Dear Editor,
Mr Gordon Forte’s letter to Stabroek News of February 22, captioned ‘REO has no legal power over works contract’, misleads on a number of issues.
First, Mr Forte referred to my client Mr Carl Parker as the ex-REO of Region 9. The Government of Guyana has properly acted in replacing Mr Parker in Region 9, until the conclusion of his matter engaging the court. He is not fired but currently on leave.
Secondly, Mr Forte appears to have already tried, prosecuted and convicted my client, contrary to the spirit and intent of the very same Constitution that he refers to, which guarantees an accused the opportunity to defend himself in a fair judicial process. Article 144 of the Constitution of the Co-operative of Guyana states at 144 (1) if a person is charged with a criminal offence, then, unless the charge is withdrawn the case shall be afforded a fair hearing within a reasonable time by an independent and impartible court established by law.
Article 144 (2a) states that every person who is charged with a criminal offence shall be presumed to be innocent until he has been proved or pleaded guilty. So while Mr Forte may wish to use the mainstream and social media to prosecute Mr Carl Parker, he knows fully well that Mr Parker and his counsel are restricted on what they can say, as the matter is now sub judice. Mr Forte may also be baiting me to reveal details of our defence strategy and case theory; this will not be done. However, I can assure him that I have hard documented evidence which supports my case theory.
Thirdly, Mr Forte who appears to be familiar with the Regional tendering and procurement system for goods and services, states that there is a Regional Works Committee, possessed of the function of overseeing the work of contracts which have been awarded. This is self-explanatory, as the Regional Works Committee does not award contracts. They play a supervisory role in ensuring that contractors perform based on contract specification and design, and that all work is performed and approved prior to final payment.
During my tenure as a member of Public Accounts Committee in the Eighth Parliament, I learned of the various ways contracts are awarded, including those for construction, and unless the requirements have changed, I wish to share what was then applied.
- Contracts $600,000 and below: The Regional Executive Officer can award based on three quotations received from eligible contractors. Open tendering can also take place at this level.
- Contracts $600,000 to $10M: restrictive tendering can take place. That is to say, the procuring entity can invite as many contractors as possible, but not less than three, to submit tenders for works. The lowest responsive bidder will be awarded the job, unless the Regional Tender Board can justify why that was not done. Open tendering can also take place at this level.
- Contracts $10M to $14M: open tendering where the works are advertised in a widely circulated media and contractors are invited to apply. The award follows the same as 2 above.
- Contracts $14M and above will be adjudicated by the National Procurement and Tender Administration Board (NPTAB).
In the case of number 1, the REO can select three contractors of his choice and give them a blank schedule of works for them to insert their prices. When these quotes are returned within the specified time frame, the REO, with advice from his engineer, will do an assessment of the quotes and decide who best is suited for the job at hand. The winner will be called in and the contract is signed followed by a commencement order.
In the case of number 2, the Regional Executive Officer can select any number of contractors, but no less than three, who will be given a blank schedule of works. These will be deposited in the tender box at a predetermined date and time, after which no other submissions will be allowed.
The tender box is opened in the presence of the contractors who have submitted their bids, or their representatives. The figures submitted by each bidder are called out for everyone’s benefit.
The submissions are then sent to the Evaluation Committee for evaluation and recommendation for award. The Tender Board will then meet to examine the evaluated bids and make an award. Justification must be provided for not accepting the Evaluation Committee’s recommendation(s). The winner is called in and contracts are signed followed by the issuing of the commencement order.
In the case of number three, the works to be contracted are published in the national media of widest circulation and at prominent places within the Region of execution. It is also sent to NPTAB for publication on their official website. The process of opening, evaluation and award follows that of number 2. Projects over $14M are adjudicated over by NPTAB.
It must be noted that all contracts can follow the procedures as outlined in the Open Tendering Option. Of importance too is the fact that contracts can be awarded to communities to the tune of $5M and less, without them having to tender. If in the judgement of the Tender Board a particular village (case of Region 9), has the capacity to do selected work, that project can be given to that community. Communities can also apply for works via the tendering process.
Another component of the tendering process is the award of contracts of an emergency nature.
If in the opinion of the Regional Executive Officer, there are considerable risks to life and limb; or if a project, if not done presently, will result in excessive cost to the government in the short term; or if a project, if not undertaken immediately can result in undue difficulties to the well-being of communities, among other considerations, he can order that emergency works be instituted without initial recourse to the Tender Board.
In this case he can call in a selected contractor and order that the contractor submit an estimate for the works to be executed. However, at the earliest opportunity the matter must be brought to the Tender Board for ratification/approval.
A summary of all awards, inclusive of Tender Board minutes are sent to the Regional Chairman, who in turn instruct the Works Committee to monitor these projects to ensure they are executed according to the schedule and bills of quantities. The Works Committee also signs off on the Final Inspection form to verify that the works were so completed.
Finally, Mr Forte makes a quantum leap in concluding that I ascribe to the REO’s legal power over the awarding of public work contracts.
Hopefully, Mr Forte would exercise patience and allow due process to take place, as there is an inherent presumption of innocence and Mr Forte would agree every accused must have his day in court.
Yours faithfully,
Jerome Khan
Attorney-at-Law for
Carl Parker
