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Government loses bid to block review of controversial US shipping deal

Puisne Judge Larry Mussenden (Photograph by Akil Simmons)

The Government has failed in its bid to block a judicial review into how it signed a controversial deal without putting the contract out to tender.

The Cabinet Office ministry made a deal with Florida-based exporter Access USA in May 2021 to set up an online shopping and shipping website, MyBermudaPost.

But local couriers complained that the deal was signed before a request for proposal was issued inviting Bermudian-based shippers to submit bids.

In November the Supreme Court granted a request from one island courier – Mailboxes Unlimited – for a review into the legality of the contract.

Last month the Government sought to have that decision overturned, claiming that Mailboxes did not have sufficient standing to call for a review.

But in a ruling handed down last week, Puisne Judge Larry Mussenden said he had “several reasons” for rejecting the Government’s argument.

Mr Justice Mussenden implied that, by signing a contract with an overseas firm before inviting Bermuda companies to submit bids, tendering protocols could have been breached.

He said: “It appears to me, on the facts of this case, that the minister engaged the provision of services from a service provider for the Government.

“In my view, there was a legal duty of fairness and adherence to the statutory procedure owed by the minister to the persons who could provide services to the Government.”

Mr Justice Mussenden also dismissed claims by government lawyer Eugene Johnston that, because Mailboxes did not respond to an initial request for information it had no genuine interest in responding to a request for proposal.

He said: “It seems to me that a RFI is a different animal from a formal bid submitted to offer services.

“The RFI introduction stated that the Government through the Ministry of the Cabinet Office with responsibility for Government Reform is requesting information from interested parties for the purposes of gathering information about the marketplace in order to assist in the determination of future purchasing options for online cross border and global shopping.

“It also included that submissions should include a completed and signed respondent submission form that acknowledges, among other things, that the RFI and any respondent submissions will not create a legal relationship or obligation regarding the procurement of any good or service.

“Thus, I do not understand that the minister is saying that in order to be considered to submit a formal bid that a potential applicant had to submit the RFI.

“If there was any doubt on that point, the acknowledgement seems to remove all doubt that submitting the RFI was a pathway to being allowed to submit a formal bid. In my view, in respect of determining ‘sufficient interest’, there is no merit in this argument that Mailboxes failed to submit a completed RFI.”

Mr Justice Mussenden also rubbished claims by Mr Johnston, that Mailboxes was “concerned with protecting its own interests rather than the procurement process”.

He noted that, in an initial letter to the court, Mailboxes owner Kenny Thomson “addresses possible breaches of procedural fairness and/or legitimate expectations”.

The Government did not respond to requests for comment by press time last night.

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Published June 08, 2022 at 1:48 pm (Updated June 08, 2022 at 1:48 pm)

Government loses bid to block review of controversial US shipping deal

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