Sogreah Consultants SAS v The Wastewater
Management Authority & ORS
2006 SCJ 208
CHAMBERS
IN THE SUPREME COURT OF MAURITIUS
In the matter of:
Sogreah Consultants SAS
Applicant
v
The Wastewater Management
Authority & Ors
Respondents
In presence of:
The Hon. Attorney-General
Co-Respondent
JUDGMENT
The Wastewater Management Authority is, by virtue of
the Wastewater Management Act, vested with the statutory
responsibility for the wastewater sector in Mauritius.
It is thus responsible for the management and control of
wastewater works and the implementation of projects.
In March 2004, the respondent
No. 1 invited proposals for a contract for consultancy
services in connection with
the ‘Plaines Wilhems Sewerage project’. The
applicant submitted an ‘offer’ in June 2004.
Respondent No. 3 and respondent No. 4, acting together
as a joint venture, also submitted an offer. It is being
contended by the applicant that:
(1) it has complied with all the conditions prescribed
by respondent No. 1 and it has made the best offer;
(2) it has scored the highest score by a wide margin in
all the four evaluation exercises which were carried out
between September 2004 and February 2005;
(3) respondent No. 3 and respondent No. 4 did not obtain
the required marks at the first evaluation and were not
even considered for the subsequent evaluations;
(4) respondent No. 3 and respondent No. 4 have not complied
with all the requirements of the tender and have made a
worse score than the applicant;
(5) the applicant has been unfairly eliminated and ousted
by the respondent No. 1 who, for no valid reason and acting
against the established principles for the allocation of
tender, has set aside the tender of the applicant in favour
of a less deserving tenderer; and
(6) respondent No. 1 and respondent No. 2 are not securing
to the State and the public the best value in terms of
price and quality, having regard to the specifications
of the tender.
The applicant is thus praying for the issue of an interlocutory
injunction to restrain respondent No. 1 and respondent
No. 2 from proceeding with the allocation or award of the
contract.
The averments of the applicant are being strongly contested
by the respondents who have maintained that a proper evaluation
exercise had been carried out by the Independent High Powered
Evaluation Committee in accordance with the applicable
instructions, terms and conditions.
Clause 1.5.2 of the ‘Instructions to Tenderers’ mentions
that persons, companies or firms shall not be eligible
for the award of the contract where ‘(g) they have
any direct or indirect association with Montgomery Watson
Harza and/or Gibb (Mtius) Ltd’. The reason for including
such a condition was to avoid conflict of interest arising
from involvement and services rendered by key personnel
in a previous connected contract (Contract WW67X). It was
the contention of the respondents that three engineers
proposed by the applicant and who belonged to their key
personnel were and are still on the payroll or establishment
of Gibb (Mtius) Ltd and were thus disqualified. Consequently,
on the basis of legal advice, the ‘Committee’ concluded
that ‘the three key personnel fall under the category
of individual/freelance experts and as such were not eligible
to work on the project’. It has also been submitted
by the respondents that the representative of the applicant
has acted in breach of the Deposit of Powers of Attorney
Act, the applicant is guilty of laches in view of the delay
in lodging its main action and has failed to come with
clean hands by concealing relevant and material facts.
I hardly need to stress
that I need not at this juncture make any final determination
with regard to the merits
of the issues raised and this on the basis of the bulky
affidavit evidence and documents which have been seriously
questioned. It clearly emerges from an analysis of the
evidence that the applicant has been able to put forward
a good arguable clam and has been able to establish that
there is a serious question to be tried in respect of its
disqualification and ineligibility. The legal advice on
which the Committee acted was substantially to the effect
that any individual/freelance expert who had previously
worked on the Contract WW67X will not be eligible to provide
his/her services on Contract WW79X (the present contract).
It is far from being clear on what criteria, if any, did
the Committee base itself in order to determine that the
applicant’s engineers fell under the category of
individual/freelance experts who had to be disqualified.
It is apposite to note, in that respect, that a person
who is an ‘Expert/Supporting Staff or Expert/Staff
Team Specialist’ would be eligible to provide services
on the present contract even though he had worked on the
previous contract subject to the conditions that ‘(1)
he shall be in the sole employment of the tenderer for
the period he will be deployed under the Contract WW79X.
(2) he provides details regarding his employment at the
time he will provide his services under the WW79X Contract.
The applicant was ousted from the contract on the ground
that the 3 key personnel were considered to be individual/freelance
experts. The applicant has established that there is a
serious issue to be tried in the absence of well-defined
or established criteria upon which respondent No. 1 was
shown to have acted before reaching the conclusion that
the 3 persons were individual/freelance experts who ought
to be disqualified.
There are additional grounds
showing that there is a serious question to be tried.
It has been averred on behalf of
respondent No. 1 that the applicant has seriously breached
section 2.2. of the Request for Proposals under the title
of ‘Covenant of Integrity’. Some internet extracts
had been annexed in an attempt to show that the applicant
may have been involved in some bribery scandals. The applicant
has a good argument that respondent No. 1’s board
may have been acting on wrong premises in that regard since
there would be a breach of section 2.2 of the ‘Covenant
of Integrity’ only where a director, employee or
agent ‘has been convicted in any Court of any offence
involving a Prohibited Practice in connection with any
tendering procedure’. This does not appear to be
the case here.
The High Powered Committee also found that 2 of the tenderers
had failed to meet with the requirement to submit a written
agreement with the sub-contractor where the percentage
of sub-contracting is over 10% of the tender price. Respondent
No. 3 was one of the tenderers. Further, respondent No.
1 has failed to account for the delay in the evaluation
process although the offers had been made as far back as
June 2004. Although it has been denied that there were
4 evaluation reports which were decidedly in favour of
the applicant as averred by the latter, we have been left
in the dark as to what happened during the long lapse of
time from June 2004 until 14 April 2005 when the High Powered
Committee was finally seized with the matter and had its
first meeting in order to evaluate the bids.
Whatever may be the strength
of the applicant’s
case and their prospect of success in their Judicial Review
case, the evidence, however, plainly shows a strong countervailing
public interest which weighs heavily against the granting
of the interlocutory order.
Where a public authority
is involved, ‘one must
look at the balance of convenience more widely, and take
into account the interests of the public in general to
whom these duties are owed’ (Smith v. Inner London
Education Authority [1978 All ER 411]) and Sierbien v.
Westminster City Council [1987 86 LGR 431]. The extent
to which the disadvantages of each party would be incapable
of being compensated in damages, in the event of success
in the main action, is always a significant factor in assessing
where the balance of convenience lies. There is no sufficiently
strong indication of any potential prejudice here, otherwise
than of an essentially pecuniary nature, which can result
from the loss of the contract by the applicant.
Independently of this fact, the question as to the adequacy
of damages as an adequate alternative remedy would not
be highly relevant in the present case which involves the
public interest and where respondent No. 1 is a public
body performing public duties. (R. v. Secretary of State
for Transport, exp. Factortame Ltd. (No. 2) [1991 1 A.C.
603, 672-3]). The following facts which are not in dispute
set out the compelling public interest against the granting
of the order which will have for effect to jeopardise the
implementation of a major project of significant public
importance:
(1) The contract is for the implementation of the Plaines
Wilhems Sewerage Project which concerns the transport,
treatment and disposal of wastewater affecting a substantial
percentage of the population.
(2) The first component of the project, which comprises
the trunk sewer is ongoing and is scheduled for completion
by February 2008.
(3) The Consultancy Services for the present contract
are tributary to the trunk sewer.
(4) Any further delay in the award of the contract may
adversely affect the continuation of the programme and
other contracts for which funds have already been secured
from funding agencies at concessionary rates.
(5) The project forms part of the National Sewerage Programme,
whose objectives are:
(a) to halt and reverse the trend of wastewater pollution
on the island and its coastal zones; and
(b) to improve the health and sanitation conditions of
the population.
(6) Any further delay is likely to be disruptive and result
in significant financial loss. No undertaking as to damages
has been offered.
It has thus been established that the balance of convenience
overwhelmingly lies in favour of the project being continued
to its prompt completion in the public interest. I find
that it will be neither just nor convenient to grant the
injunctive relief in the circumstances and the grant of
an injunction at this stage would entail a greater risk
of injustice than its refusal.
The application is accordingly set side. With costs.
I certify as to Counsel.
A. Caunhye
21 August 2006 Judge
For Applicant : Mr Attorney F. Hajee Abdoola
Mr. Y. Aboobaker, S.C.
For Respondent No. 1: Mr. Attorney P. Rangasamy
Mr. R. Peeroo, of Counsel
For Respondent No. 2 Ms S.D. Sonah, Principal State Attorney
& Co-Respondent: Mr.
I. Maghooa, Ag. Asst Parliamentary Counsel
For Respondent Nos. 3 & 4:
Mr. Attorney F. Hardy
Mrs. A. Juddoo-Proag, of Counsel
