Judge throws out Elias’ claim

Justice Humphrey Stollmeyer, presiding in the Port-of-Spain First Civil Court, found that NH’s application was premature as Udecott did not make a final decision in awarding the contract to Karabakh. He also found that the contract for the project was not one which attracted a public law element, and therefore it was not susceptible to judicial review.

The judge ordered NH to pay costs to Udecott fit for a senior and junior attorney, as well as 25 percent of the costs to Karabakh.

Alvin Fitzpatrick SC and Rikki Harnanan appeared for NH; Russell Martineau SC and Deborah Peake for Udecott; and Dr Claude Denbow SC, Kelvin Ramkissoon, and Donna Denbow for Karabakh.

In June 2002, the Ministry of Health retained Udecott to design, finance, construct, project manage, outfit and lease to the ministry a building at Queen’s Park East to accommodate the ministry’s head office and certain centralised programme units.

Udecott engaged the services of London Street Project Company as project manager. A report was submitted to Udecott, whose board of directors met and considered all the tenders for the project. The lowest tender came from Karabakh ($149,499,600.49) and the second lowest from NH ($165,244,231.90).

Having taken everything into account, the board of directors decided that it was not then in a position to award the contract to any tenderer. Instead, it decided that it would award the contract to Karabakh provided that all of the board’s concerns were first satisfied, including Karabakh’s ability to complete the project at the tendered sum.

According to the board, this could only be done after completing a thorough review of all elements of the contract and design and value engineering of the project. NH wrote to Udecott on November 16, 2004, objecting to the award being made. Udecott replied saying the contract would be awarded to the lowest tender after the completion of the review. NH then brought judicial review proceedings against Udecott. In his 31-page judgment, Stollmeyer said it was clear that Udecott was a private entity and not a public authority.

He agreed that Udecott was a private body performing a private function in making the decision. He also agreed that the decision was in relation to a contract which itself had no public flavour or function.

Stollmeyer also noted that the award of the contract was not final. "It was, if anything, a conditional award, and if Udecott was not satisfied with the results of its investigations, then it was free to take up the matter with any other bidder, or proceed otherwise, if it so chose."

The judge found that the proceedings brought were premature. "The contract had not been awarded, and there was no guarantee or assurance that it would be awarded to HK (Karabakh)," Stollmeyer said

After the judgment, Udecott chairman Calder Hart said, "we feel this ruling has vindicated our procedures for the award of tenders.

"The board has maintained that we endeavour to get our work done as expeditiously and efficiently as possible taking such issues as cost, value and the ability to complete the job in a timely fashion into consideration."

Hart said the judicial review application brought by NH delayed the process by eight months, "but we are determined to continue the work that we have been asked to do."