This article is an excerpt from The Art of Tendering: A Global Due Diligence Guide, which is available for purchase.
In its May 2001 decision in Caribbean Communications Network Limited v. The Attorney General of Trinidad and Tobago, the Trinidad and Tobago Court of Appeal upheld a trial judge’s decision that found that the Prime Minister’s negative public remarks about a proponent constituted an apparent bias that compromised the evaluation process and prejudiced the proponent’s right to an impartial evaluation.
The case dealt with a Request for Proposals (RFP) issued for cellular telecommunication services for Trinidad and Tobago. After the release of the RFP, the Prime Minister took over responsibility for the telecommunications portfolio and then took part in the decision to reject the proposal of the Caribbean Communications Network (CCN). The rejected proponent took issue with this decision, claiming that negative public remarks made by the Prime Minister compromised the impartiality of the evaluation process.
The Court of Appeal summarized the Prime Minister’s public remarks about the proponent as follows:
- In delivering a speech at the Indian Arrival Day celebrations on May 29, 1997, the Prime Minister referred to the respondent’s chairman as a pseudo-racist who used race to look after himself and who wanted to maintain a monopolistic advantage over his competitors in the media.
- During another speech on November 8, 1998, to mark the commemoration of his party’s third anniversary in office, the Prime Minister declared that the government was in a state of war with the media and called on his supporters to target racist supporters and to “do them before they do us.” He also called for a boycott by his party, its supporters, and the population at large of the respondent’s media houses.
- On February 3, 2000, at a meeting of his party’s supporters, the Prime Minister accused the respondent’s group of companies of declaring war on his government. He described the respondent’s company and television station as one of the greatest enemies of the government and said that the company had declared virtual war against the government. The Prime Minister called on his supporters to defend themselves and to organize to fight “the mother of all battles” against the respondent. He also called for a boycott of the respondent’s newspaper publications and for a boycott of those who advertise in them.
- On February 8, 2000, at a meeting of his supporters, the Prime Minister said that the government was being attacked in the newspapers, and singled out the Trinidad & Tobago Express, the respondent’s newspaper, as being biased and prejudiced.
The Court of Appeal determined that these comments reflected an apparent bias on the part of the Prime Minister, stating that “in calling on the public at large to boycott the organization or to do battle with the government’s greatest enemy or to expressly condemn someone as a pseudo-racists the author would be hard pressed to deny that he has little use for that organization.” Furthermore, the Court of Appeal concluded that the “finding by the trial judge of apparent bias was sufficient to disqualify the Prime Minister from participation in the decision making process and it is from this perspective that the trial judge came to the correct decision that the decision to exclude CCN from further consideration be quashed.”
The Court of Appeal therefore dismissed the government’s appeal. It confirmed the lower court’s orders to quash the government’s decision to reject the proponent and to conduct a new evaluation of the rejected proposal. As this case illustrates, the screening of tenders should be based on clear and objective considerations that are applied free of bias. When these standards are not met, the integrity of the evaluation process can be compromised.
