North Star Industries, Inc., represented by its authorized officials, of the City of Monrovia, Liberia. COMPLAINANT VERSUS Ninba County Administration, by and thru Superintendent. 1ST RESPONDENT AND Western Steel and Allied Industries (Liberia), Inc. 2ND RESPONDENT
Heard: November 16, 2016.
Decided: February 28, 2017
Counsellor Albert S. Sims of Sherman and Sherman, Inc. appeared for the appellants. Counsellors T. Negbalee Warner and Charles D. Karmo of Heritage and Partners, Inc. appeared for the appellees.
MR. JUSTICE BANKS delivered the Opinion of the Court.
This is the second time that this Court is called upon to resolve issues of dissatisfaction by the appellant, Western Steel and Allied industries (Liberia) Inc. The appellant alleged that the Public Procurement and Concession Commission (PPCC) and the Complaints, Appeals and Review Panel (CARP) had irregularly handled the matter of the bidding exercise placed before them as well as appellant’s displeasure and disagreement with the award of bids made by the Nimba County Procurement Committee (NCPC) in connection with unused structures and scrap metals within the Arcelor Mittal Concession area in Nimba County. The first appeal was taken to this Court from the ruling of the Justice in Chambers. In that ruling, the Justice had denied the petition for the issuance of a writ of prohibition against the awarding of the bid contract to North Star Industries, Inc. The primary contention of the petitioner/appellant, Western Steel and Allied Industries (Liberia) Inc., was that it had been denied the right of due process of law by the CARP. The Justice in Chambers, although agreeing that the petitioner had made a case for due process, denied the writ because of the petitioner’s failure to comply with the requirement of the law for the issuance of the writ and especially since the petitioner had already taken an appeal from an administrative ruling which he said the petitioner should pursue. The Supreme Court, whilst agreeing with the Justice in Chambers that challenge by the appellant to the appeal taken by the Co- appellee, North Star Industries, Inc. from the decision of the Bid Evaluation Panel (BEP) and the Nimba County Procurement Committee (NCPC) lacked legal merits, noted that the Justice had acknowledged that the petitioner was not accorded the opportunity of the due process of law in the hearing of the appeal before
CARP, and therefore decided that in the interest of justice and fair play the petition for the writ of prohibition should be granted and the petitioner accorded the opportunity of a hearing into the appeal taken from the decision of the PPCC. It was from that new hearing by CARP, directed by this Court, that the petitioner believed to be in error and from whence it appealed to the Circuit Court, Sixth Judicial Circuit, Montserrado County, for judicial review. That judge presiding by assignment over that court, after a hearing of the petition for judicial review, believing that the due process of law directed by the Supreme Court had been accorded to the petitioner and that CARP had not erred in its decision that as the scoring patterns adopted by BEP and NCPC were irregular a new examination should be held, ruled sustaining the ruling made by CARP. Hence, he denied the petitioner’s petition. The appellant/petitioner, not being satisfied with the ruling of the trial judge, excepted thereto and announced an appeal to this Court. Hence, for the second time, we are called upon to resolve the core issue of due process to be accorded to Western Steel, as directed by the Supreme Court. This exercise will include examination of matters surrounding the award of the bid contract by PPCC to North Star Industries, Inc. This time, however, rather than dwelling on procedural issues, as we did in the previous appeal, we are called upon and shall accordingly concentrate on the substance of the appeal, which is to delve into bidding process conducted by the public institutions, co- appellees herein, determine whether in fact the bid was legally awarded to co- appellee North Star Industries, Inc. and ascertain therefrom if the trial judge was in error in affirming the ruling made by CARP. In order to make that determination, we believe it important that we capture, firstly, the ruling made by the trial judge and, secondly, the allegations set forth in the bill of exceptions filed by the appellant. Indeed, a recital of the two instruments obviates the need to recite the documents filed before the administrative bodies since the judge’s ruling recites and incorporates into the ruling the most critical of the documents filed with the administrative bodies and embodies the basic contentions of the parties made before those bodies. Here is what the trial judge set out as the basis for his agreement with the CARP:
The brief history of this case before this court for judicial review is as follows:
The petitioner herein, Western Steel and Allied Industries Liberia, Inc. and the North Star Industry Inc. participated in a bid, predicated upon an invitation to bid, dated November 18, 2013, which said invitation was posted by Nimba County in the Monday, November 18, 2013 edition of the Daily Observer Newspaper. Nimba County, in said invitation to bid, solicited bid for the purchase, removal, and disposal of all unused structures and scrap metals, located in Nimba County. Both the petitioner and Co- defendant North Star participated in said bid, and both of them presented their bid to Nimba County procurement committee. Both the petitioner and Co- respondent North Star Industries Inc. attended the opening of the bid on December 31, 2013 in the conference room of the Nimba County administration building in Sanquellle. The bid evaluation panel of Nimba County evaluated the bids of both the petitioner and Co- respondent North Star and notified the petitioner on February 12, 2014 declaring the petitioner as the most responsive bid and therefore declared the petitioner as the winner of the process. The records before this court show that Co- respondent North Star Industries Inc. wrote a letter dated February, 20, 2014 to the Superintendent of Nimba County and chairman of the Nimba County Procurement Committee, protesting to the bid evaluation panel which declared its bid as not responsive. Co- respondent North Star alleged in its protest letter that it had reliable information that the report emanating from the evaluation panel to the procurement committee was not signed by its chairman and a second person due to irregular scoring patterns. Copy of this February 20, 2014 protest letter was sent to the Executive Director of the Public Procurement and Concession Commission and the complaints, appeals, and review panel. The records also show that co- respondent North Star also wrote a protest letter on the 20th of February 2014 to the Public Procurement and Concession Commission protesting that the Nimba Procurement Committee’s decision denouncing its bid as not responsive. Paragraph two of that letter alleged that co- respondent North Star reliably learned that the report from the bid evaluation panel which was submitted to Nimba Procurement Committee on February 4, 2014 was not signed by the chairman of the panel and that another panelist did not sign said report due to scoring patterns by the other three panelists, that was grossly inconsistent with fact and observations clearly started in the panel chairman’s due diligence findings.
Notwithstanding co- respondent North Star protest letter of February 20, 2014 to the Nimba County Procurement Committee, on the 21st day of February 2014, the petitioner was invited as winner of the bid for discussion and negotiation leading to signing of the contract. On the 20th day of March 2014 co- respondent North Star wrote the Executive Director of the Public Procurement and Concession Commission complaining the Nimba County Procurement Committee for its failure to investigate the protest letter of co- respondent North Star dated February 20, 2014. On the 30th day of April 2014 the Chairman of the complaints, appeal and review panel, Cllr. Beyan
5, 2014 which provided the requested information. On the 13th day of May 2014 the Chairman of CARP acknowledged receipt of the Nimba County Procurement Committee letter dated May 5, 2014, and observed therein that the complaint of Co- respondent North Star dated February 20, 2014 was not investigated by the Nimba County Procurement Committee due to the county leadership which was in transition which unable the county procurement committee to investigate the complaint. CARP then gave the Nimba County Procurement Committee fourteen days to conduct an investigation that the outcome of the said investigation being communicated to North Star and copy thereof be submitted to CARP through the Chief Executive Officer of the Public Procurement and Concession Commission. CARP also halted the Nimba County Procurement Committee to hold on to all processes leading to the award of the contract pending the conclusion of said investigation. The Nimba County Procurement Committee conducted its investigation and informed Co- respondent North Star in a letter dated May 29, 2014 of its decision to confirm the petitioner as winner of the bid. The records further show that co- respondent North Star communicated with the PPCC in a letter dated June 4, 2014, reminding the PPCC of its earlier letter sent relative to its protest to the decision of its bid which was declared non- responsive, and appealed to the PPCC to investigate the merit of its complaint. PPCC sent this letter to its complaints, appeals and review panel (CARP) to conduct an investigation into this matter. CARP then conducted its investigation and invalidated the decision of the bid evaluation panel against the North Star, and ordered that a new bid panel be constituted to conduct another evaluation of the two bids at new. A new evaluation panel was then established consistent with CARP’s decision and mandate which declared North Star most responsive and winner of the bid and the petitioner as non- responsive by a letter dated July 30, 2014. The petitioner expressed concern by a letter dated August 14, 2014 at the decision of the committee reversing its previous decision declaring petitioner as winner of the bid. The Nimba County Procurement Committee informed the petitioner that it reevaluated the bids based upon the decision and mandate of CARP. Petitioner then flew to the Chambers Justice of the Supreme Court of Liberia and an alternative writ of prohibition was issued, heard and granted, which ruling of the Chambers Justice was confirmed by full bench of the Supreme Court. The Supreme Court adjudged as follows: “That the appellant/petitioner, Western Steel and Allied Industries Liberia, Inc. was denied the right to due process of law when the appellees/ respondents, without issuing notice and service thereof on Western Steel and Allied Industries Liberia Inc. as party of real interest, conducted a hearing and thereupon set aside the status of appellant/petitioner as “most
responsive” and therefore not winner of the competitive public bidding for the purchase, removal and disposal of old, unused structures and scrap metals within the Arcelor Mittal Concession area, in Yekepa, Nimba County, Republic of Liberia.
That under the compelling circumstances of this case, appellant/petitioner’s petition for a writ of prohibition will lie.
Accordingly, first, second, third and fourth appellees/respondents are returned to status quo; that is, as at the time appellant/petitioner, Western Steel and Allied Industries Liberia, Inc. was declared winner of the bid for the second time, and therefrom, conduct a hearing into the complaint lodged by North Star Industries, Inc., co- appellee/third respondent.”
Pursuant to the mandate of the Supreme Court, CARP resumed jurisdiction over this matter and investigated same as mandated by the Supreme Court of Liberia. On the 23rd day of October 2015 CARP ruled in this matter and we here under quote a portion of this ruling for the benefit of our ruling:
OPINIONS/FINDINGS
Wherefore and in view of the foregoing facts and laws, it is the opinion of the Independent Complaints, Appeals and review Panel of the Public procurement and Concession Commission of the Republic of Liberia and that the Bid Evaluation Panel of Nimba County was in violation of the PPCC Act of 2000, when she awarded irregular scores to the bidders irrespective of meeting the criteria alike which led to the refusal of the Chairman of the Bid Evaluation panel to sign the report of the Panel. The CARP believes that the bone of contention is not in the presentation of Bids, but in the way scores were allotted/awarded. As such, if different eyes and minds took a fresh look at the scores, different result would be obtained.
RULING
Accordingly, the Complaints, Appeals and Review Panel (CARP) nullifies the decision of the Bid Evaluation Panel against the North Star Industries, Inc. The Nimba County Administration is hereby ordered to constitute a new Bid Evaluation Panel to conduct evaluation of all bids de novo and present a report to the Parties not later than fifteen (15) days as of the receipt of this Ruling. And it is hereby so ordered.”
It is from this ruling of the CARP that the petitioner excepted to, announced an appeal and filed a petition for judicial review before this Honourable Court on the 3rd day of December 2015 which was amended on the 11th day of December 2015. Counts ten (10), eleven (11) and twelve (12) of the petitioner’s petition are relevant and hereunder quoted for the benefit of our ruling:
“10. Petitioner says that the Ruling of the Co- respondent CARP is erroneous because the panel failed to consider the matter before it. Petitioner submits that the PPCC having mandated the Nimba County Procurement Committee to conduct an investigation into the complaint of North Star, and the County having conducted said investigation and submitted its findings in its report of May 29, 2014, what should have been considered by CARP as an appeal from the County’s Report, and the issue of whether or not the Report was consistent with law. Section 126 of the PPCC Acts lays out the procedures for an appeal to be heard by CARP. Subsection (2) provides inter alia, first the request for appeals must (emphasis ours) be filed with the Executive Director for the commission for the attention of the Complaints, Appeals and Review panel. Further, that a Complainant requesting an appeal must (emphasis ours) deliver a copy of the request for appeal to the relevant
11 Petitioner says further that the issue of the scoring pattern as contended in Co- respondent North Star’s protest letter of February 20, 2014, was investigated by the Nimba County Procurement Committee as mandated by CARP. In its investigation into North Star’s Complaint, and in deciding whether or not the scoring patterns adversely affected the bid of Co- respondent North Star, the Nimba County Procurement Committee adopted a scenario where both bidders were assigned the maximum point of five for each item, except the quoted offered price for the scrap metals. The Committee determined that because Western Steel’s offered price being higher than North Star’s, Western Steel’s bid was indeed more responsive; Your Honor is requested to take judicial notice of the May 29, 2014 report of the Nimba County Procurement, which is a part of Petitioner’s Exhibit P/3.
That the Procurement Committee having settled the issue of the scoring pattern, it was erroneous for the Complaints, Appeals & Review Panel to again send the matter back to the same Committee for a re-evaluation. Petitioner submits that nothing is going to change since it is the bid proposals which were submitted by the both petitioner and Co- respondent North Star in December 2013. It is worth mentioning that the bid is a commercial bid for the Nimba County’s sale of its scrap metal so, obviously, the bidder who offers the highest price for the purchase of the scrap should be the winner, especially when both bidders are equal on all other required aspects of the bid. Petitioner submits that there need be no further evaluation for the bid and the Co- respondent North Star having failed to appeal from the decision of the Nimba County Procurement Committee, CARP should have entered a Ruling confirming the ruling of the Procurement Committee and further confirm petitioner as the winner of the bid. For CARP to do otherwise, was erroneous and prejudicial and for which reason, Judicial Review will lie. And this petitioner so prays.”
The Respondent North Star Industries Inc. filed returns on the 18th day of December 2015. We hereunder quote counts one, two, three, four, twenty- three, twenty- four and twenty- six for the benefit of our ruling.
“1. That as to the entire petition, co- respondent says that same is a fit subject for dismissal because this court is without jurisdiction to review a matter or point decided by the Supreme Court, which is what the petition
respondent says that while the facts narrated do not present any traversable issues, co- respondent says that the expressed admission of the petitioner that “CARP resumed jurisdiction over the mater and proceeded to hear the appeal Co- respondent North Star is a categorical admission by petitioner that CARP had jurisdiction and that co- respondent had indeed filed an appeal after its initial complaint. Co- respondent further says that where the jurisdiction of CARP is not contested, a petition for judicial review will lie only if the ruling of CARP was clear arbitrary or without any basis in law or facts, which is not the situation in this case. It is obvious that a petition for judicial review cannot question jurisdiction duly acknowledged, conceded to and never challenged by the petitioner up to the end of the administrative hearing in question.
That as to count ten (10) (actually count 8) of the petition, Co- respondent submits that the averments are false and legally baseless, and should therefore be denied and dismissed. Co- respondent North Star says that in keeping with PPCC Act, initial complaints are cognizable before the procuring entity, and not before CARP, but where the initial complaint is not heard by the procuring entity, the complaining party has statutory right to file or move its complaint to the PPCC. It is for this reasons that the PPCC does not only have a panel to hear appeals, but have a “Complaint, Appeals and Review Panel (CARP), which hears (i) complaints; (ii) appeals, and (iii) reviews. In any case, the petitioner is guilty of inconsistent pleading in that it concedes that CARP had jurisdiction, but contends that co- respondent never filed a complaint. If Co- respondent North Star never filed any complaint, under what provision of the PPCC Act did CARP acquire the jurisdiction it had and/or “resumed”, as expressly acknowledged by the petitioner?
26 Further to count twenty- five (25) above, co- respondent says that the provisions of Section 126 of the PPCC Act are clear. Section 126 subsection (2) and (5) of PPCC Act states as follows:
Further Review by the Complaints, Appeals and Review Panel.
“(2) A complainant may (1) request the Complaints, Appeals and Review Panel decide the complaint if the relevant entity does not issue a decision within fifteen (15) days of the complaint being filed for (ii) file with the Complaints, Appeals and Review Panel an appeal of a decision of the relevant entity. All requests for decision and appeals to the Complaints, Appeal and Review Panel under this section 126, and all other fillings or submissions relating thereto, must be filed with the Executive Director of the Commission for the attention of the Complaint. Appeals and Review during regular office hours of the Commission. In the case of a request for a decision by the Complaints, Appeals and Review Panel upon the failure of the relevant entity to respond by the due date for resolution of the complaint, the request must be filed on a business day within ten (10) days after such due date. In the case of an appeal; from an adverse decision by the relevant entity, the appeal must be filed on a business day within ten (00) days after the date of the decision of the relevant Entity. A complainant requesting a decision on a complaint or filing an appeal under this section must deliver a copy of the request for appeal to the relevant Entity at the location specified in subsection (2) of Section 125 of this Act at substantially the same time as filling with the Complaints, Appeals and Review Panel.
(5) The complaint forwarded to the Complaints, appeals and Review Panel
with a request for decision may not raise new claims or evidence not presented in the complaint filed under Section 125. Appeals shall state the facts and law relied upon to establish that the initial decision of the procuring or concessions entity was erroneous and may not raise new claims or issues that were not within the scope of the initial complaint or the decision being appealed.
Co- respondent submits that the unequivocal provision of section 126 of the PPCC Act defeats petitioner’s argument. Co- respondent contends that it complied with the dictates of the referenced subsections (2) and (5) of Section 126. Co- respondent says that it filed its complaint with the Complaints, Appeals and Review Panel, by and through the Executive Director on March 20 when the procuring entity, Nimba County, failed to issue a decision to its complaint filed with that body on February 20, 2015 within fifteen (15) days as required by Section 126 (2i) of the PPCC Act. Co- respondent submits that by filing its complaint with the PPCC in keeping with Section 126 (2i), only the PPCC, by and through CARP, could then hear and determine the complaint and not the procuring entity, since the procuring entity had lost its jurisdiction by operation of Section 126 (2i).”
The pleadings and arguments before this court present the following issues which are dispositive of this case:
Whether or not the Supreme Court of Liberia decided the jurisdiction of the CARP over Co-respondent North Star’s complaint?
Whether or not the CARP proceeded wrongly in hearing the complaint subject of this petition for Judicial review and therefore the ruling is reversible?
We address the issues in the order presented.
As to issue number one, which is Whether or not the Supreme Court of Liberia decided the jurisdiction of the CARP over Co- respondent North Star’s complaint, we answer in the affirmative. In its ruling in the case: Western Steel and Allied Industries Liberia, Inc. versus The Public Procurement & Concession Commission, et al., decided August 13, 2015, the Supreme Court en bane upheld the ruling of the Chambers Justice regarding the legality of North Star’s Complaint before the CARP and CARP’s jurisdiction over the complaint as follows:
In his Ruling dealing with this issue, and with which position of Mr. Justice Banks we are in full agreement, he stated thus:
“A reading of the complaint letter shows that it did indeed satisfy the requirements of Section 125 (3) (c) of the PPCC Act. The letter needed to firstly state with acceptable clarity the circumstances upon which the third respondent sought to establish the existence of a violation of the Act in the second paragraph, the third respondent clearly describes the allegation of wrongdoing. It explains the improprieties that occurred during the bid evaluation stage, and specifically the inconsistent scoring patterns by three panelists, which it considered so appalling that the remaining two panelists, including the panel chairman, refused to sign the Nimba County Bid Evaluation Report. This depiction of the events is not a mere general allegation of wrongdoing;… By alleging that the scoring pattern was erratic and showed inconsistencies in the criteria across bidders, the clear implication was that the Bid Evaluation Panel did not fulfill its statutory obligation under Section 30 (c), to evaluate all of the bids “in accordance with the pre- determined and published evaluation criteria as outlined to bidders”.”
Further, in the concluding part of the opinion, the Supreme was very
clear in its decision that the failure by the NCPC to investigate the complaint led to the transfer of jurisdiction to CARP. The concluding part also touched the issue of the complaint not being served. In the concluding part, the Supreme Court said:
“Under the facts and detailed circumstances of this case, the other piece of the consolidated question is whether prohibition will lie. There is absolutely no doubt that the Liberian Constitution (1986) guarantees every person, natural or juridical, certain basic rights, amongst which is the right to “due process”. See: Article 20 (a) of the Liberian Constitution. It commands that: “No person shall be deprived of life, liberty, security of the person, property, privilege or any other right except as the outcome of a hearing judgment consistent with the provisions laid down in this Constitution and in accordance with due process of law.” This provision seems to me the foundation upon which every legal proceeding stands and without which all legal proceeding falls. The most cardinal element of this principle, as articulated by Mr. Chief Justice Louis Arthur Grimes in the famous case Wolvo v Wolvo, 5 LLR 423, 428- 429 (1937), is notice.
In our jurisdiction, nothing legal can be properly done to bind a person without first issuing a notice and service thereof on a party involved in a dispute. In the instant case, there is no showing of a single notice and service thereof on the Petitioner. The Chambers Justice certainly recognized in his ruling of February 12, 2015, that no such notice was issued and served on Petitioner Western Steel to said petitioner’s material prejudice and in flagrant disregard of the law of the land, and that for this breach, the writ of prohibition shall properly issue.”
It was predicated upon the foregoing that the Court then proceeded to amend or modify the ruling of the Chambers Justice and to grant the peremptory writ of prohibition. Here is how the Court set out the grant of the wit:
“Therefore, we have here amended the Ruling of our Esteemed Colleague, then presiding in the Chambers of the Supreme Court, by granting the peremptory writ of prohibition. Consequently, First, Second, Third and
Fourth appellees/ respondents are hereby returned to status quo. By this, we mean that the appellant/petitioner is reinstated to the status of winner of the public bidding for the purchase, removal and disposal of old, unused structures and scrap metals within the Arcelor Mittal concession area in Nimba County, Republic of Liberia. Following the reinstatement of the appellant/petitioner, Western Steel and Allied Industries Liberia Inc., a hearing shall be conducted consistent with law of the land into the complaint lodged by co- appellee/third respondent, North Star Industries, Inc.”
This Court is therefore clear in its mind that the appellant could not raise the same issue of the jurisdiction of CARP to entertain the appeal because Co- appellee North Star had not met the appeal requirements. Indeed, count 8 of the petition filed with the lower court for judicial review of the decision of CARP clearly set out, after reciting all of the facts of the case that had occurred up to the point of the Supreme Court’s decision acknowledged that the only basis for appellant resorting to the Supreme Court was that CARP had made its July 30, 2014 decision, upon which the Nimba County Procurement Committee had proceeded to re- evaluate the bids and declared North Star as the most responsive, thus reversing its earlier decision which had declared the appellant as the most responsive.
We believe that the confusion generated in the matter and which may have formed the basis for the assertion made by the appellant that it was the May 29, 2014 decision of the Nimba County procurement Committee that should have been appealed to CARP, and not the February 12, 2014 decision, was due to how the CARP had initially handled the appeal taken to CARP by Co- appellee North Star.
We find it rather strange that a complaint will be lodged against acts of a body and the body is directed to investigate the complaint, but that an investigation is said to have been conducted without a hearing been had in which the complainant is invited to state the basis for the complaint. We wonder if such act is not tantamount to the denial of the due process right, the same as this Court had earlier determined that the failure of CARP to accord the appellant the opportunity the right to defend against the appeal was a denial to the appellant of its due process of law right. The Constitution of Liberia accords to all the equal protection of the law and this Court has consistently said that the provision must be respected buy all. Republic v. The Leadership of the Liberian National Bar Association, 40 LLR 635 (2001); Toe v.
PrintPage Africa Newspaper, Supreme Court Opinion, March Term, A. D. 2013. We believe that it was clearly an error, therefore, for NCPC to have conducted an alleged investigation into North Star’s complaint without according the complainant the opportunity to be heard or to present its case in respect of the said complaint.
Finally, on the issue of the jurisdiction of CARP, this Court must clarify, in the face of the misinterpretation of its mandate by the appellant, that its mandate was not directed to the NCPC. Rather, the Mandate was directed to CARP. It was that body that had deprived the appellant of the opportunity of the due process of law when it failed to cite the appellant to defend against the appeal that was taken to CARP against the decision of NCPC. The argument before this Court in the prohibition proceedings was not that CARP did not have jurisdiction over the case. Rather, the issue was that the appellant was never invited or cited to defend against the appeal before CARP proceeded to make a decision reversing the ruling of the NCPC. As noted above, amongst other things, it was the NCPC that had forwarded the matter to CARP for its consideration, without the objections of any of the parties thereto. It was that matter, pending before CARP, that had been disposed of without according the appellant the opportunity to appear and defend against the appeal. Hence, the mandate of this Court was directed at CARP to resume jurisdiction over the case and to proceed with the hearing of the appeal, ensuring that the parties were accorded their due process of law right. That right was accorded to and enjoyed by the parties. The parties appeared and defended their respective positions, which did not include the jurisdictional issue later raised by the appellant in its petition for judicial review of the ruling made by CARP. Hence, it is the holding of this Court that its mandate was fulfilled by CARP. The only inquiry, therefore, for this Court to resolve is whether the decision made by CARP after the investigation, carried out in obedience to the mandate of the Supreme Court, is supported by the records, for it is that decision that forms the crust of this appeal, the jurisdictional issue having been dealt with. In response to the inquiry, this Court holds that the decision of CARP is supported by the records before us. Accordingly, we affirm the decision of CARP, but with modification and for reasons which we set out below.
In its February 20, 2014 letter of complaint to the NCPC, North Star accused three of the members of the Bid Evaluation Panel of conspiracy in the scoring patterns designed to deny it the chance of winning the bid, which had caused the Chairman of the Bid Evaluation Panel and another member to refuse to affix their names and signatures to the report. It was this complaint that the NCPC failed to investigate and hence caused North Star to appeal the matter to CARP. In its appeal to CARP, North Star expanded on the violations which it said the BEP had committed, including the following:
(1) The on February 20, 2014, North Star, in compliance with the PPCC Act, filed a letter of protest with the NCPC which was not investigated or responded to within fifteen (15) days of the date of the letter, as required by the PPCC Act, thus causing North Star to exercise the right of appeal to CARP, as provided by the PPCC Act.
(2) That the report submitted to the NCPC by the BEP was signed by the Co-Chairman of BEP, one of the three (3) panelists who had rendered “unsubstantiated scoring patterns” and who it had accused of conspiracy.
(3) That the Chairman and another member did not sign the submission made by the BEP to NCPC because they sense collusion and prejudice in the scores delivered by the other three panelists.
(4) That the scoring patterns of three of the five panelists were in contradiction to the facts and observations that were clearly stated in the Panel’s Chairman’s Due Diligence Finding.
These were the appealed accusations which CARP had directed the NCPC to investigate and which, as stated before, the NCPC alleged it had undertaken, but which the records show were not carried out as directed and which necessitated CARP to review the report submitted therefrom by the NCPC to CARP for its consideration. We note from the records however that although in his communication to NCPC, the Chairman of CARP noted the allegations levied against the BEP and NCPC and directed that an investigation be held into the said complaint, the NCPC, rather than investigating the matter on the merits of the claims (i.e. the scoring patterns, the conspiracy accusations, and the refusal of the Chairman and another member to have their names and signature affixed to the BEP report and the
basis for the refusal) limited itself instead to insignificant procedural technicalities, on vague references to lower and higher bid prices, and review of the Bid Evaluation Format and Predetermined and Published Evaluation Criteria.
These were the issues and the contentions that formed the basis for the action taken by the CARP when the matter was again forwarded by the NCPC to CARP for its further consideration. They formed the basis for CARP’s reversal of the prior determinations made by the BEP and NCPC, based upon which CARP ordered a new examination which resulted into Co- appellee North Star being awarded the bid contract. However, because CARP had made its decision without according Appellant Western Steel the opportunity to appear and contest the issues, this Court, in the prohibition proceedings, ordered and mandate CARP to resume jurisdiction over the case and accord the appellant its due process of law opportunity to be heard. The records before us reveal that upon CARP resuming jurisdiction of the case, the parties were duly cited and allowed the opportunity to address the issues. It was upon this new hearing, undertaken by CARP as mandated by this Court, that a new decision was reached by CARP wherein it again invalidated the earlier awards made to the appellant and ordered that a new examination be conducted into the bidding patterns and a winner announced. These were the elements that formed the basis for the decision of the NCPC in reaffirming the award to the appellant. But what was core and remained core was how the NCPC had reached the conclusion, for it was the backdrop for the basis for the conclusion that CARP disagreed with and ordered that a new bidding process be undertaken. It is from that decision that the appellant filed a petition for judicial review. It is the decision of the lower court judge denying the petition that the matter is before this Court for the second time.
The first focus of this Court is whether in fact the appellant was accorded its due process of law by CARP, as mandated by this Court. We should emphasize that the Mandate of this Court was addressed to CARP and to no other party. The records reveal that CARP, upon receipt of the Judgment and Mandate of this Court, invited the parties for the reading of the Mandate; that upon the reading of the Mandate, CARP resumed jurisdiction over the case as directed by this Court; that upon resuming
jurisdiction, CARP heard the case; that during the hearing, the appellant and the other parties to the case were represented; and that all legal contentions were considered and disposed of by CARP. As such, the appellant was not denied its right to due process of law by CARP during the hearing that produced the ruling of October 23, 2015. Therefore, the appellant’s argument and contention that it was denied the right to be heard by CARP fails.
The other issue which the appellant raised, that CARP should have limited its examination of the matter to the May 29, 2014 decision by the NCPC and not the original complaint, is without any justification. The Supreme Court, in its earlier decision, had already stated that the failure of the NCPC to have responded to the appeal of the co- appellee was the basis for the transfer of the matter from the NCPC to CARP. That since the matter before CARP was the complaint on the scoring patterns, CARP could not have legitimately limited itself to the decision of May 29, 2014 by NCPC. Instead, since the NCPC had failed to consider and dispose of the issues raised in the February 20, 2014 complaint, CARP had to examine the entire record of the bid evaluation process and the allegations levied by North Star against the BEP. The appellant’s contention that the only issue before CARP was the decision of the NCPC found in the May 29, 2014 letter is, therefore, totally misplaced. The failure of the NCPC to have complied with the procedure for complaints, and its failure to timely respond to the complaint made to it by Co- appellee, was the basis for CARP to assume jurisdiction to hear the case as original complaint and not as an appeal. In other words, the NCPC’s dereliction of duty was the reason for the invocation of Section 126 (2) (i) of the PPCC Act. In such case, CARP was not only authorized to review the complaint but had the responsibility to examine the entire gamut of the issue(s) raised in the complaint. Thus, the CARP did not violate any law in examining the complaint in its entirety, and consequently, the trial judge’s ruling that the CARP did not err in proceeding to review the complaint in its entirety rather than limiting itself to the NCPC’s May 29, 2014 report is in accord with the law and the facts.
Finally, upon reviewing the scoring patterns, the due diligence reports, the qualifications and experience of the bidders, and the specific requirements, we find that the refusal of the Chairman of the BEP and another panelist not to sign the report of the BEP was justified, as were the
other serious discrepancies that justified discrediting the scoring patterns of the members of the BEP. We therefore believe and hold that upon CARP conducting an investigation of the allegations levied in Co- appellee North Star appeal, and according the appellant the opportunity to defend against the said allegations, CARP was justified in declaring the award of the bid to Western Steel null and void. The irrational, irregular and inequitable manner in which the scores were made, evidenced from the document attached to the letter of May 29, 2014, clearly showed an attempt by the BEP, affirmed by NCPC, to award the bid and contract to Western Steel by giving to that entity scores where it did not meet the requirements in total or in part and hence was not entitled to the same or equal scores with North Star.
Accordingly, we reiterate that CARP, upon review of the documents relating to the bids and scoring which on their face showed a clear abuse of the scoring patterns, was not in error in reversing the bid award and directing that a new BEP be set up to review the bids anew and make a determination thereon, ensuring that proper scores are awarded and reflect the true picture of the bidders fulfilment of the requirements laid down for the bids. In the wake of this holding, we hold also that the trial judge was correct in affirming the action of CARP as being consistent with the facts and the law.
In light of the above, the only further question which we believe warrants our consideration is whether, given what the bid documents and the scoring patterns followed by the BEP and the NCPC reveal, and the clear impression from the documents that had the BEP and NCPC acted properly and followed the criteria laid down for the bidders, Co- appellee North Star would have won the bid and been entitled to the award and the award contract, there is need to have the matter remanded for a new BEP to be set up and a new examination of the bids conducted. We do not believe that such a course is warranted or necessary. The records of the bids and of the scoring patterns followed by the original BEP and subsequent BEPs, as well as the justification documents submitted by the NCPC for the original award and the reaffirming of that award to the appellant; and further, that as the documents showing subsequent action by a new BEP and by the new NCPC and the CARP, available to the CARP and the judge of the Civil Law Court, Sixth Judicial Circuit, Montserrado County, who made the determination of
the petition for judicial review, reveal that there was justification for the conclusions reached that Appellant Western Steel was not entitled to the award and that instead that Co- appellee was entitled to the award, there was no basis for a remand of the case for a new examination to be had by the lower administrative bodies. The CARP had determined, the same as the lower court judge, and with which we have concurred, that the documents are clear on their face that the original BEP and NCPC were clearly in error, both as to the facts and as to the law, in awarding the bid to the appellant when the records showed that not only had the appellant failed to meet several of the required criteria, prerequisites and conditions laid down for successful award of the bid, but that had the BEP and the NCPC followed the guidelines and the very criteria which they had developed and set as conditions for the award of the bids, the obvious winner was or would have been Co- appellee North Star. What is the necessity in our remanding the case for a new determination to be made of the bidding documents? It is the view of this Court that in light of the decision made by the lower court as to the irregularities committed by the original BEP and NCPC, and that had they followed the guidelines for the award of the bid, Co- appellant North Star would have emerged the winner, all of those clearly shown in the documents in the case file, the judge should have so held and ordered that in the face of such clear evidence North Star be awarded the bid. Hence, even as we affirm the ruling of the trial judge, we hold that the same should be modified to obviate the need for any further examination of the bid documents, and that the NCPC should proceed not only to issue the required award certification to North Star but that it should proceed to conclude a contract with that entity as the winner of the bid.
We premise our modification of the ruling of the lower court judge on two factors. Firstly, the Supreme Court has said in a number of Opinions that as part of the authority vested in the Court to affirm, reverse, or modify the rulings of the lower court, it is vested with the power and the authority to render such ruling or judgment as the lower court should have given in the circumstances of the case. The Ministry of Foreign Affairs v. The Intestate Estate of the late Jarbo Sartee, 41 LLR 285 (2002); Emirates Trading Agency Company v. Global Import and Export Company, 42 LLR 204 (2002). In the
instant case, where the records and all the documents reviewed by the Court clearly disclose and show that, except for the irregularities committed in the scoring patterns, the award of the bid would have been made to Co- appellee North Star as opposed to Appellant Western Steel, and which conclusion was recognized both by the reconstituted NCPC and the lower court, there is no rationale for remanding the case for a new examination of the very records and documents already passed upon by all of the mentioned bodies, including this Court. In the circumstances and under the strength of the authority referenced herein above, vested in this Court, we have determined that as no party will suffer any injustice as a result thereof, to enter the judgment which the lower court should have entered and give finality to the proceedings. The records are too clear that Appellant Western Steel did not win and was not entitled to an award of the bids, and hence, the disposition of the matter in its finality under the powers granted this Court would work no injustice to it or to any other party. It is only a prolongation of the disposition that would work an injustice.
The second premise for our decision not to remand the case, given that the records reveal that Appellant Western Steel had not met a number of the requirements to qualify as winner and that Co- appellee North Star had met those requirements and was in fact the winner of the bid, is that a county’s development program has been placed on hold for the period that this case has been in court. We noted before that the matter has been pending now for almost four years. No new bids have been solicited. Rather, the focus has been review of the bid already submitted by the competitors to the bid process. At a time of severe economic constraints and the consequential rollback of the county development programs, further delays in the disposition of the case as would occur by a remand of the case since the remand would require new actions and decisions by the lower bodies, which in turn would be the subject of further unending appeals, we do not believe that the county should be made to suffer what could be tantamount to penalties to its programs and its people.
Moreover, a remand of the case, in the face of the obvious facts revealed in the records, would not only serve no useful purpose but would only prolong the disposition of the matter and impose an injustice upon the
parties and Nimba County and the people of the Nimba County who are the ultimate beneficiaries of the proceeds of the award. This Court is not prepared to indulge in a remand process that would inflict such injury and injustice, especially on an innocent people who had absolutely no say or part to play in the dispute but who would be the victims of a prolonged litigation.
Thus, a remand of the case, when the results are so obvious, would in fact work such hardship and serve no utility. Hence, in such situation, this Court, in the proper exercise of its authority to give such judgment as the lower courts should have given, hereby affirms the ruling of the lower court but with the modification that as the records indicate that North Star won the bid and should have been awarded the bid, the said entity is hereby under the facts of this case declared to be the winner of the bid. As such, NCPC is ordered to proceed to conclude a contract with Co- appellee North Star as per the bid, and to do so expeditiously so that the County and its people reap the long outstanding benefits associated therewith but held up as a result of the contentious litigations.
Wherefore and in view of the foregoing, the ruling of the lower court is affirmed but with the modification that the case not be remanded for any further examination of the bids; that Co- appellee North Star as declared winner of the bid as per the records clearly showing that it had met the bid requirements and that appellant had not; and that NCPC and any other authority responsible for the conclusion of the bid contract are directed to enter into such contract with North Star forthwith as per the bid.
The Clerk of this Court is hereby ordered to send a mandate to the lower court directing the judge presiding therein to proceed to enforce the judgment of this Court, including directing NCPC to act as per the judgment of that court with the modification stated herein. Costs are ruled against the appellant. AND IT IS HEREDY SO ORDERED.