Bid rejected because of his missing signature
The Managing Director of Bally and Bally Investment Ltd, Cameron “Dinky” Balcombe, is once again expressing dissatisfaction with the bidding process for local contracts and he has written to the World Bank to complain about unfair treatment.
His latest complaint came on Monday, February 10, at a news conference where Balcombe said his bid for the World Bank funded coastal defence works at San Souci, was rejected because of his missing signature on the bid bond.
He said, on the other hand, the successful bidder omitted to provide several pieces of pertinent information, but was allowed to add to their bid.
Balcombe’s wife, Ronnia Durham-Balcombe, who is a director of Bally and Bally Investments, acknowledged at the press conference, that neither party can be bound by the terms of an unsigned document, but stated that the ommission was not of substance.
A bid bond is in summary, a document from the bidders bank, insurance company or other approved institution providing a monetary guarantee to the government (in this case referred to as the client) that the bidder would not withdraw its bid before the end of the bid validity period stipulated, or to safeguard against their refusal to sign the contract if selected.
Signing the bid bond means the client will have the right to keep the bid security amount, if the bidder withdraws or refuses to sign the contract, if awarded.
The template for the bid security is provided in the tender document and the bidder’s guarantor completes it on their letterhead for the required amount and bid validity period, and signs it. There is also an area for the bidder to co-sign on the bid security document and it is submitted as part of their bid.
According to Balcombe, in 2019, his company tendered for the San Souci sea defence works, and the Georgetown sea defence works, but was unsuccessful in both cases.
He said their current grievance relates to what he considers, the prejudicial and unfair dismissal of Bally and Bally’s tender, and the awarding of the San Souci contract to another bidder on November 11, 2019.
Bally and Bally, and UK-based Earlcoat Construction and Plant Hire Ltd, submitted a tender for the coastal defence works at San Souci in 2019.
Five other companies also submitted bids for this project, and on January 23 this year, Bally and Bally received an email notifying them that their tender was unsuccessful as they had submitted an unsigned bid security.
He said the email noted that the unsigned bid security was deemed to be a material omission, pursuant to clause 29.2A2 of the instruction 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 right or the bidder’s obligation under the proposed contract.
“Failure of the principal to sign the bid bond eliminates its enforceability by the employer, thus, the bid was rejected,” said Balcombe, who pointed out that “our bid was eliminated for want of a signature, nothing more.”
Balcombe, however, maintained Monday that they did not submit an unsigned bid security.
“I recall the bid security was signed and sealed by the insurance company and by me on behalf of Bally and Bally Earlcoat Joint Venture,” Balcombe told reporters.
He said he was later shown a bid bond for the said project, signed and sealed by the insurance, but not signed by him.
“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, 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,” Balcombe said.
He said that these omissions are sufficient to have caused the successful bidder to have fallen short, and that bidder, Kelectric Company Limited, should not have been given consideration at all.
“Nevertheless, that bidder was given the opportunity to basically redo its bid to provide the required information,” Balcombe claimed. He added that for want of a signature, his bid was eliminated and no opportunity given to him to include it on the single document, yet the tenderer was asking for more money to do the project and that tenderer’s bid had more problems, but they were given the advantage to get their documents in order,” Balcombe stated.
“Now, how could this be fair and right in the face of transparency and justice; how could this be fair to contractors who depend on these biddings for a livelihood, and also the workers who depend on them for livelihood?” questioned Balcombe.
Balcombe said he is being unfairly treated because in 2019, he wrote to the Caribbean Development Bank (CDB) and got them to declare a mis-procurement in the Yarabaqua River Defense Project on which his company had bid and lost.
Balcombe said persons who do not encounter the procurement process in their daily living, may wish to ignore his company’s grievances, but he is imploring persons to listen to his complaints.
Balcombe’s wife, lawyer Ronnia Durham-Balcombe, also speaking at the press conference, said the issue is one of public interest as the procurement process affects how the Government spends taxpayers’ money.
Durham-Balcombe, who is a director of Bally and Bally Investments, said a press conference is not one of the redress mechanisms contemplated by the tender document or the public procurement Act of 2018, but neither is it prohibited.
“This is a serious concern that should not be hidden from the public. When submitting bids, all persons involved in the tender process, from the tenderers to the evaluators of the bid, are guided by the tender documents [and] in particular, the instructions to bidders and the Bid Data Sheet.
“These documents are provided to the bidder whenever they express an interest to bid on the project, and, it basically tells the bidder what are the criteria for the project and the procedures for bidding, evaluation and the award of the contract,” explained Durham-Balcombe.
She said these documents mandate that the information be submitted as part of the bid, and this one asked for the bidder to provide the required information concerning its financials, experience and qualifications, and other information, in order to comply with the evaluation and qualification.
“It is also mandatory for the bidder to provide bid security in the amount and for the period, and in the form that is provided in the Bid Data Sheet. Now, it is this purported admission to cosign which caused 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,” Durham-Balcombe charged.
She said substance speaks to the content, which is, the correct amount, the correct bid validity period and the correct wording, while form speaks to signature, stamping, sealing and the like.
“Although all other documents in our bid were signed and evaluators saw the purported defect to be substantial enough to eliminate the Bally and Bally Earl Court joint venture, the other bidder clearly omitted to provide a number of the mandatory or material information required in the bidding document, and this material nonconformity 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 arithmetic correction discovered during the evaluation,” Durham-Balcombe said.
“So glaring were the omissions of the bidder deemed as successful, yet they were permitted to include additional information after the submission, why wasn’t Bally and Bally and Earlcourt Joint Venture also given a second chance”, she questioned.
“ Why wasn’t Bally and Bally permitted to affix a signature to a single document, was it punishment for speaking up and out”? she questioned further.
She said they are advocating for a minimum standard below which no one falls, to ensure fairness, transparency and accountability in the procurement process.
Her husband said this was the third incident they could “substantiate with credible evidence where this has happened,”.
He said they have written to the World Bank which provided the loan to fund the San Souci project and received a response, and been given a case number.