MUNICIPAL corporations are required to procure garbage collection services through the Central Tenders Board (CTB), the Appeal Court has held.
The court allowed the appeal of four garbage collection contracts who took legal action against 14 municipal corporations, the Ministry of Rural Development and Local Government and the Solid Waste Management Company (SWMCOL).
In setting aside the judge’s finding that Government, through a state-owned limited-liability company, was lawfully permitted to manage the procurement process for garbage collection, Chief Justice Ivor Archie said the 14 corporations could not lawfully delegate the process of procurement in areas under their control.
He also quashed the decision to embark on or continue the procurement process.
In October 2019, Justice Joan Charles had ruled against the four garbage collection contractors – BK Holdings Ltd, Central Equipment Rentals Ltd, Bartholomew Transport Company Ltd, and Waste Disposals (2003) Ltd – which complained about the procurement process.
In her decision, she also pointed out that in 2017, Government determined there must be a holistic approach to the award of contracts to ensure equity, expand economic activity, encourage small and medium business development and guarantee a high level of service and customer satisfaction.
In 2010, the ministry appointed SWMCOL to procure garbage collection services for the 14 corporations for 2010-2013. All four contractors took part in the process.
On July 5, 2012, SWMCOL implemented another procurement process for garbage collection services for all municipal corporations.
The contractors, who were represented by attorneys Fyard Hosein, SC, Rishi Dass and Anil Maraj argued that the corporations could not authorise the ministry or SWMCOL to invite tenders for garbage collection services.
They also contended that the implementation of Government’s policy of reserving certain categories of work for small and medium contractors was manifestly unfair and unlawful.
In a written ruling, the Appeal Court, which comprised the Chief Justice and Justices Nolan Bereaux and Mira Dean-Armorer, ordered that the establishment and continuation of the purported procurement process by SWMCOL, on behalf of the ministry, for garbage collection services for the corporations was unlawful.
Archie, who delivered the judgment, also held that corporations were required to procure garbage collection services through the CTB.
He also declared that the municipal corporations were not lawfully entitled to invite or authorise either the ministry or SWMCOL to invite offers for the supply of services.
He said, in the absence of any evidence of irrationality or arbitrariness, he would be “hard-pressed” to find any basis to intervene apart from the fact that the “necessary involvement of the CTB is being circumvented in this case.”
He said the CTB must have been involved at the stage of invitation of tenders.
“Since it is the board (subject to policy direction) that must decide who is invited to tender, the pre-qualification process cannot, in ordinary circumstances, be divested to any other entity.
“For the avoidance of doubt, I therefore find that the process of procurement begins with pre-qualification and ends with the evaluation of tenders and award of contracts,” Archie held.
“In my view, it is unlawful for the corporations to procure the services of SWMCOL for the pre-qualification exercise as it is inseparable from the rest of the procurement process. However, a pre-qualification process that gives effect to Cabinet’s intention is not, per se, unlawful,” Archie ruled.
Charles had found that contractors’ applications did not have a sufficient public law element or realistic prospect of success. She also found that the process was a commercial and contractual matter.
However, Archie said judicial review was an appropriate remedy in this case because there was no authority to conduct the tender process without reference to the requirements of the CTB Act and the involvement of the CTB.
“The process of procurement begins with pre-qualification and ends with the evaluation of tenders and award of contracts
“There is nothing wrong in law with a pre qualification process that reserves portions of the available work for specified categories of contractors, particularly if the objective is to provide opportunities for a broader range of applicants and the means employed are not patently irrational or unfair,” Archie said.
He also said no one could argue that the State was not entitled to provide income support in an effort to “level the playing field” or was there anything unreasonable about a policy that seeks to avoid “monopolistic control” over any particular area of economic activity, “provided that the means employed area reasonably justifiable and do not entirely exclude any competent players.”
In October, Attorney General Faris Al-Rawi, in commenting on the ruling, at the time said the court’s ruling upheld the Government’s policy to “protect the rights of small and medium contractors to participate in the process of tendering for and obtaining garbage collection contracts, in keeping with the local government reform ideals.”
He said the procurement process was designed to ensure that there exists a level playing field among small, medium and large contractors in bidding for and obtaining garbage collection contracts.
The corporations, the ministry and SWMCOL were represented by Gilbert Peterson, SC, Kerwyn Garcia and Vishma Jaisingh.