The Bid Protest Committee (BPC) has found that the Evaluation Committee which assessed the bids for the supply of boxed juices to the Ministry of Education, acted unlawfully by evaluating the bid submitted by Tropical Orchard Products (TOPCO) based on past performance. The decision was handed down on December 12, 2016.
In the ruling seen by Kaieteur News, the BPC said that the evaluation committee was obligated by law to disclose in the tender documents the criteria that would be used to evaluate bidders.
“Additionally, the evaluation committee acted unlawfully when it went outside the scope of its remit by evaluating the Complainant (TOPCO) on the criterion of past performance.”
According to the BPC, Section 5 of the Procurement Act Cap. 73:05 speaks to the qualification of suppliers and contractors, and Section 5(1) sets out the various evaluation criteria that a procuring entity, in this case the Ministry, can use to evaluate bidders.
The Section says “every supplier or contractor wanting to participate in procurement proceedings must qualify by meeting such of the following criteria as the procuring entity considers appropriate.”
Despite this, the BPC said in its decision that the Section should not be read in isolation from Section 5(3) which states, “any requirement mentioned in this section shall be set forth in the prequalification documents, if any or in the solicitation documents and shall apply to all suppliers or contractors. A procuring entity shall impose no criterion, requirement or procedure with respect to the qualifications of suppliers or contractors other than those set forth in this section or the regulations.”
Therefore, the BPC reasoned that subsection (3) places two burdens on the procuring entity. Firstly, the entity can choose any criterion to evaluate bidders with each criterion being set out in the documents that are supplied to the bidders and must apply equally to all bidders. Secondly, the entity cannot include any criterion, requirement or procedure that is not provided for under Section 5 or the regulations.
The decision stated, “This means that while the procuring entity is given discretion to choose any criterion to assess bidders, the criterion must be disclosed in the tender documents. According to the BPC while modification can take place it must be done before tenders are submitted.
The BPC said that the law provides for full disclosure because bidders must not be ambushed, that they must know exactly what is required of them.
“This is to ensure that the evaluation process is transparent and objective. Therefore, the procuring entity cannot introduce a new criterion following submissions of tenders. To do so would be to go against the intent of the legislation and offends against the principles of transparency and fairness which is fundamental to the integrity of the procurement process.”
Further, it was highlighted in the ruling that the complainant’s bid, according to the evaluation report received a “Yes” for all fourteen criteria which meant that had complied with all that was required. Additionally, the bid was the lowest and as such, TOPCO was the tenderer with the lowest evaluated bid that was responsive to the bid documents.
However, all of this fell through because the evaluation committee sought to consider what was revealed to them by the procuring entity.
“In essence they embarked on an unlawful procedure taking into consideration numerous problems that the procuring entity stated they had encountered since 2012 with the complainant. This resulted in the complainant being adjudged non-responsive, despite responding positively to the bid documents and being the lowest bidder.”
According to the BPC, the law provides for the procuring entity to reject the recommendation of the evaluation committee. Upon rejection, the procuring entity can then advise the evaluation committee on which bidder should be the lowest evaluated bidder.
“Therefore, had the evaluation committee not erred in their assessment the procuring entity probably would have had a plausible case for rejecting the complainant even though they were the lowest evaluated bid.”
TOPCO, a subsidiary of Demerara Distillers Limited filed its complaint to the BPC on September 23, 2016. The review of the award was on two grounds. TOPCO claimed that the procuring entity failed, refused and/or neglected to consider only such evaluation criteria as set forth in the solicitation and tender documents contrary to the Procurement Act.
Secondly, the review was based on the non-disclosure of past performance as an evaluation criterion in the solicitation documents prevents and precludes the procuring entity from belatedly relying on such criterion in the evaluation and determination of the bid.
Four bids were received for the contract, TOPCO – $506,688,000, Ansa McAl – $628,992,000, Guyana Beverages Inc – $542,360,000 and Caribbean International Distributors Inc $545,272,000.
The contract was awarded to Caribbean International Distributors, a subsidiary of Surinamese company Rudisa Beverage and Juices N.V. Company. The contract award was tainted with controversy when it was revealed that the Government Analyst Food and Drug Department (GA-FDD) did not test a sample for Topco so as to make a comparison. Additionally, the department lacked the necessary equipment to properly conduct testing.
Head of the GA-FDD Marlan Cole had come out saying that had there been a sample from TOPCO, the company would have come out on top of the other samples tested due to the product’s juice content.
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