Elmoalis Ltd v The Attorney General of Anguilla

• Jurisdiction: Anguilla
• Judge: Mr. Mario Michel,Mr. Gerard St. C. Farara,Dame Janice M. Pereira
• Judgment Date: 21 May 2021
• Neutral Citation: AI 2021 CA 2
• Docket Number: AXAHCVAP2019/0002
• Court: Court of Appeal (Anguilla)

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mr. Gerard St. C. Farara, QC Justice of Appeal [Ag.]

AXAHCVAP2019/0002

Between:

Elmoalis Ltd.

Appellant

and

The Attorney General of Anguilla

Respondent

Appearances:

Ms. Tara Carter for the Appellant

Ms. Sherma Blaize-Sylvester for the Respondent

[1] A public authority which acts outside of the power conferred on it by law acts ultra vires its discretion or illegally. In determining whether a decision is illegal, the court must construe the content and scope of the instrument conferring the duty or power upon the decision-maker. In this case, the remit of the Evaluation Committee was to evaluate bids and report its findings to the Procurement Board following which the Procurement Board decides on the successful bidder. The Evaluation Committee is not a decision maker under the Procurement Act. It is therefore incumbent upon Elmoalis to show that the Procurement Board's decision-making process, in exercising its own statutory discretion to accept the recommendations of the Evaluation Committee fell within some recognised ground of judicial review. It is not enough to attempt to impugn matters at the level of the Evaluation Committee, without reference to how these matters render the decisionmaking process of the Procurement Board unlawful.

Council of Civil Service Unions and Others v Minister for the Civil Service [1984] 3 WLR 1174 considered; Quorum Island (BVI) Ltd v Virgin Islands Environmental Council BVIHCVAP2009/0021 (delivered 12th August 2011, unreported) followed; Chief Constable of the North Wales Police v Evans [1982] WLR 1155 applied; Belize Alliance of Conservation Non-Governmental Organisations v The Department of Environment and Another [2003] UKPC 63 considered.

[2] The learned judge did not err in finding that the decision to refuse Elmoalis' bid was not illegal and ultra vires. It is clear that section 41 of the Procurement Act requires the publication of criteria for the assessment of bids and the respective weight to be attached to each criterion, and that the Committee abides by those published criteria in its evaluation of the bids. The requirements of section 41 were satisfied since the evaluation criteria for all bids were set out in clear terms in the RFP. Further, given that Mr. Richardson's appointment has not been challenged or revoked, he is a lawful member of the Committee and therefore capable of conducting business anticipated by the legislation to be within his purview. It therefore cannot be said that the responsibility of assessing the suitability of the bidders' waste collection vehicles was improperly delegated to him. Additionally, where the details of the decision-making process of a statutory administrative body are not specified by statute, as is the case here, the body is permitted to delegate tasks among itself and to thereafter collectively exercise its decision-making power in the manner contemplated by the statute. The Committee's failure to collectively carry out each step of the evaluation process did not therefore taint the decision-making process with illegality. There is also no basis for concluding that the grading of the bids was not done by all the members of the Committee, as required by the Procurement Act and the Regulations. The evidence before the learned judge showed that the report represented the collective suggestions of each member of the Committee as to the bidders who ought to be awarded contracts.

Section 41 of the Public Procurement and Contract Administration Act, Cap. P161, Revised Statutes of Anguilla 2016 considered; Attorney General of Turks and Caicos v Misick and Others [2020] UKPC 30 applied; Selvarajan v Race Relations Board [1976] 1 All ER 12 considered; Barnwell v Attorney-General and Another (1993) 49 WIR 88 considered; Allingham v Minister of Agriculture and Fisheries [1948] 1 All ER 780 considered; R v Monopolies and Mergers Commission, ex parte Argyll Group plc [1986] 2 All ER 257 considered.

[3] The common law duty to act fairly in procurement processes is enshrined under section 2(3)(d) of the Procurement Act which requires public procurement and contract administration to ensure fair treatment of all persons who participate in the procurement process. On the evidence, the statutory and common law obligation to treat bidders fairly cannot be said to have been compromised in this case. Elmoalis has not produced any evidence that matters related to the calculation of the lowest priced bid were either incorrect or were manipulated by members of the Procurement Board, such that Elmoalis would have been the lowest responsive bidder and awarded a contract. The Procurement Board's decision-making process cannot therefore be said to have been unfair, and the learned judge did not err in failing to conclude that it was unfair.

Section 2(3)(d) of the Public Procurement and Contract Administration Act, Cap. P161, Revised Statutes of Anguilla 2016 considered; Central Tenders Board and Another v White [2015] UKPC 39 applied; Re H.K. (an Infant) [1967] 2 WLR 962 applied; Chief Constable of North Wales Police v Evans [1982] WLR 1155 applied; Central Tenders Board, London and Clydeside Estates Ltd v Aberdeen District Council [1979] 3 All ER 876 applied; Director of Public Prosecutions of the Virgin Islands v Penn [2008] UKPC 29 applied.

[4] As there is no basis to interfere with the learned judge's decision to dismiss Elmoalis' judicial review claim, the possibility of an award for damages occasioned by the alleged unlawful conduct raised by the claim automatically falls away. In any event, to obtain an award of damages in judicial review proceedings, a claimant must plead and prove a recognised private law cause of action, for which damages would be available as a remedy. Outside of the alleged illegalities and unfairness in the procurement process, Elmoalis' claim did not assert any civil liability on the part of the state. There is therefore no private law claim to which Elmoalis' claim for damages for loss of profits could have been appended.

Tchenguiz and another v Director of the Serious Fraud Office [2014] EWCA Civ 472 applied; Dr. Abner James v The Medical and Dental Council SLUHCVAP2018/0018 (delivered 12th March 2020, unreported) followed; Central Tenders Board and Another v White [2015] UKPC 39 distinguished.

[5] The named defendant in judicial review proceedings ought to be the public functionary or body whose decision-making process is subject to review. It follows that the Attorney General ought only be named as a defendant to judicial review proceedings where he or she has made the decision in relation to which judicial review has been sought. In this case, the decisions Elmoalis has complained of were not made by the Attorney General but were made by the Procurement Board and the Evaluation Committee. The Attorney General was therefore neither a necessary nor proper party to these proceedings. The Evaluation Committee and the Procurement Board and/or their members were the proper parties to Elmoalis' claim.

Bahamas Hotel Maintenance and Allied Workers Union v Bahamas Hotel Catering and Allied Workers Union and others [2011] UKPC 4 applied; Quorum Island (BVI) Ltd v Virgin Islands Environmental Council BVIHCVAP2009/0021 (delivered 12th August 2011, unreported) followed; Minister of Foreign Affairs v Vehicles and Supplies Limited [1991] 1 WLR 550 applied.

Civil appeal — Judicial review — Decision of Procurement Board refusing appellant's bid for solid waste management contract — Recommendation of Evaluation Committee — Illegality — Ultra vires — Whether learned judge correctly applied the relevant provisions of the Public Procurement and Contract Administration Act and Regulations in concluding that decision was not illegal and ultra vires — Whether evaluation criteria for bids disclosed in bid documents as required by section 41 of the Public Procurement and Contract Administration Act — Whether responsibility of Evaluation Committee to assess bidders' waste collection vehicles was improperly delegated to a member of the Committee — Whether grading of bids done in breach of the Public Procurement and Contract Administration Act and Regulations — Unfairness — Whether procurement process was unfair — Damages — Whether appellant entitled to damages for loss of profits — Joinder of parties — Whether Attorney General is a proper or necessary party to the judicial review claim

In 2017, Elmoalis Ltd. (“Elmoalis”), submitted a bid/proposal in response to a procurement notice and request for proposals (“the RFP”) issued by the Procurement Office in the Ministry of Finance of Anguilla. The proposal was for a 7-year contract for the provision of solid waste collection services across various collection zones in Anguilla. Five other companies submitted proposals. The proposals of all 6 companies were considered by an Evaluation Committee (“the Evaluation Committee” or “the Committee”) constituted under the Public Procurement and Contract Administration Act (as amended) (“the Procurement Act” or “the Act”). The Committee comprised three members, including Mr. Leroy Richardson (“Mr. Richardson”) who was tasked with inspecting the garbage collection vehicles owned by the bidders for their suitability to fulfil the works under the contract. At the end of the evaluation process, a report was produced by the Committee and sent for consideration by the Procurement Board. The Procurement Board accepted the Committee's recommendations in the report, refused Elmoalis' bid and awarded the contract to another bidder.

Elmoalis sought judicial review of the decision to refuse its bid, and related decisions on the basis that the decisions were ultra vires and void for improper delegation, illegality and...