Nov 06, 2016 News
– contractor shocked
A local contractor has raised red flags over a multi-million-dollar contract for the supply of four pontoons to the Ministry of the Agriculture for use on the East Demerara Water Conservancy (EDWC).
According to Friendship, East Bank Demerara-based Engineering & Construction Inc. (ECI), despite the Chief Justice’s order quashing the Ministry’s award of a contract to another company and compelling it to reconsider its decision not to enter into a contract with ECI unless cause can be shown why the order should not be made absolute, the Ministry ignored the Chief Justice’s instructions.
ECI has since stated that it has launched a complaint with the World Bank, which is funding the construction of the four pontoons for use by the National Drainage and Irrigation Authority (NDIA), an arm of the ministry.
The case was filed against the Ministry of Agriculture, the Minister of Agriculture, its Permanent Secretary, Dhaneshwar James, Project Coordinator of the Ministry of Agriculture, and the Attorney General.
According to court documents, on August 23, 2016, Chief Justice, Yonette Cummings-Edwards, issued an Order Nisi quashing the Ministry of Agriculture’s decision to disqualify ECI and award a contract for the supply of pontoons with mud bins to Guyana National Industrial Company Inc. (GNIC).
The court order in August said that the ministry must within two weeks reconsider its decision to disqualify ECI, unless cause is shown why those orders should not be made absolute.
ECI is represented by attorney-at-law Devindra Kissoon of London House Chambers.
However, based on an article contained in a November 4, 2016 local newspaper and a GNIC release, it appears that the ministry went ahead, despite the court order preventing the same, to start the construction of the pontoons.
Samuel Barakat, on behalf of ECI, in his affidavit, stated that the Ministry published an invitation for bids inviting tenderers to build new pontoons with mud bins in accordance with certain minimum specifications.
He claimed that on April 5, 2016, ECI submitted the lowest tender in the sum of G$211,998,000 with GNIC being the next lowest tender, at G$246,411,398.
ECI alleges that it first discovered that it had not been awarded the contract on July 29, 2016, when a representative from GNIC made contact to inquire if ECI would be willing to act as a sub-contractor to build the subject pontoons and bins.
ECI stated that prior to this, it had not been notified that it had lost its bid, nor was there any public announcement of the tender award as was required.
Barakat said that after inquiries were made at the Ministry on and after August 2, 2016, ECI was informed not only had it been disqualified from the tender because it allegedly failed to supply technical specifications for the mud bins and pontoons, but that GNIC has been awarded the contract.
ECI claimed in its documents that it was also informed that GNIC’s tender price of $246,411,398 had been lowered post tender.
ECI claimed that only after it made its grievance known to the Ministry on August 2, 2016, that it received a backdated letter dated July 27, 2016 from the Ministry notifying it that its tender had been rejected.
ECI’s lawyer argued that lowering of the GNIC’s contract price was illegal since section 39(4) of the Procurement Act states “No change in a matter of substance in the tender, including changes in price … shall be sought, offered or permitted.”
ECI also argued that Section 14.7 of the Instructions to Bidders mandated that “prices quoted by the Bidder shall be fixed…and not subject to variation on any account.”
ECI also argued that its tender was compliant since the pontoons and mud bins were made to order according to Ministry specifications.
ECI alleged that despite writing the Attorney General’s office protesting the contract award, that hard copy letter was returned unanswered.
ECI also alleged that the Ministry has unlawfully attempted to hide from the public the value of the contract award to GNIC.
The company had argued that the Ministry’s decision to reject ECI’s tender and award the contract to GNIC was unlawful, unreasonable, unfair and in breach of terms of the ITB and the Procurement Act since did ECI submit the lowest confirming tender, but in any event the respondents unlawfully altered the contract sum post tender allowing GNIC to reduce the amount of its tender.
The court matter is continuing, but already GNIC has this past week delivered one pontoon and is promising to complete and hand over the remaining three by the end of the month despite the existence of the Order Nisi preventing the same.
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