Dear Editor,
This letter follows up your editorial of Sept. 5 last, “NPTAB response” in relation to the tender for construction of North Ruimveldt Secondary School, and I wish to associate myself with your comment that NPTAB must be commended for the response as a move towards “enlightened governance”. However as you hinted, the response itself is non-responsive. The Procurement Act which creates NPTAB, decrees core principles of promoting fairness and transparency in procurement. International practice requires that each bidder is treated equally; this is entirely consistent with “fairness” in the Guyanese legislation.
However special mention must be made of bid responsiveness, which is not dealt with in the Procurement Act, and so may cause complications, though this need not be so. This responsiveness refers to deliverables, being documentation NPTAB expressly requires of all intended bidders. The responsiveness test is best seen by readers as a procedural pre-evaluation review of submitted bids to screen out bids which do not have the deliverables required, carried out to facilitate the speedy execution of substantial evaluation of bids, when started. The process is legitimate, providing it satisfies the mentioned core principles at all times. The responsiveness test should be done on a fail or pass basis, with ‘failed bids’ being set aside and taking no part in the substantive evaluation, whatsoever.
The evaluation of bids is the aspect dealt with by the legislation, whereby NPTAB may use only evaluation criteria outlined in the bid document. Since 2000 ‘using evaluation criteria’ has been clarified in Commonwealth jurisdictions, in a landmark case just prior, to include, either stating the criteria with given weights, or arranging criteria in order of importance which would have attuned weights given later; failure to do either in the bid document means that the bid must be evaluated on criterion of price alone. Hence SN editorial board and readers alike must not accept the argument that the responsiveness of bids is predicated on whether bids are compliant with all of the evaluation criteria.
Responsiveness of bids must be differentiated from evaluation of the same – and this is not just splitting hairs. Responsiveness must be founded on NPTAB expressly required documentation from bidders and is a preliminary stage of the overall process; evaluation is founded on the relevant criteria outlined, and must culminate in a ranking from which the successful bid is determined. “Requirements” and “criteria” acquire special meanings in relation to responsiveness and evaluation, respectively. To re-label criteria as requirements, then use these to fail any particular bid at the responsive test stage is a charade, and undermines the entire evaluation process. For example, to re-label criteria in order to require a bidder to deliver documentation pertaining to if that bidder abandoned a project or had one terminated at any time, when either state of affairs connotes wrong-doing on the bidder’s part is irrational, might be a violation of one’s Constitutional rights and must be perplexing to the bidder. Plus, NPTAB is not competent, in my respectful view, to delve into such a matter.
Even if NPTAB is in possession of a final order of an arbitrator, tribunal or court, the bidder is entitled to a hearing before being placed on a watch list, for an appeal may or may not be pending. For this reason, on this particular point, I diverge from SN editorial’s position that NPTAB can unearth information on the performance of Kares Engineering Inc., on Kato School. Similarly, re-labelling criteria to require from a bidder documentation of ownership of key equipment, and using such documents, or lack thereof, to fail the bidder at any stage is a charade; also, the requirement does not treat bidders equally since it discriminates against a bidder who plans to hire key plant as required, rather than commit to capital expenditure. Nor does the rampant mis-evaluation end here: assuming that all the criteria as indicated by NPTAB are valid as such, then the established wisdom is that when all non-price criteria are weighted the total must not out-weigh the criterion of price in an irrational manner.
For example, in a 2011 bidder’s legal challenge overseas (one needs to rely on the Commonwealth jurisdictions due to the near-absence of bidders’ challenges in Guyana; but these are at least, persuasive) a contract award using an assessment where 40% of the marks were allocated to non-price criteria was found to be unlawful as the allocation could not be justified; meaning that 60% allocated to price was too low, in that particular case. NPTAB response is silent on this aspect. Based on all the foregoing, the NPTAB evaluation is unintelligible. Far from being fair, open and meting out equal treatment, the pointed exclusion of the two lowest bids seems to be based on a hidden agenda.
Sincerely,
Donald Rodney
