The ruling of the Independent Review Panel on the allocation of a contract by the Wastewater Management Authority has been in the press last week.
As a refresher, Rapid Security Services Ltd (‘RSS’) has successfully questioned the decision of the Wastewater Management Authority (‘WMA’) in allocating a contract of Rs 21.2 million to RSL Security Services Ltd (‘RSL’). In a ruling made public on the 7th July 2021, the Independent Review Panel (‘IRP’) recommended a re-evaluation of the bids pertaining to the procurement of security services.
On 4th January 2021, the WMA launched tenders for the procurement of security services at their sites for a period of two years. There were five bidders, among which were RSS and RSL with bids of Rs 30.9 million and Rs 21.2 million, respectively. Following the report of the Bid Evaluation Committee (‘BEC’) WMA selected RSL as the successful bidder.
RSS challenged the decision to allocate the contract to RSL on the ground that the latter has not included the payment of salary of its employees and would, thus, fail to adhere to the Workers’ Rights Act. RSS further added that their bid, though higher, has considered the payment of salary of their employees. The matter was heard by the IRP on 18th June 2021.
Pertaining to the adherence of RSL to the Workers’ Right Act, the IRP has stated that the application of RSS was founded. The proposition of RSL could be categorized as being abnormally low while considering the minimum wages and salaries that must be paid to the staffs. The cost estimate of this project has been Rs 30 million excluding VAT and RSL’s bid was 29% lower. Given the abnormally low bid, BEC should have followed specific guidelines as per Directive no.52 issued by the Procurement Policy Office for the selection of the bidder.
It should be highlighted that WMA was unable to provide a break-down of the costs that would amount to a total of Rs 30 million. In addition, after further queries, the IRP was unable to determine how the salaries would have been paid.
The IRP concluded that it “has no alternative but to make a recommendation of a re-evaluation of the bids and such re-evaluation be carried out by a newly constituted Bid Evaluation Committee.”
DID YOU KNOW ?
Following the decision of the Independent Review Panel on 7th July 2021, it would be interesting to find out more about this Review Panel, known as the ‘Independent Review Panel’. Its presence in Mauritius ensures that suppliers and contractors may ask for a re-evaluation or inclusion of their bids if they feel that the evaluation process has not treated their application with the required consideration. In addition, the findings of the Independent Review Panel would shed light on the rejection and selection process of the Public Bodies following their evaluation of the several bids.
The Independent Review Panel
Established under the Public Procurement Act (‘PPA’), the Independent Review Panel (‘IRP’) is comprised of a Chairperson, a Vice-Chairperson and 4 other persons who are experienced in legal, administrative, economic, financial, engineering, scientific or technical matters. The IRP’s members are appointed by the President of the Republic as per the advice of the Prime Minister following consultation with the Leader of the Opposition. It should be noted that “every member shall hold office for a period not exceeding 3 years and shall be eligible for reappointment for one further term.”
The IRP aims at looking into requests made by unsatisfied bidders to review procurement proceedings in specific cases.
In the IRP’s ruling regarding the allocation of a contract of Rs 24,4 million for the supply of tractors to UMCL by the Mauritius Cane Industry Authority (‘MCIA’), it was asked that MCIA reimburses the costs incurred for this dispute to Scomat Ltd, one of the bidders who referred this case to the IRP. During their investigation, one of the members of the Bid Evaluation Committee (‘BEC’) has mentioned that they had gone by a ‘tick the box’ approach to the evaluation of the offers and have not verified the provided information. In fact, it was stated that the information would be cross-checked only in case of doubts. As such, the IRP’s findings were that the members of the BEC had failed in their duties under the Public Procurement Act and thus, the evaluation exercise was flawed.
As illustrated by this ruling, the IRP is here to uphold and maintain confidence of suppliers, contractors and public as well as ensures and enables transparency and good governance in the public procurement process. It can hear and determine appeals against procurement decisions made by a Public Body.
However, there are certain limitations to the IRP, namely its restriction for the remedies it can offer. In fact, the decisions of the IRP are non-binding in nature, and they would usually take the form of recommendations.
This limitation was observed when the Wastewater Management Authority (‘WMA’) bypassed the ruling of the IRP concerning the allocation of a contract for the extension of the sewer system and maintenance for a period of one year in 2017. One of the bidders, Safety Construction Co Ltd (‘Safety Construction’) had been rejected during the evaluation exercise, while the other four firms had been retained. Safety Construction has then referred the case to the IRP to be amongst the retained bidders for this exercise given that it has submitted all the required documentation. WMA had stated that they rejected the offer of Safety Construction as it was not registered with the Construction Industry Development Board. As per IRP’s findings, rejecting the offer of Safety Construction on this ground was illegal. WMA should have taken into consideration the change in the existing laws which stipulated that a bidder need not be specialized in the field it was bidding for. However, WMA has issued a ‘Certificate of Public Interest’ which allows the contract to be awarded even if there were deficiencies in the bidding documents. Thus, WMA did not act upon the ruling of the IRP.
Therefore, given that the IRP has an important role to play in ensuring that the allocation of contracts is done in a fair and transparent way while making sure that the bidders are given equal and unbiased consideration during the evaluation exercise, it would be highly recommended that the IRP’s decisions are given legal enforceability.
