Award of the Bid Protest Committee in the Bid Protest of Bid “Supply and Delivery of Boxed Juice – National Distribution” (FS: NPTAB: 1229/2016/40) By Tropical Orchard Products Company Limited Against the Ministry of Education (The Procuring Entity)
Reasons for Review On the 23rd September, 2016 the Complainant- Tropical Orchard Products Company Limited (TOPCO) requested a review of the award of the contract for the Supply and Delivery of Boxed Juice-National Distribution. The Complainant‟s reasons for review are –
- The Procuring Entity failed, refused and/or neglected to consider only such evaluation criteria as set forth in the solicitation and tender documents contrary to sections 5 (3), 39 (2) and 39 (4) (c) of the Procurement Act, Cap 73:05.
- The non-disclosure of past performance as an evaluation criterion in the solicitation documents prevents and precludes the Procuring Entity from belatedly relying on such criterion in the evaluation and determination of the bid.
Summary of Facts
This claim concerns the Ministry of Education project-Supply and Delivery of Boxed Juice National Distribution Programme. The Ministry of Education procured boxed juice for national distribution to children in nursery and primary schools (grades 1 and 2). The invitation for bids for the procurement of boxed juice was done using the restricted tendering method with the bidding documents prepared by the Ministry of Education given to six bidders. The six bidders were (1) Caribbean International Distribution Inc, (2) Guyana Beverage Inc., (3) Banks D.I.H. Holdings, (4) Tropical Orchard Products Company Ltd (TOPCO), (5) Ansa McAl Trading Ltd and (6) Continental Foods Inc.
Four bids were received from (1) TOPCO (G$506,688,000), (2) Ansa McAl (G$628,992, 000), (3) Guyana Beverages Inc. (G$542,360,000) and (4) Caribbean International Distributors Inc. (G$545,272,000). These bids were evaluated against administrative criteria by an Evaluation Committee comprising Ms. Delma Nedd – Permanent Secretary, Ministry of Education, Mr. Roland Barclay – Chief Electrical Inspector, Ministry of Public Infrastructure and Mrs. Jolene Brown-Griffith – Assistant Secretary General, Ministry of Public Telecommunications.
All bidders satisfied the administrative criteria, however, the Complainant was deemed non-responsive because the Procuring Entity had experienced numerous problems with the Complainant, namely, expiration dates and spoilages. As a result of being considered non-responsive the Complainant‟s bid was not further evaluated.
By letter dated 7th September, 2016 the Complainant was informed by the Procuring Entity that it was unsuccessful in its bid. On the 16th September, 2016, Mr. Komal Samaroo, Chairman of TOPCO wrote to the Procuring Entity seeking a review of the decision to render its bid unsuccessful and requested that its bid be evaluated or re-evaluated in accordance with the criteria set out in the Bid Documents. The Procuring Entity failed to respond and the Complainant lodged a protest with the Bid Protest Committee (the Committee) on the 23rd September, 2016. By letter, the Procuring Entity responded to the Complainant‟s reasons for review, stating that the law makes provision for them to evaluate the Complainant on the criterion of past performance. The Procuring Entity also stated that despite knowing of the „past performance‟ of the Complainant, because the method of procurement was restricted tendering, it felt compelled to invite the Complainant to bid.
On the 29th November, 2016, the Committee held a hearing into the matter. At the hearing the Complainant represented by Ms. Allison Thorne, Company Secretary, maintained its reasons for review relying on sections 5 (3), 39 (2) and 39 (4) (c) of the Procurement Act, Cap 73:05 and the principles expounded in Canadian cases of Elan Construction v South Fish Creek Recreational Association  ABQB 330 and Lion Apparel System Ltd v Firebuy Ltd  EWHC 2179 (Ch).