Senior Reporter
elizabeth.gonzales@guardian.co.tt
The Office of Procurement Regulation (OPR) has revealed it never ruled on allegations that the Housing Development Corporation (HDC) breached procurement law during its controversial $3.4 billion Design-Build-Finance housing programme because the legal challenge was filed outside the deadline set by law.
The written reasons, released after HDC cancelled the procurement, explain why NH International (Caribbean) Ltd’s challenge failed. However, they do not determine whether HDC complied with the Public Procurement and Disposal of Public Property Act or whether the company’s allegations were valid.
The procurement involved the proposed award of 11 Design-Build-Finance contracts, each valued at more than $100 million.
The matter unfolded through two separate processes.
On April 14, the OPR directed HDC to suspend the procurement while it carried out its own inquiry into the procurement proceedings. The regulator said it had initiated a comprehensive review of the procurement records to determine compliance with the Procurement Act, its regulations, handbooks and guidelines. It said it would make no further comment while the inquiry was ongoing. Guardian Media’s attempts to get an update on this investigation were unsuccessful as messages, calls and an email to OPR went unanswered.
Separately, NH International filed 11 challenge proceedings before the OPR on April 21 after HDC issued its Notice of Decision to Award dated April 8.
In those applications, NH International alleged HDC should have used open bidding instead of limited bidding, failed to advertise the contracts nationally, failed to disclose the pre-qualification requirements, excluded the company using undisclosed or arbitrary criteria, failed to inform it of the outcome of its pre-qualification application and breached the principles of transparency, fairness, accountability and value for money under the Procurement Act.
The Hearing Panel dismissed NH’s applications on April 24.
HDC later cancelled the procurement exercise, saying it was in the public interest to discontinue the process after the evaluation had been completed and the standstill period had expired. It also confirmed that no contracts had been entered into and no Notice of Acceptance would be issued.
OPR’s written reasons, published on May 14, explain that the hearing panel first had to decide whether it had jurisdiction to hear the challenge.
After examining every ground raised by NH International, it concluded the complaints related to decisions taken during the pre-qualification stage rather than the Notice of Decision to Award.
“The application consequently had to be filed in accordance with the timeline set out in section 50(2)(a) of the Act. The application, having been filed after the deadline for bid submissions, was filed outside of the time period to permit a review of the stated grounds and must be dismissed in accordance with Regulation 4(b) of the Challenge Proceedings Regulations,” the panel ruled.
The panel said the office only has jurisdiction to hear applications filed within the deadlines set by Parliament.
“The statutory timeline for filing challenge proceedings is not impacted by the perceived merits of the grounds for review under consideration. A supplier or contractor who wishes to avail themselves of the challenge proceedings redress mechanism must comply with the statutory requirements that permit such a review.”
The panel said allowing suppliers to wait until contracts are awarded before challenging earlier stages of a procurement process could create “massive inefficiencies and wastage of resources for both procuring entities and suppliers and contractors alike.” It also quoted a Canadian Court of Appeal decision stating: “In procurement matters, time is of the essence. It is for the bidders and potential suppliers to exercise caution, to remain vigilant throughout the procurement process and to react promptly to any perceived flaws in the process.”
Because the applications were dismissed as being out of time, the panel said it never considered whether HDC breached procurement law.
“Having determined that these challenge proceedings are untimely based on the grounds for review, the Hearing Panel did not proceed to determine the application’s compliance with Regulation 4(c) and/or Regulation 8 of the Challenge Proceedings Regulations.”
The panel also observed that the pre-qualification exercise involved Construction Company Ltd, a subsidiary of HDC, but the application failed to establish the legal connection between the two entities.
It further noted that NH International did not submit a bid for the procurement under review and that the invitation related to general pre-qualification rather than the specific procurement. However, it made no findings on those issues because the challenge was made outside the deadline set by the law.
Although NH International’s challenge has ended, the panel said alleged breaches of procurement law may still be examined through another process.
“While the Hearing Panel recognises that challenge proceedings are constrained by the prescribed timelines and limited to the grounds of review, the legislative framework, however, provides alternative avenues of redress, such that any suspected breach of the Act and/or Regulations may still be investigated by the Office, either on its own initiative or pursuant to a complaint made under section 41(1) of the Act.”
Up to publication, the OPR had not publicly announced the outcome of its separate inquiry into the procurement proceedings.
