is where procurement is done in respect of matters of national defence or matters of national security. The Act vests the National Procurement And Tender Administration Board with the responsibility of managing, conducting and executing the procurement process.

Section 25 provides, “Public tendering is mandatory…” Indeed, there are exceptions, none of which apply in this instance. I can cite more sections of the Act and refer to decisions of our court, all of which emphasise the mandatory nature of the public procurement process adumbrated by the Act. I am therefore flummoxed that esteemed Senior Counsel can argue that there is some discretion residing in the government which authorises it to avoid the provisions of the Procurement Act and handpick a contractor to do a job valued at several million United States dollars. It is nothing but inanity. From the article, I gather that learned Senior Counsel appears to find corruption abhorrent. Yet he advocates the avoidance of one of the most effective pieces of anti-corruption legislation and sees nothing improper with awarding a multi-million US dollar contract to a contractor without any procurement process!

But then again, perhaps my learned Senior may have cast off his silken robe momentarily and was engaging in light political rhetoric when he wrote that piece. How else can one explain his extraordinary remark that the PPP/C is the most corrupt administration of post-independent Guyana, and he sat on the Executive Council of that party for 21 of the 23 years it was in government and served as Speaker of the National Assembly for a decade on behalf of the same PPP/C government, without saying a word.

 

Yours faithfully,

Mohabir Anil Nandlall, MP

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