Government was advised to tell former senator James Armstrong that the tendering process involved in Invader’s Bay conformed to the Central Tenders Board Act, when in reality it did not. This recommendation formed part of the advice given to the Attorney General by his legal advisor, Joan Furlonge, in an opinion submitted on February 13, 2012, on the concerns raised about the procurement procedure in the billion-dollar Invader’s Bay development project.
Furlonge stated that the Ministry contravened the provisions of the Central Tenders Board Act.
Nevertheless, in her advice, Furlonge recommended that Planning Minister Dr Bhoe Tewarie, in answering a question filed by then senator James Armstrong to be answered in the Senate, should state that the Request for Proposals (RFP) by the Ministry did conform to the Central Tenders Board (CTB) Act.
“A simple answer to Dr Armstrong’s question on whether the RFP conforms to the Central Tenders Board Act is that it does.
“In reality, the entire tender process was not brought under the CTB Act and the matrix and criteria were forwarded to the tenderers AFTER they submitted their initial proposals to the Ministry of Planning and Economy,” Furlonge stated.
At the Senate sitting on February 28, 2012, Tewarie responded to Armstrong’s question as follows: “The publication of the Request for Proposals was not the subject of, nor required to be in conformity with the Central Tenders Board Act. Advice to this effect was received from the Legal Unit of the Ministry of Planning and Economy, and subsequently from the Ministry of the Attorney General.”
The issue of the legal advice provided to the Government on the Invaders Bay project is the subject of a long-running legal battle between the Ministry of Planning and the Joint Consultative Council (JCC) for the construction industry, which sought to obtain the advice under the Freedom of Information Act.
The court ruled on July 14 that the Ministry should make the information available, but Government has appealed this decision.
Furlonge, in analysing the Ministry’s procurement procedures, noted that “in an attempt to resolve the issues identified, it is emphasised that the legal advice would be that the court could rule ‘either way’ on these issues.”
Furthermore, she stated, “having considered the legality of the tender process adopted, it is submitted that the final decision is a policy decision to be made and weighed against the risk and widespread public scrutiny involved”. “On the issue of whether the tendering/procurement process adopted by the Ministry of Planning and Development is an invitation, consideration, acceptance or rejection of offers for the undertaking of works or services...within the remit of the CTB, this is an ‘either-way’ situation. The possible argument to support the circumvention of the CTB offered (i.e. that it does not involve public funding)...is a tenuous one and it may well be that it is unlawful pursuant” to the Act.
Furlonge, however, adds: “In an attempt to rationalise the process at this stage it may be possible to argue that since the Ministry of Planning and Development’s tender process did not anticipate expenditure on procurement of services, it was premature to enlist the services of the CTB earlier”.
On the issue of whether the tendering/procurement process adopted by the Ministry of Planning and Development was to dispose of real property owned by the Government, Furlonge submitted that the Government proposed to retain title of the lands and grant leases to developers with a reversion of title to the State at the end of the respective leases.
On the issue of whether the tendering/procurement process adopted by the Ministry fell under the exception offered by the CTB Act (i.e. where the Government enters into a contract with Nipdec or a wholly state-owned company), Furlonge said this section could not be used to justify the Ministry’s actions since it “seeks private investors and not contractors of a solely-owned State company to develop Invaders Bay. Further, the Ministry of Planning and Development has already selected three proposed developers out of a pool of ten applicants, without the input of UDeCOTT”.
On the issue of whether the entire tender/procurement process adopted by the Ministry was “fundamentally flawed and should be terminated and the entire process initiated in compliance with the legal requirements”, it is submitted that this decision is a policy decision which must be made by the Minister, Furlonge stated.
“The fact that the Ministry of Planning has already selected three developers from the pool of ten poses a problem if a decision is made at this stage to bring the process under Section 20 of the CTB Act or to rationalise the process by bringing it under Section 4 of the CTB Act (i.e. place the project under state-owned UDeCOTT),” she continued.
“The public scrutiny of the tender process revolving around the Invaders Bay development project, the possible political fall-out, the value of the project and the financial risks involved, together with its legality and the price to pay for a flawed decision, must all be considered,” Furlonge concluded. Advice was provided to the Attorney General by Fenton Ramsahoye SC, stating that the Ministry of Planning and Development did not breach the Central Tenders Board Act.
(The first part of this article appeared in yesterday’s Sunday Express)