Court to rule on GGMC‘s right to award road contract to mining company

Nov 28, 2018 News

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The Appeal Court is set to rule on a matter in which the Guyana Geology and Mines Commission, (GGMC) is accused of breaching the procurement process and awarding a private mining company a multimillion-dollar contract for rehabilitation works to a road at Aremu in Region Seven.
The matter is premised on a fall out between Managing Director of BK International Inc., Brian Tiwarie over a contract which was awarded to CB&R Mining which is owned by Chunilall Baboolall.
In documents filed in 2013, Tiwarie claimed that award of the contract was made in violation of the provisions of the Procurement Act 2003 and was procedurally improper and unlawful.
Tiwarie had noted that the handing out of the approximately $385M contract to CB&R mining failed to submit any information required by the Procurement Act as it relates to general experience, specific experience, personnel capabilities, equipment capabilities, evidence of cash in hand, lines of credit etc.
His contentions were upheld by former Chief Justice (Ag) Ian Chang. In a ruling in 2014, the Chief Justice (CJ) noted while GGMC contended that it was not bound by the Procurement Act; GGMC was indeed an agency of the executive Government and is therefore a “procuring entity” for the purposes of the Act.
However, this month, in a bid to overturn the decision lawyers representing Baboolall presented arguments contending that the arrangement with GGMC is purely a private law arrangement which is not amendable by Public Law relief and therefore should not have been rendered null and void by the former Chief Justice.
Among his contentions, the businessman noted that the CJ ignored the private citizen’s contractual rights and the Court Order put the GGMC in breach of the contract.
He noted that the former CJ’s decision was against the weight of evidence presented in the High Court trial. Further, he contended that the proceeding is an abuse of the Court and should have been dismissed.
In addition to setting aside the Order of the CJ, the businessman asked the Court to declare the agreement between GGMC and CB&R Mining is valid and legal.
In his original writ, Tiwarie, claimed in an affidavit that four bidders were invited to tender for the rehabilitation of the Aremu Road Phase 1, Emergency Works Region Seven.
He said the companies invited to submit their sealed bids were Mekdeci Machinery and Construction Inc., BK International Inc., R & A Construction, and CB&R Mining which is owned by Chunilall Baboolall.
The special invitation sent to BK International outlined that the bidding will be conducted through the National Competitiveness bidding (NCB) procedures, specified in the Procurement Act 2003.
Of the four companies, three responded. The bids made by the companies were as follows; CB & R Mining -$385,562,188, MMC Inc.- $525,413,240 and BK International- $379,707,900.
Firstly, according to the Invitation to Bid (ITB) 5.4 of the Bidding Data Sheet, it orders that bidders in order to qualify must submit their NIS and GRA Compliance Certificates.
However, Tiwarie claimed that the mining company failed to submit these certificates.
In addition, the mining company did not submit any information required by the Procurement Act as it relates to general experience and other requirements.
Tiwarie said, too that a check at the Deeds Registry in Georgetown and Suddie, Essequibo exposed that CB & R is not a company registered in Guyana nor is it registered as a business name under the business names (Registration Act).
Tiwarie says that under the Act, the evaluation committee is supposed to use only the evaluation criteria outlined in the tender documents. The tenders are supposed to be evaluated and the lowest tender determined.
The Act also says that the evaluation committee may regard a tender as responsive only if it confirms to the requirement set forth in the tender documents.
BK International had initially complained to the GGMC and according to the company, nothing was done.
Further, in a letter to the Ministry of Natural Resources and the Environment, the businessman said, “There was a meeting on July 22, between the representatives of BK Quarries Inc. and the Ministry of National Resources and the Environment.
The two after discussing the issues regarding the evaluation of the Aremu Road, requested an investigation to be done by the Caribbean Engineering and Management Consultants Inc., (CEMCO) before the commencement or continuation of any said works by the mining company on the project.”
“CEMCO, after their investigations, reported that CB&R Mining does not qualify to even be considered as a bidder and that the contract should not have been awarded to them.”
According to the findings of CEMCO, the mining company did not provide twelve of the requirements as specified by the Procurement Act, hence BK has taken to the high court to seek justice.

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