Legal action looms over questionable contract award

Last Updated on Saturday, 6 January 2024, 16:52 by Denis Chabrol

A company , which believed it unfairly lost a government bid to supply GY$120 million worth of electrical equipment because it did not supply two “immaterial” documents, is considering challenging the decision by government.

Chief Executive Officer of Akamai Inc; Brian Hackett said he would be seeking legal advice to follow up on indications by the Public Procurement Commission (PPC) in its report that seeking court redress is an option.

“I intend to discuss it with the attorneys and find out what are the next steps because there are a number of flaws in the report which leaves a lot to question about integrity from the entire system,” he told DemeraraWaves Online News.

With the PPC now apparently having closed its case on the issue and would take no further action, Mr Hackett said the PPC has guided Akamai Inc about the next steps.

Akamai Inc had submitted a bid to supply line hardware, including transformers, conductors and other accessories, for the Linden Interconnected System.

Tels; he said, was declared the winning bid for GY$124 million.

The Office of the Prime Minister had in March 2023 invited bids for the supply of the line items, and the bids were opened in April 2023.

Five bids were returned, and unsurprisingly the lowest bid by Akamai Inc. was the only bid deemed non-responsive. Akamai Inc. by the way is the sole distributor of the requested line hardware; hence it was expected that the company would submit the lowest bid.

Opposition Parliamentarian, David Patterson on Friday slammed ggovernment’s evaluation committee for deeming Akamai Inc. non-responsive on the grounds that the bidder failed to submit documentary evidence to demonstrate supply of similar goods in at least 1 contract in the last two years to a minimum value of G$5M, and the bidder failed to provide a letter stating that the company had not had any terminated contracts.

For his part, Mr Hackett said, “I find it difficult to understand that the two immaterial documents that they said were not submitted could so significantly impact the decision.”

Deeming the PPC report on the complaint by Akamai a “whitewash of the administrative review process” that also “falls short of the standards expected from a constitutional agency,” Mr Patterson said five bids were returned, and unsurprisingly the lowest bid by Akamai Inc. was the only bid deemed non-responsive.

“Akamai Inc. by the way is the sole distributor of the requested line hardware; hence it was expected that the company would submit the lowest bid,” the lawmaker said.

Mr Patterson, in dismissing the basis for deeming Akamai’s bid unresponsive, pointed out that  there was no prescribed format for the submission of evidence of previous projects, and so Akamai Inc. submitted a spreadsheet detailing all their previous contracts, detailing the procurement agencies as well the contract sums. “However, not surprisingly, in an effort to deem the bidder non-responsive, the procurement agency found this detailed listing unacceptable,” said Mr Patterson, a British-trained Quantity Surveyor and former Minister of Public Infrastructure whose responsibilities had included the electricity sector.

He said a simple conversation with the bidder revealed that he did in fact fulfill the second requirement which the evaluation committee deemed non-responsive – which was a letter addressed to the procuring entity stating specifically that none of their projects was ever terminated. He charged that that was “clear evidence that this information was fraudulently omitted by the evaluation committee or ignored.”

He assailed the PPC for failing to contact Akamai Inc during its probe into the company’s complaint. “In arriving at its report to support the award, the PPC never contacted the bidder, seeking clarifications on the claims for debarment made in the evaluation report, as is standard when reviewing complaints, whereby all parties to the complaint should be given an opportunity to defend their position. He added that the PPC, a constitutional agency with an annual budget of almost $300M has taken eight months to respond to the bidder’s complaint an “in the end simply rubberstamped a defective and possibly fraudulent evaluation report, without even giving the complainant the opportunity to prove otherwise.”

He accused the PPC of simply adopting a  defective report, performed no investigative analysis and rubberstamped the award.

Mr Patterson, who is also a senior member of the Alliance For Change (AFC) political party, said the AFC nominated commissioner within the PPC highlighted that both opposition commissioners found the submission of the list of projects comprehensive and acceptable and  that they were unware that the bidder had actually submitted the claimed missing letter regarding terminated projects.

He said the AFC nominated commissioner also informed that she recommended that natural justice procedures be adopted, whereby all parties should be given an opportunity to respond before a final decision is made by the commission, however this was overruled by the majority vote of the

He noted tgat section 5 (5) (a) of the Procurement Act specifically states “a procuring entity may not disqualify a supplier or contractor on the ground that information submitted concerning the qualifications of the supplier or contractors was inaccurate or incomplete in a non-material respect.”

On that basis, Mr Patterson said the claimed incomplete information as supplied by this contractor are all non-material in every respect, and in accordance with the Act, such non material deficiencies can be remedied.