Bid Protest Committee rules against Govt – Topco juice contract

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Local juice company Tropical Orchard Products Company (Topco) has won its appeal to the Bid Protest Committee over the Government’s decision to award its supply contract to another company – from Suriname.
Topco, which is a subsidiary of Demerara Distillers Limited (DDL), was a long-time supplier of juices to the Guyana Government for its national school feeding programme. That is until the Education Ministry, the procuring entity, deemed its bid for a continuation of the contract unsuitable, based on past performance.
According to the Committee, which is based at the National Procurement and Tender Administration Board (NPTAB), the Education Ministry failed to make known that past performance was a criterion for selection beforehand.
“The non-disclosure of past performance as an evaluation criterion in the solicitation documents prevents and precludes the procuring entity from belatedly relying on such criterion in the evaluation and determination of the bid,” the Committee stated.
It went on to note in its review that “The procuring entity failed, refused and/or neglected to consider only such evaluation criteria as set forth in the solicitation and tender documents contrary to sections 5 (3), 39 (2) and 39 (4) (c) of the Procurement Act, Cap 73:05.”
As the Committee deemed the Ministry to have breached this law, it went on to order that the Ministry annul its evaluation of the tenders. The Committee stated that this was because the Ministry’s evaluation committee “used an unlawful procedure to assess the bid of (Topco)”.
The evaluation committee has a specific remit from which it should not deviate. Firstly, it must only use the evaluation criteria that are in the tender documents to evaluate the bidders. Secondly, using these criteria, it determines the lowest evaluated tender.
“Thirdly, it conveys its recommendation to the procuring entity in a timely manner. No scope is given to the evaluation committee to use any criteria other than what is set out in the tender.”

Topco has won its bid protest

The Bid Protest Committee went on to rule that “pursuant to section 53 (5) of the Procurement Act, the procuring entity is ordered to compensate the Complainant for the cost of the preparation of its bid”.
The bidding was done by restricted tendering. The other six bidders were Caribbean International Distribution Inc, Guyana Beverage Inc, Banks DIH Holdings, Topco, ANSA McAL Trading Ltd and Continental Foods Inc.
Topco’s bid, $506.6 million, was the lowest one of all. Citing issues with performance such as expiration dates being breached and spoilage, the Ministry wrote Topco a letter to inform the company that it had been unsuccessful.
Despite Topco responding and asking for its bid to be reviewed in accordance with the criteria set out in the bid documents, Government did not reply. This stance continued until Topco complained to the Bid Protest Committee, after which the Education Ministry revealed it had felt compelled to invite the juice company.
At the hearing, which was held on November 29, 2016, Topco requested that the Ministry annul its decision against Topco and re-evaluate the company’s bid according to the bid documents. In addition, a request was made for a full refund of its registration fee.

Present at the hearing was the Education Ministry’s Permanent Secretary, Delma Nedd.
After Topco lost its bid last year, Government awarded the contract to supply boxed juices locally to Caribbean International Distribution Inc (CIDI), a subsidiary of Rudisa Beverages Company of Suriname. It is a decision that was criticised as Topco was a local company providing employment to many. Topco sources its raw materials for juice from local farmers.
It was only June of last year that the Bid Protest Committee was set up. The Topco case is one of its first.

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