GGMC’s decision to award Aremu Road Rehabilitation Contract to Chunilall Baboolall was unlawful—CCJ rules

Dec 30, 2021 News

Kaieteur News – The Caribbean Court of Justice (CCJ) has ruled that a decision of the Guyana Geology and Mines Commission (GGMC) to award the Aremu road rehabilitation contract to Guyanese gold miner, Chunilall Baboolall was unlawful.

Guyanese gold miner, Chunilall Baboolall.

On June 4, 2021, the CCJ had dismissed an appeal against a decision of the Court of Appeal of Guyana in the consolidated matter of Guyana Geology and Mines Commission v BK International and Chunilall Baboolall; and Chunilall Baboolall v BK International and Guyana Geology and Mines Commission [2021] CCJ 13 AJ (GY). On that date, the Court indicated that it would give the reasons for that dismissal at a later date. Yesterday, the Court issued those reasons.
According to a summary of the decision released via the CCJ website the case stems from a move by the Guyana Geology and Mines Commission (“GGMC”) around June 2013, to invite bids through a public advertisement for the rehabilitation of the Aremu Road in Region 7.
The release noted that back then, an advertisement stated that bidding would be conducted according to the Procurement Act Cap 73:05. GGMC shortlisted four “prequalified” entities to submit bids but only three responded to the invitation: Baboolall’s CB&R Mining (“CB&R”); MMC Inc; and BK International Inc (“BK”). BK submitted the lowest bid and CB&R’s bid lacked certain important documentation.
Nevertheless, GGMC contracted Baboolall, on behalf of CB&R, to execute the road rehabilitation works. BK was dissatisfied with the GGMC’s decision and initiated an action in the High Court to invalidate that decision. At the High Court, GGMC argued that it was not a “procuring entity”, as defined in the Procurement Act Cap 73:05 and was therefore not required to follow the procurement procedures in the Act.
The statutory definition of a procuring entity included Government agencies, but GGMC argued that it was a private body in law. The High Court rejected that argument, holding that GGMC was a public agency under the Ministry of Natural Resources and the Environment. GGMC and Baboolall appealed this decision to the Court of Appeal but that Court agreed with the High Court and dismissed the appeal.
GGMC and Baboolall subsequently appealed to the CCJ, which identified three issues for determination: (1) was the GGMC a “procuring entity” under the Procurement Act? (2) was judicial review available to challenge GGMC’s decision to award the contract to Baboolall?; and (3) did GGMC comply with the Procurement Act?
Mr. Justice Adrian Saunders, CCJ President; Justice Jacob Wit, Justice Winston Anderson, Mr. Justice Denys Barrow, and Justice Peter Jamadar comprised the bench from the CCJ.
Justice Anderson, who delivered the judgment of the Court, indicated that the GGMC was a government agency because of three main factors: (1) the public nature of its functions; (2) the extensive ministerial control exercisable over it; and (3) the sources of its funding included inflows from the Government.
As an agency of the Government, GGMC fell under the definition of a procuring entity in the Procurement Act and, therefore, had an obligation to conduct bidding according to that Act. Anderson J CCJ, also found that judicial review was available to BK because GGMC was conducting a public function; that is, a road rehabilitation project, where the funding came from the Government.
Further, Justice Anderson considered that BK had a legitimate expectation that GGMC would comply with the Procurement Act. The judge then determined that there were several instances where the GGMC had not adhered to the Procurement Act. For example, the rejection of BK’s bid was not done in accordance with the Procurement Act. Additionally, there was no proof of how CB&R, or any of the bidders for that matter, were “pre-qualified”.
Justice Jacob Wit, in a concurring opinion, added that judicial review in a constitutional democracy like Guyana must be brought under the umbrella of constitutional values and principles. Doing this broadens the scope of judicial review. Justice Peter Jamadar underscored that in countries with written constitutions, courts must ensure that administrative decisions accord with fundamental constitutional and human rights values and principles.
During the case Attorneys Nikhil Ramkarran and Rebecca Khan appeared for the GGMC; Edward Luckhoo SC and Robin Stoby SC appeared for BK International Inc. and Chandrapratesh Satram, Roopnarine Satram, and Ron Motilall appeared for Baboolall.