Build-Rite Construction Company Ltd and Another v NIF Resort Management Company Ltd and Another

• Jurisdiction: Jamaica
• Judge: Laing J
• Judgment Date: 19 February 2015
• Neutral Citation: [2015] JMSC Civ 21
• Docket Number: CLAIM NO. 2014 HCV 05928
• Court: Supreme Court (Jamaica)
• Date: 19 February 2015

[2015] JMSC Civ 21

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2014 HCV 05928

Between

Build-Rite Construction Company Limited

1st Applicant

and

GM and Associates Limited

2nd Applicant

Between

Nif Resort Management Company Limited

1st Respondent

and

The Attorney General of Jamaica

2nd Respondent

Mr. Charles Piper Q.C. and Mr. Duane O. Thomas for the Applicants

Mr. Patrick Foster Q.C. , Mrs. Camile Wignall-Davis and Mr. Mark Paul Cowan instructed by Nunes, Scholfield, DeLeon & Co. for the 1 ^st respondent

Ms. Marlene Chisholm instructed by the Director of State Proceedings for the 2 ^nd Respondent

Administrative law — Application for leave to apply for judicial review

IN CHAMBERS

Laing J

The Application

1 By Notice of Application for Court Orders, filed on 2 December 2014, the 1 ^st

Applicant, Build-Rite Construction Company Limited and the 2 ^nd Applicant, GM and Associates Limited have sought the following orders.

1

That leave be granted to the Applicants to apply for Judicial Review, by way of: (i) A Declaration that the 1 st Respondent's cancellation of the tender process in respect of Invitation for Sealed Bids, concerning the projects known as, the Braco Hotel Infrastructure Improvement Room Blocks Renovations Phase 1A – RFP004a1 and Braco Hotel Infrastructure Improvement Room Blocks Renovations Phase 1B – RFP004a2 (hereinafter referred to as ‘1 st tender’), dated July 2014, and which bids were delivered to the 1 st Respondent on or before 3:15pm., Tuesday August 26, 2014, (communicated by the 1 st Respondent's letters to the Applicants, dated October 22, 2014) was unlawful, unreasonable, and not carried out in accordance with the provisions of Government of Jamaica, Handbook of Public Sector Procurement Procedures, Volume 2, Procedures for the Procurement of Goods, General Services and Works, which binds the Respondent; (ii) A Prohibitory Injunction restraining the Respondents, whether by themselves and /or their servants or agents from receiving, opening and/ or accepting any or all bids submitted in response to the 1 st Respondent's Invitation for Seal Bids, in respect of the projects known as, the Braco Hotel Infrastructure Improvement Room Blocks Renovations Phase 1A – REP 0004a1 and Braco Hotel Infrastructure Improvement Room Blocks Renovations Phase 1B – RFP0004a2 (hereinafter referred to as ‘2 nd tender), dated November 2014, and which bids were delivered to the 1 st Respondent on or before 11 a.m., Thursday December 4, 2014; (iii) An Order of Certiorari quashing the decision of the 1 st Respondent to cancel / abort the tender and procurement process in respect of the 1 st tender, and the decision to initiate the 2 nd tender process; and (iv) A Mandatory Injunction: (i) Ordering the 1 st Respondent to resume and continue the bidding process in respect of the 1 st tender; and (ii) Ordering the 1 st Respondent to comply with the National Contracts Commission's decision that the 1 st Respondent must evaluate the 1 st Applicant's bid submitted in response to the 1 st tender, which decision was made and issued pursuant to the Administrative Complaints Review Process outlined in Section 2.5, Volume 1, Government of Jamaica Handbook of Public Sector Procurement Procedures . 2. Costs of the Application to the Applicants . 3. That an interim injunction be granted against the Respondents for a period of 14 days from the date of this Order or any period determined by the Court, or alternatively, that the interim injunctions granted by Morrison, J. on December 4, 2014 against the Respondents, which expires on the 18 th December 2018, be extended, for a further period determined by this Honourable Court…’

2 At the hearing of the Notice of Application the Court granted the oral application for the amendment of paragraph 3 of the Notice of Application, and as amended it now reads as follows:

‘That an Interim Injunction be granted against the Respondents pending the hearing and determination of the matters which are the subject of the Judicial Review’.

The background

3 The Braco hotel (‘ the Hotel ’), is situated in the parish of Trelawny on lands owned by the Government of Jamaica. Although once a thriving resort it has been closed for some time and is haemorrhaging the limited resources of the Country at a rate of more than three Hundred million Jamaican Dollars (J$300,000,000.00) for every year that it remains closed.

4 There have been recent efforts aimed at applying a tourniquet to stem this loss and eventually returning the Hotel to profitability. With this objective in mind a management agreement has been entered into on 19 November 2013, between the 1 ^st Respondent and the Spanish hotel chain, Melia Hotels International S.A. (‘ Melia ’) for the management of the Hotel under its widely recognized brand.

5 As part of the efforts to get the Hotel re-opened, the 1 ^st Respondent was required to effect certain refurbishment at the Hotel, which is to consist of 2 phases (‘ the Works ’) and engaged Michael Robinson Associates, quantity surveyors, to oversee the Works. Michael Robinson Associates were also required to assist in the management of the tendering process pursuant to which a qualified contractor would be chosen to complete the Works.

6 The Applicants were among a group of six contractors which successfully pre-qualified as eligible contractors. The Applicants purchased the bid documents and were in fact the only two (2) bidders to properly submit bids in response to the 1 ^st Respondent's invitation for bids. Their sealed bids were opened on 26 August 2014.

7 After assessing the Applicants' bids Michael Robinson Associates disqualified the 1 ^st Applicant's bid as being non-responsive. This was on the ground that it contained a material deviation from the bidding requirements, in that, based on its bidding data sheet chart submitted as part of its bid, it proposed to carry out the construction works in six (6) months. This was as opposed to the stipulated four (4) months as expressed in the ‘Abstract of Particulars.’ It later appears that the conclusion was that the period was in fact in excess of five (5) months but not much turns on this distinction.

8 The 2 ^nd Applicant's bid was evaluated and Michael Robinson Associates concluded that it did not have the experience or the capacity to carry out both phases of the Works. It was therefore recommended for one phase only.

9 Being faced with one qualified bidder in respect of one phase of the Works only, the 1 ^st Respondent decided to terminate the bidding process, and that decision was communicated by way of a letter dated 22 October 2014, which was sent to the Applicants herein.

10 In early November, the 1 ^st Respondent began a second tender process for the Works. The deadline for the submission of bids in that process was 4 December 2014.

11 The Applicants made complaints about the conduct of the first bid to the 1 ^st Respondent, copied to the National Contracts Commission, the Contractor General and other parties. After limited participation in the second bidding process, on 2 December 2014 the Applicants filed the Application herein.

12 An ex parte injunction was granted by Morrison J on 4 December 2014, which has not been extended, but the 1 ^st Respondent has given an undertaking to preserve the status quo and at the end of the hearing of this matter, Counsel for the Respondent's extended that undertaking until Friday 20 February 2015.

13 The Applicants assert that there is a clear right to apply for judicial review in circumstances in which they have been treated unfairly in relation to the tender submitted by each of them and that they are both entitled to ask the Court to review the entire bidding process and its eventual termination.

Is the claim justicable by way of judical review?

14 Civil Procedure Rules, 2000 as amended (‘ CPR ’) rule 56.2 provides for an application for judicial review to be made by any person with a sufficient interest in the subject matter of the application. This includes anyone who has been adversely affected by the decision which is the subject matter of the application. The Applicants assert that they have been adversely affected by the decisions of the 1 ^st Respondent in the assessment of their bids and in the termination of the first bid. However it is not every decision which adversely affects a party which is justiciable by way of judicial review and the Court must assess the decisions complained of against the background of the applicable law before granting leave to apply for judicial review.

15 Mr. Piper Q,C. submitted that there is a clear public law element on which the Application for leave is based, since, (as I summarise it), the matter concerns, inter alia , procurement of services in the public sector by a state owned body using public funds. He submits that when such a body as the 1 ^st Respondent invites tenders from the public and makes a decision in respect of such tenders, it is required to do so in compliance with the Government of Jamaica Handbook of Public Sector Procurement Procedures (the ‘GOJ Handbook’ ). In doing so, he argues, it is performing a public duty.

16 Mr. Piper further submits that the GOJ Handbook at clause 2.5.5 of section 2, Volume 1, expressly provides that the Courts have jurisdiction over actions pursuant to the handbook, and petitions for judicial review of decisions made by reviewing bodies, or of the failure of those bodies to make a decision within the prescribed time limits.

17 I do not interpret clause 2.5.5 to be purporting to establish an independent route to judicial review or to be conferring a right to judicial review of all decisions of reviewing bodies that relate to procurement of goods and services. In my view, it is merely confirming...