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The Daily Herald – Ombudsman: Tender and award for waste collection ‘not fair or transparent’

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Mediator Gwendolien Mossel

PHILIPSBURG — Ombudsman Gwendolien Mossel recently concluded an investigation into the 2021-2026 solid waste collection tender and award process.

After submitting a preliminary report on April 11, the final report was delivered to the Minister of Social Housing, Spatial Planning, Environment and Infrastructure VROMI Egbert Doran on Monday June 27.
The Ombudsman concludes, based on the findings, that the tendering and awarding process was “neither fair nor sufficiently transparent”.
“The application of certain provisions of the terms of reference, in particular the requirement of the original commercial license based on the scope of work tendered, and the tariff component has disproportionately affected certain contractors, while benefiting others. ‘others’, the Ombudsman said. .
The end result is that the tendering process was mismanaged, with some contractors, more than six months into the contracts, unable to meet the requirements of the terms of reference/contract, resulting in poor work execution.
Shortly after the 2021-2026 award process, complaints against Minister VROMI were lodged with the Ombudsman by several bidders who participated in the tender and expressed concerns about the credibility, reliability and the transparency of the process.
Considering the complaints/concerns received and the importance of transparency in government procurement procedures and policies, the Ombudsman decided to conduct a systemic investigation in the overall public interest.
The main question the Ombudsman sought to answer in this investigation was whether the tendering and award process, as well as the procedures and policies followed by the evaluation committee, were fair and transparent.
“Preparations for the bidding process for solid waste collection did not start in time,” the Ombudsman said. “This may have contributed to the poor quality of the terms of reference. In this regard, the adage “haste is wasteful” rings true.
“The Department of Infrastructure Management has acknowledged that they are under enormous pressure to complete the tender on time. This resulted in the approval of insufficiently verified mandates and the rapid constitution of an evaluation committee.
“The committee immediately faced challenges in terms of the interpretation and execution of certain critical provisions of the terms of reference, which led to arbitrary decision-making, infighting and ultimately resignations, where four of the seven members of the committee deviated from the results of the call for tenders.
According to the Ombudsman, Doran refused to provide critical information such as signed individual evaluation sheets for the completeness of tender documents and signed internal findings reports. Consequently, the Ombudsman was unable to make a full assessment and determination regarding the transparency of the bidding and award process, which led the Ombudsman to the conclusion that the process was not transparent enough.
“Given that the contractors could not compare the final results of their respective tenders with their competitors, due to the Ministry’s refusal to provide an evaluation report when questioned, the Ombudsman therefore concludes that, on the basis of the fundamental procurement principles, the procedures and policies followed by the evaluation committee were also not sufficiently transparent.

Bottlenecks and Challenges
Based on the investigation, the Ombudsman identified bottlenecks and challenges in the preparation of the terms of reference, the evaluation and selection, as well as the post-award phase of the procurement process.
There is no overarching bidding policy, the Ombudsman said. VROMI has recently issued a tender policy, but this newly established policy can only be seen as a modest start and does not fulfill the government’s obligation under Article 47, paragraph 6 of the Ordinance on national responsibility, which obliges the government to establish, by national decree containing general measures, additional rules concerning the way in which a tender is organized and carried out.
The mandate had many shortcomings, the Ombudsman found. “Many topics were not properly defined or were open to multiple interpretations. As an important document on which bidders had to make and prepare detailed and clear bids, the terms of reference themselves lacked detail. Some elements lacked definitions – clear. Other critical elements – for example, the required documentation – also lacked clear explanations, leaving too much room for subjective interpretation.
Although approved by the ministry, legal experts and the Council of Ministers, the terms of reference leave a lot of room for improvement, the Ombudsman concluded. “This has been widely recognized by the evaluation committee and the ministry’s management. Time constraints were also mentioned as a contributing factor to the discrepancies.
Although the intent and purpose of the requirement to have a business license based on the scope of work to be tendered was positive, the manner in which it was applied was arbitrary and unreasonable, and therefore disproportionately affected some contractors. For starters, the new requirement was not communicated properly.
The investigation revealed that what was recognized and accepted as “a bank statement indicating the financial capacity of the company” was not consistent.
“While many companies submitted a bank letter outlining their relationship with their bank, including the existence and extent of credit facilities, others submitted a bank statement simply listing their current account balances, which is just a snapshot of a company’s finances at a specific moment in time,” the Ombudsman said.

Evaluation Committee
The minister has established in the new policy that the assessment committee should not be made up of members from the same department. The fact that members of the cabinet are part of the evaluation committee was identified as an obstacle by a majority of the department during the hearings conducted by the ombudsman. “This should be reconsidered in the future,” the Ombudsman said.
The method chosen for scoring prices was found to be inadequate and should be thoroughly reviewed. The survey revealed that only 20% of qualified contractors received points for the awards. “It’s alarming. Considering that determining the government price is in itself a challenge, due to the lack of data and presumed expertise, this topic must also be treated separately.
According to the Ombudsman, serious consideration should be given to limiting the number of packages per contractor or to having a real verification of the company’s ability to carry out the work. “It’s proven right now that an entrepreneur handling more than two packages is quite a challenge,” Mossel said.
The participation of individual companies in tenders for solid waste collection, given the risk it poses to the government, should also be reconsidered, she said. Current garbage contracts vary in value from NAF. 4 million to NAF. 10 million for the quinquennium. “Exposing the government to such considerable risk cannot be considered good governance.”
Certain provisions of the terms of reference are ignored by contractors and not applied by the department, partly due to a lack of staff. These include, but are not limited to, a maximum truck age of 10 years, a requirement to have two trucks per package, and a ban on sub-contracting.
“Perhaps a lesser requirement that is being flouted, but equally important, is the contractor’s requirement to provide satisfactory uniforms, including a hard hat, safety glasses, safety vests and safety shoes. to staff.

No overall plan
A global vision of waste management does not exist, said the Ombudsman.
“Waste management is primarily the responsibility of the government, which regulates and manages waste in accordance with their respective laws, policies and programs. Much of this responsibility is currently passed on to the contractor with little or no accountability to the community.
“Often (some) members of the public refuse to follow established, common-sense requirements, much to the chagrin of contractors. For example, concrete rubble, cooking gas cylinders and hazardous chemicals are dumped unceremoniously among the household waste for collection.
“These frequent offenses committed by the public generally go unpunished. However, inspectors immediately target carriers with warnings and penalties. This creates an imbalance in tasks and hinders the realization of an effective waste management plan.
Transparency of the post-award process is limited, especially for unsuccessful contractors. Although all contractors received an official outline of the points awarded per parcel, it was difficult to receive further clarification of the points awarded and requests to receive an evaluation report were refused, which is contrary to the sourcing fundamentals.

Recommendations
Based on the findings of the report, the Ombudsman made the following recommendations: A comprehensive procurement policy should be created and a national decree containing general measures promulgated. Terms of Reference should be prepared in a timely and accurate manner. Ministry of Infrastructure staff need to be increased and trained. A public tender evaluation report must be submitted and an overall waste management plan must be created.
The final report is available for download on the Ombudsman’s website
www.ombudsmansxm.com under the “reports and articles” tab. A short animated video was produced to complement the report. The film can be viewed on the Office Ombudsman Sint Maarten’s Facebook page and YouTube channel.