WMG & RBD v Procurement Board

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Moise, J.
• Judgment Date: 03 October 2025
• Judgment citation (vLex): [2025] ECSC J1003-3
• Docket Number: CLAIM NO. AXAHCV2025/0028

Between:

Webster Management Group Ltd

RB Development Ltd

Claimants

and

The Procurement Board

Defendant

[2025] ECSC J1003-3

Before:

His Lordship, The Honourable Justice Ermin Moise

CLAIM NO. AXAHCV2025/0028

CLAIM NO. AXAHCV2025/0029

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CIVIL)

Appearances:

Mr. Thomas Astaphan KC with Mr. Dwight Horsford and Mrs. Tonae Simpson-Whyte of counsel for the Claimants.

Mr. Theon Tross for the Defendant.

Moise, J.

1 These are two separate claims filed against the Procurement Board for judicial review. The claims involve the decision of the Board denying the claimants' bids for the award of contracts for solid waste collection in various zones on the island of Anguilla. The claims are consolidated for the sole purpose of the court's ruling on an interlocutory issue regarding disclosure. The defendant claims the right to withhold inspection of the report from the Evaluation Committee on the grounds of public interest immunity. The claimants object to this and request full disclosure and inspection of the report.

Brief Overview of the claims

2 On 26 ^th June 2024, the Ministry of Finance issued a notice to tender in “Procurement # 2024/MOFH/DHP/033 Management of waste collection and Recycling services”. By way of this process, the Government of Anguilla was seeking to issue 3-year contracts for the collection of solid waste to successful bidders in 6 separate zones on the island. Webster Management Group Ltd (Webster Management) submitted bids for zones 5 and 6 and RB Development Ltd (RB Development) submitted bids for zones 1, 2 and 3.

3 On 30 ^th August 2024, the bids were opened and, due to an irregularity in the opening of bids for zone 1, the bids were suspended for that zone. The bids were opened in the remaining zones. On 28 ^th January 2025, Webster Management was informed that its bid for zone 6 was unsuccessful. It is claimed that at the opening of the bids for zone 6 the only other competitive bidder was Krystal Environmental Ltd. It is contended that this company was determined not to be qualified for failure to meet certain pre-qualification requirements. Webster Management argues that it was the only qualified bidder with a valid bid for a contract in zone 6.

4 It is claimed that Webster Management was never notified of the outcome of the bids for zone 5 but became aware that Javier Rental Services was awarded that contract. It is pleaded that Javier Rental Services has only one operational rear end loader truck on island to perform the required services in that zone. Webster Management seeks to challenge this process and seeks various declarations and orders of certiorari quashing the decision of the Procurement Board.

5 In response to this claim, an affidavit was filed by Ms. Sierra Richardson, who currently serves as the acting Chief Procurement Officer. There was some debate at the first hearing as to whether Ms. Richardson is best placed to represent the Procurement Board. Be that as it may, Ms. Richardson outlined the procurement process in this particular case. She admits that Webster Management met the criteria in both zones. She states that she is aware that the bids submitted by Webster Management for zones 5 and 6 were deemed qualifying bids. Similarly, she claims that the bid submitted by JLB Services in respect of zone 5 was deemed to be a qualifying bid. Ms. Richardson concedes that the bid tendered by Krystal Enviro Services in respect of zone 6 was not deemed a qualifying bid as they failed to submit a business licence, as was required.

6 The bids were then reviewed by the Evaluation Committee and although Webster Management passed the technical phase of the evaluation with a grade of 92% over JBL's 77%, the Evaluation Committee determined that Webster Management's bid for both zone 5 and 6 were outside of the allowable margin of 15% of the pre-tender estimate range. As such, the company did not pass the financial phase of the evaluation. The Evaluation Committee recommended that the bid be awarded to JBL in zone 5. However, as regards zone 6, notwithstanding Webster Management's score on the financial phase of the evaluation, it was nonetheless the recommendation of the Evaluation Committee that the contract be awarded to Webster Management. However, the Procurement Board did not follow that recommendation. Ms. Richardson noted, in her affidavit, that as the variance between the submitted bid price and the pre-tender estimate far exceeded the allowable margin set by the Invitation to Bid, the procurement for zone 6 failed and is set to be retendered in the coming days or week. Since then, month-to-month contracts have been awarded in zone 6 until the bids can be re-tendered.

7 Insofar as it relates to the claim by RB Development, this claimant entered bids for zones 1, 2, and 3. All of RB Development's bids were unsuccessful. It is submitted that RB Development tendered a bid for a temporary month-to-month contract in zone 1 in February of 2025. This too was unsuccessful. RB Development claims that the defendant has awarded the contract for Zone 2 to Elmoalis Ltd. It is pleaded that Elmoalis only has only one operational rear end loader truck. It is further pleaded that the Defendant has awarded the contract for zone 3 to JLB Rentals and that JLB, only has one truck on island. RB Development asserts that it possesses the necessary equipment to perform the task

8 In response to this claim, Ms. Richardson also filed an affidavit. In essence she concedes that RB Development was qualified to make the bid. However, she stated that this company did not pass the technical evaluation, having scored 74% in circumstances where the pass grade was 75%. On that basis RB Development was not awarded the contract.

9 In both claims, the claimants have asserted that the defendant has acted unfairly and unreasonably. It is also submitted that the defendant has acted in breach of various sections of the Public Procurement and Contract Administration Act and, given the clear stipulations in the bid documents and the technical equipment requirements set out in the criteria, it is apparent in all the circumstances that either the Evaluation Committee (a subcommittee of the defendant) or the defendant itself predetermined the matter of the awards. It is also pleaded, among other things, that defendant could reasonably be suspected by rightminded or fair-minded observers of being biased, and, was indeed biased, for the decision is outrageous in its defiance of logic that no sensible decision-maker seized of the facts and knowledgeable of the essential criteria could have made that decision. The decision is palpably unfair and irrational as to evince apparent bias.

10 Having highlighted, in summary, the substance of the pleadings as it now stands, I turn to consider the issues relating to disclosure.

The Evaluation Committee's Report

11 In accordance with section 41 of the Public Procurement and Contract Administration Act 1, prior to the date for the submission of bids, it is the duty of the Procurement Committee to constitute an Evaluation Committee consisting of at least 3 members. As outlined in section 42 of the Act “[t]he objective of an Evaluation Committee is to evaluate bids or proposals for large procurements, except emergency procurements, in accordance with objective evaluation criteria set out in the invitation for bids or requests for proposals to determine if the works, goods or services meet the description of what is being procured.” In the case of Elmoalis Ltd v The Attorney General of Anguilla 2 Pereira CJ outlined the remit of the Evaluation Committee as follows:

“ The statutory remit of the Committee is to evaluate bids in accordance with predetermined criteria set out in the request for proposals, and to report its findings to the Procurement Board, pursuant to section 41 the Act, following which the Procurement Board would then accept, reject or otherwise treat with the report prior to making a decision on who is the successful bidder.”

12 Essentially, the Evaluation Committee is not a decision maker. The role is to evaluate the bids and to submit its findings to the Procurement Board. In both claims for judicial review, the claimants have

requested specific disclosure as interim relief. They both seek parallel orders for specific disclosure directed to the defendant, to require the defendant to disclose and furnish the court with the Evaluation Committee's findings and report in respect of the assessment carried out on the competitive bids in the relevant zones which were submitted to the defendant in accordance with the provisions of the Act

13 In response to this, the defendant has asserted a right to withhold disclosure of the report on the grounds of public interest immunity. In support of this assertion, the defendant filed an affidavit of Mrs. Ludiane Leveret-Richardson. Mrs. Leveret-Richardson is now seconded to an acting post within the Ministry of Finance but is substantively the Chief Procurement Officer. At paragraph 5 of her affidavit, she states that “[ t]he central reasons as to why Government asserts that these documents ought to be withheld generally and as a matter of Public Interest Immunity are as follows:-

• ○ Firstly, the Procurement Board's decision-making process in determining who ought to be awarded a contract is statutorily distinct from the role of the Evaluation Committee in evaluating bids against the criteria contained in the Invitation to Bid;

• ○ Secondly, the provision of these documents is likely to impede the requirement of fairness in the impending procurement exercise for Zones 1 and 6; and

• ○ Thirdly, there is an established practice within the Government of Anguilla that the identities of persons appointed to evaluation committees remain confidential both during and after the procurement process.”

14 Mrs....