The construction company that, last year, appealed the award of a contract, resulting in the Caribbean Development Bank (CDB) withdrawing financing for a project, is once again accusing the government of St. Vincent and the Grenadines of unfairness in its handling of bids.
The company, Bally and Bally Investments Ltd., raised the issue at a press conference in Kingstown on Monday, saying that its tender for the “Coastal Defence Works: San Souci” was rejected, allegedly for missing a signature, while the winning tenderer was allowed to make substantive amendments to its bids before being awarded the contract.
Bally and Bally is arguing that their alleged omission goes to form, while the reported omission by the winning tenderer — the joint venture of Kelectric Company Limited and Belvedere Place Development — affects the substance of their bid and should have also disqualified them.
They say that in the alternative, both companies should have been allowed to make the requisite adjustments to their documents.
Cameron Balcombe, managing director of Bally and Bally, therefore, wrote, on Jan. 24, 2020 to Ricardo Frederick, director of Economic Planning, objecting to the award of the contract.
At the press conference on Monday, Balcombe and his wife, Ronnia Durham-Balcombe, a director of the company, presented their case to the media, even as they noted that a press conference is not one of the redress mechanisms contemplated by the tender document or the Public Procurement Act 2018.
“… neither is it prohibited,” Durham-Balcombe said, adding, “but it is a serious concern that should not be hidden from the public by hushed procedures.”
The document, which was allegedly unsigned and resulted in the rejection of the bid, is the bid security — a statement from the bidder’s bank, or insurance company or other approved institution providing a monetary guarantee to the client that it will not withdraw its bid before the end of the stipulated bid validity period or to safeguard against their refusal to sign the contract if selected.
The client — in this case, the Government of SVG — will have the right to keep the bid security amount if the bidder withdraws their bid or refuses to sign the contract, if awarded.
The template for the bid security is
provided in the tender documents and the bidder’s guarantor completes it on
their letterhead for the required amount and bid validity period and signs.
There is also an area for the bidder to co-sign on the said bid security
document, and it is submitted as part of the bid.
Durham-Balcombe said:
“It is this purported omission to co-sign which caused the evaluators to reject our bid. It is a given that neither party can be bound by the terms of an unsigned document. However, the absence of one of two signatures on an otherwise compliant document is a matter of form not substance.
“Substance speaks to content — correct amount, correct validity period, correct wording — while form speaks to signature, sealing. Although all other documents in our bid were signed, the evaluators thought the purported defect to be substantial enough to eliminate Bally and Bally-Earlcoat joint venture”.
World Bank looking into complaint
Balcombe told the media that his company has complained to the World Bank — which is funding the project — and has been assigned a case number, indicating that their complaint is being looked into.
He told the media that he believes that his company is being punished for complaining to the CDB last year about the award of the Yarabaqua project, which resulting in the bank withdrawing funding and ordering the Unity Labour Party government to repay the monies used.
“However, we refuse to play dead, be bullied or be silenced by the powers that may be or their agents; not then, not now, not ever,” he said.
The businessman explained that on Nov. 11, 2019, Bally and Bally Investment Ltd. –Earlcoat Construction and Plant Hire Ltd., a joint venture, submitted a tender for the Coastal Defense Works — San Souci project.
Bids were submitted by five other companies for the same project and were opened on the same date.
The bids range from EC$8.183 million (by Bally and Bally) to EC$13.263 million, with the winning bid being EC$8.452 million.
Balcombe said his company received an email on Jan. 23, 2020, indicating that its bid was unsuccessful, as the company had submitted an unsigned bid security.
He said that the company was informed by letter that this alleged unsigned document “was deemed to be a material omission pursuant to clause 29.2 (a) (ii) of the Instructions to Bidders. Specifically it was determined to be an omission that if accepted would limit in a substantial way inconsistent with the bidding document, the employer’s rights or the Bidder’s obligations under the proposed contract … Failure of the Principal to sign the Bid Bond eliminates its enforceability by the Employer, thus the Bid was rejected’.”
Balcombe commented:
“Our bid was eliminated for want of a signature, nothing more.”
He, however, maintained that his company did not submit an unsigned bid security but offered no explanation about how one might have come to be allegedly included in the bid.
Balcombe said that his company did “not wish to speculate on why such was included in our tender”.
He, however, said he recalled that the insurance company signed and sealed the document and he also signed on behalf of his joint venture.
“We have to pay for these bonds and include them with the tender,” Balcombe said.
He said that during an “an ad hoc debriefing — a meeting just sprung on me as I was in the Financial Complex building — I was shown a bid bond for the said project signed and sealed by the insurance but not signed by me.
“The bid bond was otherwise complete,
but for my signature and that was the end of my competitive tender of
$8,183,054.35, VAT inclusive,” Balcombe said.
‘How could that be fair?’
“But, people, God does not sleep. It came to my attention that in December 2019, the bidder who was selected for the project for $8,515,232.88, VAT inclusive, had multiple omissions relating to its financial situation and performance, and its experiences, sufficient to have fallen short of the requirements of the bid responsiveness, thus making it non-compliant according to the Instructions to Bidders and should not have been given consideration.
“Nevertheless, that bidder was given the opportunity to basically re-do its bid to provide the required information and thus become compliant. Now, for want of a signature, my bid was eliminated and no opportunity given to me to include it on that single document, yet the tenderer asking for more money to do the project had more problems and was given the advantage to get their documents in order. How could that be fair?” Balcombe said.
‘deferred for clarification’
He distributed to the media a Dec. 6, 2019 document purportedly signed by the secretary of the Central Tenders Board and sent to Director of Planning noting the request that the award of the contact to Kelectric Company Limited and Belvedere Place Development.
The letter said that the matter was deferred for clarification with respect to the compliance required in the areas of financial situation and performance, general construction experience, and specific construction and contract management.
The document said that all members of the joint venture must meet the financial situation and performance requirement, noting that information was only provided for Belvedere.
“What is the combined financial position?” the letter asked.
The Secretary of the Central Supplies Tenders Board also asked the Director of Planning to specify which company of the joint venture experienced negative cash flow in 2018 and to indicate the dollar value of the cash resources of the joint venture companies.
Another request was for an indication of the years of the latest financial statements for both companies.
The document also pointed out that all members of the joint venture must have at least five years’ construction experience, adding that information was only provided for Belvedere.
The communiqué further pointed out that members of the joint venture must have at least one contract of a minimum value of EC$4.5 million. However, only Belvedere was mentioned, the letter pointed out, and asked for the relevant information for Kelectric Co. Ltd.
It further noted that all members must have a minimum construction experience in excavation and backfilling of 7,000m3 of material and 1,500m3 of reinforced concrete work.
Belvedere met this requirement, the letter said, and asked that the relevant information for Kelectric be provided.
‘Clarification’ v permitting additional information
Meanwhile, Durham-Balcombe told the media that it is mandatory for the bidder to provide the required information concerning its financials, experience and other requested information to comply with the evaluation and qualification criteria.
The bidder must also provide the bid security in the amount and for the period of validity in the form provided, she further noted.
She said that the other bidder “clearly omitted to provide mandatory/material information required in the bidding document and this material non-conformity made their bid unresponsive.
“The evaluators should know that asking and allowing the other bidder to provide the material information after the fact is not an issue of clarification, for, according to instruction 27, no change in the substance of the bid shall be sought, offered or permitted, unless it is an arithmetical correction discovered during the evaluation.”
To illustrate, she said that clarification is, for instance, where bidder has two different years for the same experience and, is therefore, asked to clarify which year is the correct year.
“Clarification is not, as in this case, permitting the bidder to include the information they previously omitted to enable compliance,” she said.
“The same instruction 29 which they sought to disqualify us under also applies to the awarded bidder. The instruction 29.4 provides ‘if a bid is not substantially responsive to the requirements of the bidding document, it shall be rejected by the Employer and may not subsequently be made responsive by correction of the material (in this case) omission’,” Durham Balcombe said.
“Their bid should also have been rejected,” she maintained.
Durham-Balcombe continued:
“The issue of fairness and equitable treatment has been raised in our grievance and it is not hard to see why. So glaring were the omissions of the bidder deemed successful, yet they were permitted to include the additional information. Why wasn’t Bally and Bally also given a second chance? Why wasn’t Bally & Bally permitted to affix a signature to a single document? Was it punishment for speaking up and out?”
She said the issue is a matter of public interest as the procurement process affects how the government spends public money.
‘a disease that pervades our society’
Meanwhile, Balcombe said his company invests time, money and expend other resources to train its staff to become proficient.
“These works create opportunities for our company and employment for persons, whether temporary or permanent, who wish to put their minds, bodies and skills to work, rather than to be temporarily appeased by poor relief or linger in the hardship of unemployment.”
Balcombe said that while people who do not encounter the procurement process in their daily living may wish to ignore his company’s grievances, they should pay attention “because there is a disease that pervades our society.
“A disease that exploits the system, is weakening our morale, is causing financial undulation to the deserving, is very selective in nature and is making our brilliant minds appear incompetent on an international scale.
“Why was this disease released upon our society? My opinion is that we created it by allowing certain behaviours or conduct to go unnoticed, uncorrected or basically swept under the rug.
However, this disease has a cure and any right-thinking person with a moral compass in our society has the ability to fight this disease if they wish, or to continue to spread and nourish it,” Balcombe said.
He said that prior to the Yarabaqua experience, in 2018, his company expressed its grievance on the conduct of the procurement procedure for the sea defence works at Sandy Bay.
“We were ignored by the local authorities and we wrote to the CDB. To date, the Sandy Bay shoreline remains unprotected and the people of St. Vincent and the Grenadines refuse to ask where is the money that was earmarked for that project. Do you even care? This “don’t ask, don’t tell” syndrome is a common symptom of the disease. Are we the people the government or its servant? You decide?” Balcombe said.
After the CDB withdrew financing for the Yarabaqua project, the government decided to fund the project with public monies and to retain the contractor about whom Bally and Bally had complained, resulting in the CDB distancing itself from the project.
We know the government is corrupt but I always look forward to pm Cum Rod’s explanation which is usually 98.9% bullshit and the remainder might have some level of honesty. Mr Balcombe I commend you for your efforts to shed light on the issue but it’s difficult or virtually impossible to keep Mr Cum Rod honest. After all pm Cum Rod knows honesty could be his downfall so he’ll keep away from honesty at all cost. Corruption breeds more corruption, crime and poverty and that’s what’s being manifested in Vincy by the great Cum Rod’s exploits and policies. SO VERY SAD INDEED.
Surprise, surprise, I hate to say I told you so Cameron. I doubt you will ever be treated fairly again, its the spite you know, its the spite.
Welcome to the world of “the connected” dear fellow, where acts of deceit and underhanded dealings are the new norm by those in power. The sooner we get rid of this family administration who runs the affairs of SVG limited, the better it would be for us all. Sadly however, there are by far, far too many dunce and deluded sycophants here in SVG with little or no schooling at all, for us to expect much hope or revolutionary change overnight.
Note how Baroness Scotland another Labourite, likewise is noted to have behaved when entrusted with controls of the commonwealth’s affairs. It is reported that “Baroness Scotland ‘circumvented rules’ to hand lucrative £250,000 Commonwealth contracts to her Labour peer friend”. The brazen norm for the so-called Socialist.
They say one thing and by all accounts they will do another because of the fact that they like the trappings of wealth, the very thing they tell us that they hate.
https://www.dailymail.co.uk/news/article-7946879/Baroness-Scotland-circumvented-rules-hand-250-000-Commonwealth-contracts-Labour-peer-friend.html
Baroness Scotland’s reign as Secretary General of Her Majesty’s Commonwealth began on April Fool’s Day 2016, a date that seems grimly appropriate. For the profligacy, cronyism, and downright nastiness with which she has since managed the affairs of this noble organisation, the Commonwealth administration body, can only be described as a bad joke.
https://www.dailymail.co.uk/news/article-7949483/GUY-ADAMS-asks-Baroness-Scotland-really-hope-stay-office.html
Note how “Baroness Scotland renames ‘Commonwealth Hub’ in tribute to the Queen… then shuts it down and puts it up for rent because of a cash crisis”. “Foreign Office officials say Downing Street has sounded out Commonwealth leaders as to whether they want her to remain – and the response was negative”.
Sensible Vincentians have said the same about the Gonsalves family regime here but we all know how the ways of Venezuela and Cuba plays out here and the acts of questionable ballots goes on unresolved.
https://www.dailymail.co.uk/news/article-7954439/Baroness-Scotland-renames-Commonwealth-Hub-tribute-Queen-shuts-down.html
“Baroness Scotland, 64, has been branded ‘Baroness Brazen’ and ‘Baroness Shameless’ over her lavish spending – although she denies all wrongdoing”. So what is to be treated as novel in the affairs of the so-called socialist rulers, when they get their hands on the apparatus of power?
They lovey to talk the talk of fairness, but the reality of delivery with them, is yet another thing altogether. Do we not have to listen to their refrain, “Mover along now nothing to see here?”
https://www.dailymail.co.uk/news/article-7988631/Australia-joins-growing-revolt-against-Baroness-Scotlands-leadership-Commonwealth.html
Bad people do bad thing because good people often do nothing. In SVG, part of our problem is that even though some good people would like to do something to bring about change, they are often far too dunce and far too afraid of the reaction of the family regime.
Yet change never comes because of the dunce’s inability to act, or by those who are far too afraid and far too timid but by those willing to take the bull by the horn. People like Toussaint Louverture the hero of the Haitian Revolution. And we sure do need change in SVG!
I care NOT about politics but as a lawyer, Ronnia is clearly mistaken that the omission of a signature on a document will not be substantive.
The principle in L’Estrange v. Gracoub is clear that one is bound by their signature. Based on the bidding criteria, without the requisite signature, what would have bind their company if they were awarded?
I truly hate that politics are becoming intertwined in an established legal principle. The omission of the signature was NOT an error related to form but substance.
That being said, if the other company was given the opportunity to include information void of the procedure, the process was flawed and should be nullified on this basis solely.
Vincy Lawyer, realize you are in SVG. Nothing runs perfectly, in fact, the opposite is true. How can a missing signature be substance and not form? You are clearly wrong on that. How difficult is it to contact the Balcombes and ask why there is no signature on that part? Instead they call the other company and give them the opportunity to make changes where “substance” is lacking; where substance is clearly a disqualifying factor, but a possibly overlooked signature is not.
Again our government is caught cheating. They are actually cheating the people and the country as much as they are cheating people they perceive as NDP, such as Balcombes and Bigger Biggs.
But you as lawyer should know, that if another bidder had a defect in their application submission and they were informed and allowed to correct the defect and resubmit, then that is completely unfair competition. Call it as it is and let us stop sweeping things under rug.
Did I not say this in my last sentence? Flaw, nullified etc?
I am only responsible for what I say not for your lack of understanding a simple comment!!!
The main purpose of my comment related to the substance and form arguments!!!
Dear Vincy Lawyer while “The omission of the signature was NOT an error related to form but substance”. We note from the case that the fact that the claimant had not properly read the contract did not impact its validity, as in signing the contract she consented to be bound by its contents. Moreover and significantly that case emphasizes the Court’s respect for sanctity of contract. L’Estrange v Graucob [1934] 2 KB 394 Court of Appeal
Yes Vincy Lawyer “The terms were agreed to by the claimant, by signature, which is powerful evidence of assent and that case symbolises the principle of freedom of contract, whereby parties to a contract are thought to be best placed to decide whether or not they wish to be bound by that contract”.
However, in the “ordinary course of doing business” and in the interest of transparency, fairness and uprightness one should and ought to point out to the intended bidder the presumed likely oversight and error before proceeding to any decision making, rather than to take the presumed oversight as an opportunity to favour one bidder over another.
To do otherwise Dear Vincy Lawyer, gives cause to invite all would be onlookers to conclude, that there is and was something thoroughly suspicious and profoundly fishy in the process, especially when and where uprightness is indeed thoroughly demanded.
It is right that the Tendering process there be put under scrutiny again because of the hold that the family regime have on Vincentian institutions and on Vincentian life generally.
We all expect fairness and good behaviour when engaging ourselves in the process of putting forward a tender or when bidding for a contract but alas and sadly, not all of those who are in the control position of the processes or in the decision making could be vouched for as honourable.
We all know too how nepotism, cronyism and the likes, have ravaged today’s SVG, even more so since the process of award could be so easily tampered with, and best quality bids thus excluded in favour bids from friends or family relationships.
A case in point, as noted before, is this where “Britain ‘suspends £4.7million of Commonwealth funding following rule breaches on awarding contracts’ after secretary-general Baroness Scotland was criticised by auditors for ‘circumventing’ usual rules in awarding a £250,000 consultancy to a firm run by a friend”. This is yet another Labour supporting person who is under scrutiny.
Such an accusation of bad behaviour on the part of those in high authority, could very often bring an organisation into disrepute. But do they care? After all the discharge of power is all that matters!
https://www.dailymail.co.uk/news/article-7994623/UK-suspends-Commonwealth-funding-procurement-row.html
In the Commonwealth’s case “The audit report is also said to have found that tendering rules had been waved 50 times over three years”. In this SVG case, who here we can say is not connected to the family regime or can even be trusted to carry out a reliable audit without fear?
Sorry bud u against the giants what u really expect????
EXACTLY lol………how stupid and naive can he be …..clearly you are against the gov and expect to get a contract LMAO …….which other gov would award a contract to someone that expose or contradict them .
smart ppl do business and keep their political opinions to themselves and private .
you think Ralph bad ……..look at Trump LOL
Tender fraud and scams are a problem worldwide. Who ever is lending this money to SVG should act immediately just like the CIB did. This is very obviously an incorrect and unfair award to the contractor because of what has come to light.
Thank you Cameron for having the balls to be fearless against the great punisher of those against him.
CDB nit CIB
I’m convinced people read to respond (just for the sake of responding) rather than to understand.
Que lastima!
What is it there that is not being understood here, our dear Vincy Lawyer, by those responding to the above article, that you should find so pitiful?
Indeed, if the receiving institution had never informed the bidder that time was of the essence, why was there such a rush to decision making by them, without so much as informing the bidder of the error in the missing signature?
As expressed before, it would sure be the normal and decent thing to do in all events!