Topco juice matter now in the hands of Public Procurement Commission

Feb 12, 2017 News

---

Following the ruling handed down by the Bid Protest Committee (BPC) on the juice contract award in favour of Tropical Orchard Products (Topco), the matter has now been put in the hands of the Public Procurement

Commission (PPC).
This is according to Minister of State Joseph Harmon, after he was asked last Friday what would be the next course of action government will be taking in light of the BPC ruling on the contract award.
Harmon said that as it relates to an appeal in the Topco matter, it is still in the domain of the PPC. “It is out of government’s hands right now, so it is not something where the government can go and say look, give the contract to that person or give it to that one. It is in the Public Procurement Commission’s area and they would have to take the necessary steps.”
Further, the Minister was reminded that the ruling handed down by the BPC on December 12, 2016 had recommended that Topco be compensated. On this note, Harmon said, “In that event the AG (Attorney-General Basil Williams) would have to advise government, but I say that basically it is a matter for the public procurement process. They will have to make that determination and when the advice comes, the Attorney-General would advise government on what steps to take”.
Topco, a subsidiary of Demerara Distillers Limited, had filed a complaint to the BPC after it lost a contract award to Caribbean International Distributors, a subsidiary of Surinamese company Rudisa Beverage and Juices N.V. Company.
Topco claimed that the procuring entity, the Ministry of Education 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 which 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 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.
Meanwhile, the BPC in its ruling concluded that the Evaluation Committee which assessed the bids for the supply of boxed juices to the Ministry acted unlawfully by evaluating the bid submitted by Topco based on past performance.
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.
An excerpt from the judgment said, “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 of 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.

---

---