The Akamai complaint to the Procurement Commission

The good news is that the Public Procurement Commission (PPC) has finally issued a decision on a complaint before it, almost 18 months after it was constituted. The bad news is that it does not seem to understand its vast powers and has shed no light on what is a possibly corrupt system which can further tarnish this country’s already unwelcome image where it pertains to graft in public procurement.

On December 29th the PPC rejected the complaint by Akamai Inc - in the form of an Application for an Administrative Review - over a contract award, relying solely on belated and insufficient information supplied to the Commission by the National Procurement and Tender Administration Board (NPTAB).

The Office of the Prime Minister issued an invitation for bids for line hardware in March 2023 with the bid opening slated for April 2023. Five bids were submitted and the lowest was presented by Akamai Inc which happens to be the sole distributor of the requested items.

The evaluation committee of the NPTAB ruled that Akamai’s bid was unresponsive on two grounds: it did not demonstrate experience by providing documentary evidence that showed similar goods were provided in at least one contract in the last two years to a minimum value of GYD $5,000,000;

It did not provide a letter stating that it had no terminated projects. The letter had to be dated within one month of the bid opening date.

Akamai has argued that in relation to the first ground no format was specified and it provided a spreadsheet with all of its prior projects. It insists that in relation to the second ground that it did provide a document stating that it did not have a terminated project.

Instead of delving into the details of the complaint, the PPC took the NPTAB at its word and made no attempt to determine what had actually been submitted by Akamai and indeed by the other four bidders to determine whether they had been compliant with the bidding requirements.

There should be no mincing of words here. A compromised evaluation committee of the NPTAB can easily duck documents and pick a favoured bidder in return for consideration. When a complaint is lodged how can the PPC determine that? This current PPC has thrown

its hands up in the air and is suggesting that the tenderer could seek recourse to the courts. If that is how it works then the PPC is wasting the public’s time and money and should be dissolved. Among other things the Commission is intended to investigate complaints to their finality not to pass the buck.

That is exactly what it has done. In a summary of its findings, the PPC said: “The commission is cognizant that a record may not be accurate for a number of reasons, such as but not limited to, negligence on the part of the tenderer and or procuring entity, innocent but mistaken belief of submission and the misplacement of documents (intentional or unintentional). The forum for settlement of such conflicts, should they arise, would be the court. Unlike other enquiry bodies, the PPC is not vested at this time with the requisite enabling legislative framework to subpoena witnesses, administer oaths and or examine witnesses so as to arrive at a determination as a fact as to an act or omission relating to the record and where such responsibility lies”.

If the PPC - with full-time commissioners - truly believes that it is not accoutred with the requisite enabling legislative framework then it should have immediately drawn this to the attention of the National Assembly and the required legislative changes made as only a simple majority is required for this. Otherwise, complainants should simply be advised to ignore the PPC and move to the court, further clogging up the system in this very litigious society.

However, the PPC is sufficiently endowed by the constitution of Guyana to discharge its investigative role and no ordinary legislation can deny or diminish that. The PPC must now have an urgent meeting on this matter.

Article 212W accords wide latitude to the PPC. 212W (1) says: There shall be a Public Procurement Commission the purpose of which is to monitor public procurement and the procedure therefor in order to ensure that the procurement of goods, services and execution of works are conducted in a fair, equitable, transparent, competitive and cost effective manner according to law and such policy guidelines as may be determined by the National Assembly.”

Article 212AA (1) (h) says its mandate is to investigate complaints from suppliers, contractors and public entities and propose remedial action;

(i ) investigate cases of irregularity and mismanagement, and propose remedial action;

(j) initiate investigations to facilitate the effective functioning of public procurement systems;

(k) enlist the aid of such persons, as may be necessary, to assist the Commission with expert advice;

(l) liaise with and refer matters to the police and the Auditor General; and

(m) do all other acts and things as may be necessary to facilitate the efficient discharge of the functions of the Commission.

It gets even better. Article 212DD (1) says: The Commission may require any person, or any entity, including a ministry or government department to provide it with information (a) for the purpose of any investigation it is carrying out or proposes to carry out; and

(b) on the measures that have been or are being taken for the implementation of the decisions of, or the compliance with any provision relating to, the Commission.

No legal opinion or law can detract from such powers. The PPC is either reluctant to do its duty or it is unaware of its powers. It would be interesting to see which government official or agency would be bold enough to- as they so far have been - be recalcitrant in the face of this authority.

The PPC’s refusal to properly investigate the Akamai complaint is a travesty. One now waits to see what excuse it will devise in relation to the award of a pump station contract to the firm Tepui, a principal of which has preferred access to Vice President Jagdeo.

It is also worthy of note that the the Hinterland Electrification Company Inc (HECI) that comes under the Office of the Prime Minister refused to co-operate with the time-bound request by the PPC for information. Prime Minister Phillips must provide an explanation to the public for this refusal to co-operate.

HECI had been asked to submit within five days:

1. a copy of the Record of the tender proceedings including the Evaluation Report and all other such relevant documents,

11. whether the contract therefor has been entered into, and if so, a copy thereof and

111. whether the procuring entity complied with S. 39(3) of the Procurement Act, Cap. 73:05 by considering …the Evaluation Report for the subject tender and thereby indicated their agreement or disagreement therewith, prior to the contract award.

Billions of dollars are at risk of corruption in the public procurement system. Both the PPC and the government must be prepared to discharge their duties to ensure fairness and to prevent corrupt enrichment. The Akamai probe represents a comprehensive failure.