Derek Achong

A Government policy, allowing the Solid Waste Management Company (SWMCOL) to procure waste disposal service contracts for all municipal corporations in Trinidad has been declared unlawful.

Delivering a rulingt in an appeal brought by four waste disposal companies last Wednesday, Chief Justice Ivor Archie and Appellate Judges Nolan Bereaux and Mira Dean-Armorer ruled that the policy could not usurp the powers of the Central Tenders Board (CTB), which is mandated to conduct such tendering.

Archie, who wrote the judgment, stated that the CTB Act permits the Government to utilise the National Insurance Property Development Company (Nipdec) or other wholly-owned State agencies in lieu of the CTB.

However, he noted that it would not apply in the case as the 14 municipal corporations could not be considered “the Government” under the provisions of the legislation.

According to the evidence in the case, the issue arose in 2010 after the then Cabinet decided that the procurement process for contracts between 2010 and 2013 should be handled by SWMCOL in exchange for a nominal procurement fee.

SWMCOL did the process between 2013 to 2016, with Nipdec being utilised between 2016 and 2018.

In 2017, the Cabinet decided to change the system of awarding the contracts with a focus on giving more to smaller companies.

SWMCOL engaged in a pre-qualification process with 179 companies, who signed up, grouping them into small, medium, and large categories.

SWMCOL then developed additional routes in the municipal corporation increasing the number from 310 to 387.

When SWMCOL began to invite tenders for some of the routes, the companies-BK Holdings, Central Equipment Rentals, Bartholomew Transport Company, and Waste Disposals (2003), three of which were involved in pre-qualification, filed the judicial review lawsuit.

The lawsuit effectively halted SWMCOL’s work on the issue.

A High Court Judge initially dismissed the case stating that the action was covered by the CTB Act and that pre-qualification could not be judicially reviewed as it was a private commercial arrangement.

In his judgment, Archie ruled that pre-qualification is the start of the tendering process and is hence covered under the CTB Act and subject to review.

Archie also noted that Cabinet’s decision to favour smaller contractors was permitted.

Stating that the court could not question the policy unless it is discriminatory, Archie said: “Once it acts within parameters that are not clearly irrational or arbitrary, the remedy for misjudgement lies in the ballot box and not the courts,” Archie said.

The companies were represented by Fyard Hosein, SC, Rishi Dass and Anil Maraj while Gilbert Peterson, SC, Kerwyn Garcia and Vishma Jaisingh State.