Wheelabrator Technologies Inc., which won a 2010 Central Tenders Committee recommendation for waste management and waste-to-energy engineering in the Cayman Islands, on Thursday challenged in Grand Court a June 2011 decision by then-Premier McKeeva Bush to circumvent the group and award the bid to the Dart group’s DECCO engineering company.
Naming the Queen, the attorney general, the Ministry of District Administration and the premier, Wheelabrator partner Peter Campbell, through attorney H. Phillip Ebanks, petitioned the court to mandate a judicial review of the move, seeking a new tender for waste-management services. The application for judicial review also seeks a declaration that the choice of Dart, its DECCO engineering company and the ForCayman Investment Alliance was illegal, as well as the awarding of unspecified damages and “other relief as this Honourable
Court thinks fit”.
If successful, the application could overturn the Dart group’s designation to both remediate the George Town landfill and build a waste-management facility in Midland Acres, just east of Bodden Town.
Reviewing the background for the lawsuit, Wheelabrator detailed its response to the original 2010 “request for proposals” by the ministry and the Department of Environmental Health. The tender sought “firms to build, design, finance, construct, own and operate a comprehensive solid waste disposal management and waste-to-energy facility”, managing all solid waste for up to 25 years on all three of the Cayman Islands.
The Central Tenders Committee, the suit states, recommended on 17 December, 2010, that negotiations should open with Wheelabrator Technologies Inc.
Dart’s engineering company, DECCO, the suit states, also responded to the request, but “its proposal was ranked either last or second-to-last” by the tenders committee from a list of at least eight bidders.
Despite the committee’s verdict, government opened negotiations with DECCO, awarding the contract to the company six months later, in June 2011.
The decision, described in court documents as “unlawful, ultra vires and illegal”, should be set aside because government “failed to comply with the 2010 Financial Regulations and the Public Management and Finance Law”, which stipulate that any local procurement ensures prices and quality are at least equivalent to any overseas’ bids, and that “the successful bidder shall be selected in accordance with the specified criteria”.
Wheelabrator, the suit claims, had a “legitimate expectation” following its selection by the Central Tenders Committee that it would be “permitted to negotiate in good faith for the award of the contract.
The decision to involve the ForCayman Investment Alliance was “unlawful”, the suit states, “because the decision-maker failed to take into account, as he or she was required to, that the provisions” of the law “had not been complied with” and that government, was in breach of those regulations.
Wheelabrator expressly avoids allegations of corruption, although saying such conduct by government could spark suspicions.
Finally, the suit says, Wheelabrator had delayed Thursday’s motion because of sporadic media reports and inconsistent government details regarding the date of the Dart/DECCO award, while correspondence with the attorney general, never formally closed, had informed his chambers of the ongoing situation.