Ramon Gaskin challenges Amaila Falls road contract award in court

Dec 16, 2010 News

Yet another legal challenge has been launched against the issuance of a US$15.4M contract to Synergy Holdings to build the access road to the proposed Amaila Falls Hydroelectric project.
The matter has been taken before the Full Court for an original hearing and is not an appeal against the recent ruling by Chief Justice (ag) Ian Chang, the parties said.

Makeshwar Fip Motilall

Ramon Gaskin, in his application, to the Full Court, is contending that there have been flagrant administrative violations of the Procurement Act which rendered the award of the Amaila Falls contract to Synergy Holdings Inc. “It is unconstitutional, ultra vires, null, void and of no legal effect.”
According to Gaskin the rule of law requires that state power be exercised within the limits provided in the statutes and be exercised fairly and reasonable and in good faith.
He is also challenging the role that the National Industrial and Commercial Investment Limited (NICIL) played in procuring a contractor for the construction of the road.
Gaskin, in his application, is contending that NICIL was not a procurement entity within the meaning of the Procurement Act when it purported to invite proposals for a Design and Build Road and Transmission Line Project from Georgetown to Amaila Falls.
He says that NICIL is not and was not a public officer within the meaning of the Interpretation and General Clauses of the Procurement and as such could not be delegated to exercise the function of the Minister of Public Works and Communication or the President.
Gaskin in his application is contending that for NICIL to be the body to which the bids were submitted was in itself a breach of the Procurement Act.
According to Gaskin the Proccurement Act specifically authorises a procuring entity to solicit “tenders”, which should be distinguished from “Request for Proposals” adding that NICIL is not a procurement entity.
“NICIL on behalf of the Government was not seeking consultancy services but was seeking contractors for the construction of the road to Amaila Falls.”
Gaskin in his application pointed to several contracts for the construction of roads that were advertised compliments of this newspaper which invited bids to be submitted to the National Procurement and Tender Administration Board at the Ministry of Finance.
He stated also that significantly and inexplicably, persons or companies sending proposals for the Amaila Falls Project were required to deposit them in the designated Tender Box at the Head Office of NICIL, addressed to the Executive Director NICIL who is Winston Brassington.
He pointed out that the Procurement Act states that “Each Ministry, Department or Agency that
engages in procurement shall create a Tender Board and subject to section 17(1), each such Tender Board shall have jurisdiction over procurement by the relevant Ministry, Department or Agency, the value of which is less than such an amount as may be prescribed by regulations.”
Gaskin points out that the important provisions of the Act have been flagrantly violated in more than one way inasmuch as a procuring entity did not issue the “Request for Proposals”; did not fix the place for, and a specific date and time as the deadline for the submission of tenders as required by the Procurement Act.
He pointed to the Procurement Act which states that the National Board shall be responsible for exercising jurisdiction over tenders the value of which exceeds such an amount prescribed by regulations, appointing a pool of evaluators for such period as it may determine, and maintaining efficient record keeping and quality assurances systems.
The Act also states that “Tenders shall be opened in public at the time specified in the solicitation documents as the deadline for the submission of tenders, or at the deadline specified in any extension of the deadline, at the place and in accordance with the procedures specified in the solicitation documents.”
Gaskin in his application questions if the “change of place for depositing tenders made in ignorance of the law or was it deliberate and designed to give an opportunity to persons who were mindful of manipulating the tender process…It was indeed a fortuitous opportunity.”
According to Gaskin in his application because the contract value of the Amaila Falls project exceeds the threshold it necessitates, a public tender through the tender board is subject to the provisions and procedure of the Procurement Act.
Gaskin asserts in his application that “The question to be determined by these proceedings is whether there have been flagrant violations of the provisions of the Act and/or Regulations.”
He contends also that when Parliament creates a statutory power it vests that power in some individual or body who is then able to exercise it.
“Insofar as the Procurement Act is concerned power is vested in a Ministry to act as a procuring entity to engage in procurement “of goods by any means including purchase, rental, lease or hire purchase, and the acquisition of construction, consulting and other services.”
As such Gaskin, through his lawyers, contends that a delegate may not delegate to another person or body the power, which has been delegated to him or a body.
“The exercise of the power by another person or body will be invalid. The Procurement Act does not contain any express power to delegate and it is respectfully submitted there is no implied power to delegate,” according to Gaskin.
He says that the Ministry of Public Works and Communication would have been the most appropriate procuring entity under which invitation for bids should have been made for the Amaila Falls Project.
In his submission, Gaskin reminds that “the Constitution of Guyana recognizes and accepts the rule of law that “disputes as to the legality of acts of public law are to be decided by judges who are independent of the executive.”